What are the policies of affirmative action?

A company representative asked the following question: Our company started out very small, but we have been growing. The company may have to comply with certain affirmative action requirements as we get larger. What are these requirements? To whom do they apply?

All but the smallest government contractors are required to maintain affirmative action programs for specific groups of people and to report their progress with those programs on a regular basis. The starting point is Executive Order 11246, which requires every employer of 50 or more people to prepare an affirmative action program for minorities and women within 120 days of receiving of its first $50,000 in government contracts. [See 41 C.F.R. & Sect; 60-1.4.] As part of the affirmative action program, the contractor must analyze how it relies on minorities and women to do business, and establish goals and timetables for correcting any underutilization. The contractor must make good faith efforts to achieve the goals and must update it annually.

The program is not filed with the government but must be kept available in the event of a review. Reviews are conducted by the Office of Federal Contract Compliance Programs (OFCCP). Failure to have an affirmative action program can result in sanctions, including cancellation or suspension of existing contracts and being barred from future contract awards. Contractors that are subject to the affirmative action requirement for women and minorities must file an EEO-1 form with the OFCCP by Sept. 30 of each year. The report is to include information on the company's work force, broken into nine job categories as defined by the Equal Employment Opportunity Commission. The report must identify the total number of employees in each job category, the number of male and female minority employees in each category, and other information. Information must be provided separately for each site at which 50 or more employees are located, the company's primary office and the company overall. Federal law also requires the recipient of any contract of $25,000 or more to take affirmative action to hire and promote qualified veterans. [See 38 U.S.C. & Sect; 4212(a); 41 C.F.R. & Sect; 60-250.4, .23.]

The affirmative action plan for veterans may be integrated with or kept separate from other affirmative action plans that the contractor must prepare. [See 41 C.F.R. & Sect; 60-250.5(a).] Among other things, the contractor must review its personnel policies to ensure that they do not prevent full and fair consideration of veterans for available positions or promotions. Also, the contractor must be able to show that it is engaged in outreach and positive recruitment of qualified veterans. Contractors that are subject to the affirmative action requirement for veterans must file a VETS-100 form with the Labor Department by Sept. 30 of each year. The report must identify the number of "special-disabled veterans," "Vietnam-era veterans" and other qualified veterans employed in each category and related information.

Labor also requires that every government contract in excess of $10,000 is to contain a clause requiring the contractor to take affirmative action in hiring and promoting people with disabilities. (See 41 C.F.R. & Sect; 60-741.5.) Again, this affirmative action plan may be integrated with or kept separate from other affirmative action plans that the contractor must prepare. [See 41 C.F.R. & Sect; 60-741.40(b).] As part of the plan, the contractor must detail its personnel practices and efforts to hire and promote qualified people with disabilities.

The affirmative action plan for people with disabilities is entirely narrative.

Many contractors ask all job applicants and all new hires to complete a questionnaire to identify their race and gender. This questionnaire is used solely to assist the company in complying with federal laws and should contain a disclaimer to that effect. Also, companies subject to the affirmative action requirements for veterans and for people with disabilities must provide their applicants and new hires a separate "Invitation to Self-Identify," to let them state whether they are a veteran or a disabled person. [See 12 C.F.R. & Sect; 60-250.5(d), 60-741.42.]

Collecting the information, developing the plans and preparing the reports are extremely sensitive and specialized efforts. Any company that is just starting to deal with these requirements should get help from someone who is experienced in this area.

--Peckinpaugh is a member of the government contracts section of the law firm Winston & Strawn, Washington, D.C.


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