Wiley Rein LLP


Government Contracts | EMPLOYMENT ISSUES IN GOVERNMENT CONTRACTING | Overview of Equal Employment Opportunity and Affirmative Action Obligations for Federal Non-Construction Contractors

Executive Order 11246 (EO 11246) prohibits race, religion, color, gender and national origin discrimination by federal contractors and federal subcontractors.  Furthermore, contractors meeting specific coverage thresholds are required to engage in “affirmative action” to employ and advance minorities and women in employment.  Section 503 of the Rehabilitation Act of 1973 (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) also have nondiscrimination and affirmative action requirements based on disability and veteran status, respectively.  The EO 11246, Section 503 and VEVRAA are enforced by the Department of Labor (DOL) through the Office of Federal Contract Compliance Programs (OFCCP).1

I.          EXECUTIVE ORDER 11246:  AN OVERVIEW

Threshold Coverage.  Federal contractors and subcontractors are required to provide equal employment opportunities to women and minorities if they have (i) government contracts or subcontracts in excess of $10,000; (ii) government bills of lading; (iii) contracts or subcontracts in any amount with depositories of Federal funds or with financial institutions which are issuing and paying agents for U.S. savings bonds and savings notes.  41 C.F.R. § 60-1.5.

Contract Clauses.  A covered contractor must include seven equal opportunity clauses in each of its contracts and subcontracts.  The clauses are set out in 41 C.F.R. § 60-1.4(a).  However, rather than setting forth verbatim each of the clauses, the contractor may incorporate the clauses by reference.  41 C.F.R. § 60-1.4(d).

Advertising Disclaimer.  Employment advertisements or solicitations for employees must contain a disclaimer expressly stating that all applicants for employment will receive consideration for employment without regard to race, color, religion, gender or national origin, (i.e., “This company is an equal opportunity employer”).  41 C.F.R. § 60-1.41.

Postings.  Contractors must post in conspicuous places, available to employees and applicants, an equal employment opportunity posting provided in 41 C.F.R. § 60-1.42.  The Department of Labor makes available a comprehensive poster (commonly known as the “5-in-1” poster) to fulfill these explicit requirements.

Written Affirmative Action Program (AAP).  Service and supply contractors or subcontractors that employ 50 or more employees and either (i) have a federal contract of $50,000 or more; (ii) have government bills of lading, which in any 12-month period total or can reasonably be expected to total $50,000 or more; (iii) serve as a depository of Government funds in any amount; or (iv) are financial institutions which issue and pay U.S. Savings Bonds and Savings Notes in any amount; are required to develop a written AAP for each of their establishments.  41 C.F.R. § 60-1.40.

Standard Form 100 (EEO-1).  Covered prime contractors and first-tier subcontractors that employ 50 or more employees and either: (i) have a federal contract, subcontract or purchase order of $50,000 or more; (ii) serve as a depository of Government funds in any amount; or (iii) are financial institutions which issue and pay U.S. Savings Bonds and Savings Notes; must annually file a Standard Form 100 (also known as “Employer Information Report EEO-1”) with the EEO-1 Joint Reporting Committee.  41 C.F.R. § 60-1.7.  Standard Form 100 requests the employer’s current workforce data for all full-time and part-time employees, broken down by sex and by seven racial/ethnic identifications – Hispanic or Latino; White; Black or African American; Native Hawaiian or Other Pacific Islander; Asian; American Indian or Alaska Native; or Two or More Races – for each of the nine EEO-1 occupational categories.

Document Retention.  Any personnel or employment record (including applicant flow data) made or kept by the contractor shall be preserved by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later.  However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year.  41 C.F.R. § 60-1.12(a).  Furthermore, a contractor subject to EO 11246’s AAP requirements must maintain a copy of its affirmative action plan and all documentation of good faith efforts for the current and preceding year.  41 C.F.R. § 60-1.12(b).

II.        VEVRAA:  AN OVERVIEW

Threshold Coverage.  Federal contractors and subcontractors with a government contract in excess of $25,000/$100,000 are required to provide equal opportunity and take affirmative action for four categories of veterans:  (i) disabled veterans; (ii) recently separated veterans (i.e. veterans who were discharged or released from active duty within the last three years); (iii) Armed Forces service medal veterans (i.e. veterans who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a U.S. military operation for which an Armed Forces service medal was awarded pursuant to E.O. 12985); and (iv) other protected veterans (i.e., veterans who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense).2 41 C.F.R. § 60-250.4; 41 C.F.R. § 60-300.4; 38 U.S.C. § 4212.

Contract Clauses.  A covered contractor must include eleven equal opportunity clauses concerning covered veterans in each of its contracts and subcontracts.  The clauses are set out in 41 C.F.R. § 60-250.5; 41 C.F.R. § 60-300.5.  However, rather than setting forth verbatim each of the clauses, the contractor may incorporate the clauses by reference.  41 C.F.R. § 60-250.5(d); 41 C.F.R § 300.5(d).

Notification of Job Openings.  Contractors must list all employment openings, except executive and senior management openings, positions filled from within the contractor’s organization and positions lasting three days or less, with the appropriate state workforce agency job bank or the local employment service delivery system where the opening occurs.  41 C.F.R. § 60-250.5(a)(2); 41 C.F.R. § 60-300.5(a)(2).

Postings.  Contractors must post in conspicuous places, available to employees and applicants, a VEVRAA posting as provided in 41 C.F.R. § 60-250.5(a)(9) and 41 C.F.R. § 60-300.5(a)(9).  The Department of Labor’s “5-in-1” poster fulfills these explicit requirements.

Written Affirmative Action Program.  Federal contractors or subcontractors with (i) 50 or more employees and (ii) a government contract for $50,000 or more (entered into before December 1, 2003); or $100,000 or more (entered into or modified on or after December 1, 2003), are required to develop a written AAP for each of their establishments.  41 C.F.R. § 60-250.40; 41 C.F.R. § 60-300.40.

Invitation to Self-Identify.  After making an offer of employment but before the applicant begins employment duties, a contractor must invite an applicant to inform the contractor if the applicant believes that he or she is a disabled veteran who may be covered by the act.  A contractor may also invite self-identification by disabled veterans prior to making a job offer, but only when the contractor actually is undertaking affirmative action for disabled veterans at the pre-offer stage, or the invitation is made pursuant to a federal, state or local law requiring affirmative action for disabled veterans.  41 C.F.R. § 60-250.42(a); 41 C.F.R. § 60-300.42(a).  Contractors must also, at any time before the applicant begins employment duties, invite applicants to inform the contractor if the applicant believes that he or she is a recently separated veteran, Armed Forces services medal veteran, or other protected veteran who may be covered by the act.  41 C.F.R. § 60-250.42(b); 41 C.F.R. § 60-300.42(b). 

VETS – 100 & 100A Forms.  In addition, federal contractors who receive contracts or subcontracts from the Federal Government are subject to the following annual reporting requirements:

  • VETS-100: Any contractor who holds a contract or subcontract in the amount of $25,000 or more that was made or modified before December 1, 2003, must annually file a Federal Contractor Veterans’ Employment Report (VETS-100).  41 C.F.R. § 61-250.11.  The contractor must report the number of employees who are Vietnam era veterans, special disabled veterans and other protected veterans; broken down into the nine EEO-1 job categories.  Employers also must report the total number of new hires during the period covered by the report and the number of new employees hired during the previous twelve months who are special disabled veterans, Vietnam era veterans, newly separated veterans and other protected veterans; broken down into the nine EEO-1 job categories. 
  • VETS-100A: Any contractor who entered into or modified a contract or subcontract on or after December 1, 2003 in the amount of $100,000 or more must annually file a VETS-100A form in lieu of the VETS-100 form.  41 C.F.R. § 61-300.11.  The contractor must report the total number of employees and number of new employees hired in the previous 12 months who were: discharged or released because of a service related disability (regardless of the disability rating); recently separated veterans; Armed Forces service medal awardees; and other protected veterans.  There is no requirement to report Vietnam era veterans.  Contractors and subcontractors must collect the relevant information for calendar year 2008 and include that data in the VETS-100A report by September 30, 2009.
  • If a contractor has both kinds of contracts, i.e. one made or modified before December 1, 2003 amounting to $25,000 or more, and one made or modified on or after December 1, 2003 amounting to $100,000 or more, it must file both the VETS-100 and the VETS-100A report. 

Document Retention.  Any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year.  41 C.F.R. § 60-250.80(a); 41 C.F.R. § 60-300.80(a).

III.       SECTION 503 OF THE REHABILITATION ACT OF 1973: AN OVERVIEW

Threshold Coverage.  Federal contractors and subcontractors with government contracts in excess of $10,000 are required to take affirmative action to employ and advance in employment qualified individuals with disabilities.  29 U.S.C. 793(a).

Contract Clauses.  A covered contractor must include six affirmative action clauses concerning disabled individuals in each of its contracts and subcontracts.  The clauses are set out in 41 C.F.R. § 60 741.5.  However, rather than setting forth verbatim each of the clauses, the contractor may incorporate the clauses by reference.  41 C.F.R. § 60 741.5(d).

Postings.  Contractors must post in conspicuous places, available to employees and applicants, a disability posting as provided in 41 C.F.R. § 60-741.5(a)(4).  The Department of Labor’s “5-in-1” poster fulfills these explicit requirements.

Written Affirmative Action Program.  Federal contractors or subcontractors with: (i) 50 or more employees and (ii) a government contract valued at $50,000 or more are required to develop a written AAP for each of their establishments.  41 C.F.R. § 60-741.40.

Invitation to Self-Identify.   Contractors, after making an offer of employment but before the applicant begins employment duties, must invite an applicant to inform the contractor if the applicant believes that he or she is covered by the act.  A contractor may also invite self-identification prior to making a job offer, but only when the contractor actually is undertaking affirmative action for individuals with disabilities at the pre-offer stage, or the invitation is made pursuant to a Federal, state or local law requiring affirmative action for individuals with disabilities.  41 C.F.R. § 60-741.42.

Document Retention.  Any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year.  41 C.F.R. § 60-741.80(a).

IV.       WRITTEN AFFIRMATIVE ACTION PROGRAMS

While EO 11246, VEVRAA and Section 503 all impose written AAP obligations on covered contractors; they each require different elements to be included in their respective written AAPs.

EO 11246 Affirmative Action Plans.  Written AAPs created pursuant to EO 11246 are both statistical and narrative and must contain the following 10 components:

  • An organizational profile, providing the OFCCP with a numeric depiction of the staffing pattern within a contractor’s establishment, 41 C.F.R. § 60-2.11;
  • A job group analysis, combining job titles within a contractor’s establishment into manageable groups for purposes of statistical analysis, 41 C.F.R. § 60-2.12;
  • Incumbent placement percentages, identifying the percentage of minorities and women employed within each established job group, 41 C.F.R. § 60-2.13;
  • A determination of availability, estimating the number of qualified minorities or women available for employment within each established job group, 41 C.F.R. § 60-2.14; 
  • A comparison of incumbency and availability, identifying areas where minorities or women are under-utilized, 41 C.F.R. § 60-2.15;
  • Stated placement goals, creating objectives or targets reasonably attainable given the circumstances so as to measure progress towards achieving equal employment opportunity, 41 C.F.R. § 60-2.16;
  • Designation of responsibility for the implementation of the AAP to an official within the contractor’s organization, 41 C.F.R. § 60-2.17(a);
  • Identification of problem areas, providing in-depth analysis of the workforce by organizational unit and job group, personnel activity, compensation systems, personnel procedures and any other areas of operation to determine whether and where impediments to equal employment opportunity exist, 41 C.F.R. § 60-2.17(b);
  • Stated action-oriented programs, spelling out programs designed to correct any problem areas identified by the affirmative action plan analysis, 41 C.F.R. § 60-2.17(c); and
  • Planned periodic internal audits, providing an auditing system that periodically measures the effectiveness of its total affirmative action program, 41 C.F.R. § 60-2.17(d).
  • VEVRAA Affirmative Action Plans.  Written AAPs created pursuant to VEVRAA are not required to include the in-depth statistical analysis required by EO 11246.  Rather, they are comprised of a narrative discussing the following issues:
  • The contractor’s equal opportunity policy, including affirmative obligations and non-retaliation protections, 41 C.F.R. § 60-250.44(a); 41 C.F.R. § 60-300.44(a);
  • Periodic review of the contractor’s personnel processes, 41 C.F.R. § 60-250.44(b); 41 C.F.R. § 60-300.44(b);
  • Periodic review of the contractor’s physical and mental job qualifications, 41 C.F.R. § 60-250.44(c); 41 C.F.R. § 60-300.44(c);
  • Reasonable accommodation efforts for physical and mental limitations, 41 C.F.R. § 60-250.44(d); 41 C.F.R. § 60-300.44(d);
  • Anti-harassment procedures, 41 C.F.R. § 60-250.44(e); 41 C.F.R. § 60-300.44(e);
  • Appropriate dissemination of policy, outreach and positive recruitment efforts, as outlined in detail in the regulations, 41 C.F.R. § 60-250.44(f); 41 C.F.R. § 60-300.44(f);
  • Internal dissemination of affirmative action policies, 41 C.F.R. § 60-250.44(g); 41 C.F.R. § 60-300.44(g);
  • An audit and reporting system measuring the effectiveness of the AAP, 41 C.F.R. § 60-250.44(h); 41 C.F.R. § 60-300.44(h);
  • Designation of responsibility for the implementation of the AAP to an official within the contractor’s organization, 41 C.F.R. § 60-250.44(i); 41 C.F.R. § 60-300.44(i); and
  • Training for all personnel involved in recruitment, screening, selection, promotion discipline and other related processes, 41 C.F.R. § 60-250.44(j); 41 C.F.R. § 60-300.44(j).

Section 503 Affirmative Action Plans.  Written AAPs created pursuant to Section 503 contain many of the same elements as those created pursuant to VEVRAA.  Because there are such significant similarities between the written AAP requirements of VEVRAA and Section 503, it is possible to develop a single written AAP to comply with both laws.  There are differences, however, that should be noted.  As compared to VEVRAA, Section 503 has a less detailed and burdensome positive recruitment efforts requirement.  The requirements for a written AAP created pursuant to Section 503 are set forth below:

  • The contractor’s equal opportunity policy, including affirmative obligations and non-retaliation protections, 41 C.F.R. § 60-741.44(a);
  • Periodic review of the contractor’s personnel processes, 41 C.F.R. § 60-741.44(b);
  • Periodic review of the contractor’s physical and mental job qualifications, 41 C.F.R. § 60-741.44(c);
  • Reasonable accommodation efforts for physical and mental limitations, 41 C.F.R. § 60-741.44(d);
  • Anti-harassment procedures, 41 C.F.R. § 60-741.44(e);
  • Appropriate dissemination of policy, outreach and positive recruitment efforts, as outlined in detail in the regulations, 41 C.F.R. § 741.44(f);
  • Internal dissemination of affirmative action policies, 41 C.F.R. § 741.44(g)
  • An audit and reporting system, measuring the effectiveness of the AAP, 41 C.F.R. § 741.44(h)
  • Designation of responsibility for the implementation of the AAP to an official within the contractor’s organization, 41 C.F.R. § 60-741.44(i); and
  • Training for all personnel involved in recruitment, screening, selection, promotion discipline and other related processes, 41 C.F.R. § 741.44(j).

It should also be noted that VEVRAA and Section 503 require that the written AAP be made available for inspection by applicants and employees, while EO 11246 does not include such a requirement.  41 C.F.R. §§ 60-250.44; 60-741.44.

V.        NON COMPLIANCE PENALTIES

In the event of the contractor’s noncompliance with the nondiscrimination clauses, or any of the rules, regulations or orders enforcing Executive Order 11246, VEVRAA or the Rehabilitation Act, the contractor and subcontractor may be subject to sanctions, penalties and liabilities.  Among the consequences of non-compliance are the following:

  • Contractor may be debarred and declared ineligible for any future government contracts;
  • Contract may be canceled, terminated, or suspended in whole or in part;
  • For subcontractors, liability may exist if debarment causes the prime contractor to be in breach of the prime contract; and
  • Where a violation is material, the Department of Justice may bring suit to enforce the regulations or enjoin noncompliance; the Department of Justice is also authorized to bring a criminal action for the furnishing of false information to the DOL.

The OFCCP will generally enter into mediation, conciliation or settlement for any violations before a contract is canceled or terminated.

End Notes:
1. This document provides an overview highlighting significant obligations for federal contractors and subcontractors, but should not be construed as providing legal advice or opinions.  You should consult an attorney for obtaining legal advice on the intricacies of these obligations.

2. The regulations found at 41 C.F.R. Part 60-250 generally apply to government contracts of $25,000 or more entered into before December 1, 2003.  The regulations continue to cover Veterans of the Vietnam Era, although this category has been abolished by statute.  The regulations found at 41 C.F.R. Part 60-300 apply to government contracts of $100,000 or more entered into on or after December 1, 2003.  The regulations found at Part 60-300 also apply to government contracts if they were modified on or after December 1, 2003 and meet the $100,000 threshold requirement. 

Top of the Page
SPECIALISTS

PARTNER

Todd A. Bromberg Download v-card tbromberg@wileyrein.com 202.719.7357 Subscribe to RSS



Top of the Page


If no erection lasts buy viagra without a prescription, or earlier, you should seek medical.