February 6, 2020

What Every Federal Construction Contractor Should Know About the November 2019 Update to the Technical Assistance Guide

By: Sarah K. Carpenter at Smith Currie & Hancock LLP 

The Department of Labor (“DOL”) Office of Federal Contract Compliance Programs (“OFFCP”) issued its 148-page Construction Contractor Technical Assistance Guide (the “Guide”) on November 13, 2019. A complete copy of the Guide can be found here but the below provides a summary of what every Federal Construction Contractor should know regarding the OFCCP’s November 2019 update to its prior 2006 publication.

The DOL has identified the Guide as a “self-assessment tool” to assist contractors in meeting “their legal requirements and responsibilities for equal employment opportunity by preventing violations before they occur.” However, the Guide does not create or impose new requirements for Federal Construction Contractors. Instead, the Guide provides an overview of anti-discrimination and affirmative action requirements and obligations under existing laws and regulations with suggests best practices and guidance. Specifically, the Guide provides:

A concise summary of Federal Construction Contractors’ legal obligations under the three main laws enforced by the OFCCP: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974;
A detailed explanation of requirements for written Affirmative Action Plans;
A clear schedule of Standard Federal Equal Employment Opportunity Construction Contract Specifications;
A reorganized recap of the sixteen affirmative action steps Federal Construction Contractors are required to implement in good-faith; and
A user-friendly roadmap of what to expect during an OFCCP audit, including a discussion of record keeping requirements.

Experienced Federal Construction Contractors are likely already familiar with the requirements of Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 (“Section 503”), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”). But, to provide a refresher for those that know and a summary for those that do not, collectively, these three laws set out the following Federal Construction Contractor obligations:

• Do Not Discriminate

Federal Contractors and Subcontractors are prohibited from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, status as a protected veteran, or protected actions such as inquiring about, discussing, or disclosing their compensation or that of others.

• Take Affirmative Action

Federal Contractors and Subcontractors are required to act affirmatively to ensure equal employment opportunity in their employment processes.

Executive Order 11246

Who Does It Apply to?

Generally, Executive Order 11246 applies to Federal Contractors and Subcontractors, with any number of employees, entering into direct or federally-assisted federal contracts or subcontracts for more than $10,000. However, only contractors with 50 or more employees who enter into contracts for more than $50,000 are required to maintain written affirmative action plans.
What Does It Require?
Executive Order 11246 prohibits employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin; promotes pay transparency by prohibiting discrimination against employees for discussion of their pay; and requires contractors to make good-faith efforts to meet participation goals for women and minorities by taking sixteen affirmative action steps.

What Are the Sixteen Affirmative Action Steps?

The Guide explains each of the sixteen affirmative action steps and related best practices. Generally, the steps can be grouped to correspond to the following critical personnel activities:

Recruitment Practices
Training
Equal Employment Opportunity Policy and Implementation
Personnel Operations
Contracting Activity

What Are Some of the Best Practices That Are Suggested?

The Guide suggests best practices such as encouraging current women and minority employees to recruit other women and minority candidates, keeping records of such recruitment efforts, and briefing onsite supervisors regarding policies and affirmative action obligations prior to beginning work onsite.

Section 503 of the Rehabilitation Act of 1973

Who Does It Apply to?

Section 503 applies to Federal Contractors and Subcontractors, with any number of employees, entering into direct federal contracts or subcontracts for more than $15,000. However, only contractors with 50 or more employees who enter into contracts for more than $50,000 are required to maintain written affirmative action plans. Unlike Executive Order 11246, Section 503 does not apply to federally-assisted contracts.

What Does It Require?

Section 503 prohibits employment discrimination on the basis of disability and requires federal contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities.

What Are Some of the Best Practices That Are Suggested?

The Guide discusses Federal Contractor options such as developing and maintaining affirmative action plans by geographical area or company-wide and provides examples of outreach sources for positive recruitment for individuals with disabilities.

Vietnam Era Veterans’ Readjustment Assistance Act of 1974

Who Does It Apply to?

Section 503 applies to Federal Contractors and Subcontractors, with any number of employees, entering into direct federal contracts or subcontracts for more than $150,000. Only contractors with 50 or more employees who enter into contracts for more than $150,000 are required to maintain written affirmative action plans. Similar to Section 503, VEVRAA does not apply to federally-assisted contracts.

What Does It Require?

VEVRAA prohibits employment discrimination against protected veterans (disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and Armed Forces Service Medal veterans) and requires contractors to take affirmative action to employ and advance in employment protected veterans.

What Are Some of the Best Practices That Were Suggested?

The Guide discusses Federal Contractor options such as developing and maintaining a single affirmative action plan that complies with both Section 503 and VEVRRA and provides examples of outreach sources for positive recruitment for protected veterans.

In addition to the summary of legal obligations and suggested best practices, a majority of the Guide consists of helpful appendices such as sample notices, equal employment opportunity contract clauses, and participation goals for minorities and women. Additional information for Federal Construction Contractors can be found at the OFFCP’s recently-launched Construction-focused website which provides useful tools such as a user-friendly breakdown of the threshold requirements for the certain laws and regulations, a list of best practices for Federal Construction Contractors and Subcontractors, and answers to frequently asked questions on Nondiscrimination in Construction Trades.

Recommendations

We recommend that Federal Construction Contractors and Subcontractors use the Guide for its stated purpose – as a self-assessment tool to ensure compliance with anti-discrimination and affirmative action obligations in order to prevent violations before they occur. If you would like additional information regarding any anti-discrimination and/or affirmative action obligations you may have under the law, or if you would like assistance reviewing your record retention plans, affirmative action policies, and other policies for compliance with the law and best practices, you should contact your counsel.

 

The views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.