What Is an Affirmative Action Plan?
An Affirmative Action Plan (AAP) is a tool used by management to create equal employment opportunities for all applicants.8 min read
What Is an Affirmative Action Plan?
An Affirmative Action Plan (AAP) is a tool used by management to create equal employment opportunities for all applicants and existing employees. To remain in compliance with U.S. federal regulations, all contractors doing business with the U.S. Federal government who meet certain employment and contract levels are required to have such a program.
Minorities and women aren't employed at the rate which could be expected, considering their availability in a relevant labor pool. Using quantitative analysis, affirmative action plans compare the composition of a contractor's workforce to that of other relevant labor pools.
The programs are designed to be action-oriented, containing practical steps that are created to address the underemployment of these demographics. The most effective affirmative action plans also contain internal reporting and auditing systems that measure the progress that contractors make in assembling a workforce that would be expected if there is no discrimination in the hiring process.
All of the practices, policies, and procedures that a U.S. federal contractor would implement in order to make sure that all qualified employees and applicants have an equal opportunity for advancement, recruitment, and all other aspects of employment are found in an affirmative action plan.
Criteria Requiring an AAP
Organizations may voluntarily choose to create an affirmative action plan for political, internal, or other reasons. Employers do have to keep in mind the laws from the Equal Employment Opportunity Commission (EEOC). However, the only businesses that are required to have in place an updated written affirmative action plan are federal contractors or subcontractors who:
- Have 50 or more workers.
- Have bills of lading from the government which total at least $50,000 in any given 12 consecutive months.
- Serve as a depository for any amount of Government funds.
- Are financial institutions that are paying or issuing agent for notes of any amount or U.S. Savings Bonds.
Contractors are required to maintain affirmative action plans for all locations that have a total workforce of at least 50 people according to the criteria stipulated by the U.S. Federal Government.
This means that the definition of "contractor" could possibly include, for instance, banks, universities, medical centers or hospitals, and defense contractors as well as companies leasing property to the government.
Maintaining AAP Compliance
Regulations governing the creation of an affirmative action plan are based on Executive Order 11246, which became law in 1965.
The Standard Federal Equal Employment Opportunity Construction Contract Specifications, referred to as the "Specifications," not only describe the obligations of affirmative action, but also specify the affirmative action steps that construction contractors are required to implement in order to show a real intention to reach the goals for female and minority participation that their bid solicitation lists.
- Providing and maintaining workplace environments that are completely free of any kind of coercion, intimidation, and harassment in every work facility.
- Assigning at least two women to every construction project whenever possible.
- Contractors must make sure that all supervisory personnel on site are not only aware of the contractor's obligation to maintain that environment, but that they will carry it out with particular attention directed to women and minorities.
- A list of female and minority recruitment resources must be established, maintained, and kept current. Written notification must be provided to female and minority recruitment resources, as well as to community organizations, whenever contractors or their unions have employment opportunities. Contractors must also maintain a record of any responses they receive.
- Maintaining a current file containing the names, addresses, and phone numbers for every female and minority applicant that is off-the-street or a referral from a community organization, recruitment source or union, and a record of all actions taken with each person.
- Whenever a person was directed to the union hiring hall for a referral and was not referred back to the Contractor or was not hired after being referred, documentation of the circumstances must be provided in the file, including the reason and any other actions that were taken.
- Whenever the Contractor notices that the union referral process has obstructed the Contractor's attempts to comply with regulations, or when a female or minority person the Contractor sends to a union with which the Contractor has a collective bargaining agreement has not been referred, immediate written notification should be provided to the Union Director.
- Developing programs relevant to the needs of the Contractor, particularly those approved or funded by the Department of Labor, such as opportunities for on-the-job training and training program participation in the areas that specifically include women and minorities, including program upgrades, trainee programs, and apprenticeships.
- Providing the EEO policy to training programs and unions, as well as asking for their cooperation in helping the Contractor to meet its EEO requirements.
- Contractors are required to include their EEO policy in any collective bargaining agreement or policy manual, annual reports, a company newsletter, etc., and to conduct reviews of the policy with all female and minority employees and company management personnel a minimum of once every year.
- Contractors must display their EEO policy on a bulletin board that all employees are able to access at every work location.
- The Contractor's affirmative action plan obligations and EEO policy must be reviewed at least once a year with on-site supervisory personnel, as well as all employees that have any responsibility for assignment, hiring, termination, layoff or any other employment-related decisions before work begins on all job sites.
- A written account of the meeting shall be established and maintained, identifying the persons attending, place, time, matters discussed, and their disposition.
- Their EEO policy should be externally disseminated by including it in all media marketing, particularly female and minority-related media, as well as offering a written EEO policy notification to other Contractors and Subcontractors the Contractor currently does business with or anticipates doing business with, and discussing EEO policy with them.
- Contractors must send notification to the organizations listed above that describes the tests, screening procedures, and job openings that are used in the hiring process no later than a month before the acceptance date for applications to training by any recruitment source.
- Encourage female and minority employees already present to recruit other women and minorities and, whenever possible, to provide vacation, summer, and after-school employment to female and minority youth in any possible areas of the Contractor's workforce, both on and off site.
- Whenever Contractors are obligated by 41 CFR part 60-3, they must validate any tests or other hiring requirements.
- All female and minority personnel, at the very least, should be evaluated and inventoried a minimum of once every year for opportunities to be promoted and to encourage them to seek those opportunities or prepare for them with relevant training.
- All employment and personnel-related activities should be monitored continually to make sure that the Contractor's obligations and EEO policy are both being carried out, and to make sure that personnel practices such as job classifications, work assignments, and seniority practices are not affected by discrimination.
- All company activities and facilities must remain non-segregated except for single-user or separate restrooms and any necessary dressing facilities that will be provided to maintain privacy between the sexes.
- A record of all solicitations of offers for subcontracts from female and minority construction suppliers and contractors must be documented and maintained, including the circulation of solicitations to business, female, and minority contractor associations.
- A review of the performance under and adherence to affirmative action obligations and Contractor's EEO policies for all supervisors should be conducted at least once a year.
What Is the Office of Federal Contract Compliance Programs (OFCCP)?
The Office of Federal Contract Compliance Programs (OFCCP) is responsible for enforcing affirmative action plans and has issued a compliance guide for their staff to use. All federal contractors or subcontractors who are obligated to create and maintain an affirmative action plan may be randomly selected for auditing by the OFCCP. The OFCCP has six regional offices around the country, and they oversee about 48 local offices, referred to as Area or District offices.
These offices are usually occupied by compliance officers who are responsible for conducting compliance evaluations. All government contractors are required to prepare and update their affirmative action plans every year. They are not submitted to the government automatically.
Similar to the way the IRS conducts audits, the OFCCP hires contractors to conduct compliance evaluations, then informs the contractors of their selection by sending them scheduling letters.
Contractors may be requested to provide a copy of their written affirmative action plan, as well as other data that will be reviewed by the OFCCP in a desk audit. That might be followed by a review at the contractor's location.
According to OFCCP estimates, an average of almost 200 labor hours are required for contractors to create, maintain, and annually update their affirmative action plans. However, it's possible for that number to grow to almost 400 hours for contractors with more than 500 employees. That doesn't even include the hours spent on third-party disclosures and scheduling letters.
Employers are required by the OFCCP to reach specified numeric goals in documenting compliance. For instance, 7 percent of all workers in each of a company's job groups are required to be individuals with disabilities (IWD). The same disabilities rule also stipulates that employers must compare the number of IWD who apply for jobs to the number of IWD who are hired, and those records must be kept for audit purposes for three years.
Staff Affirmative Action Plan
The purpose of an affirmative action plan is to serve as a guide to underrepresentation in the workforce. The UC Berkeley Staff Affirmative Action Plan, for instance, serves as a working document that outlines UC Berkeley's policies, responsibilities, priorities, and programs for ensuring equal employment opportunity and affirmative action.
The University sets yearly placement or recruitment goals for minorities and women, hiring benchmarks for protected veterans, and utilization goals for individuals with disabilities.
As an employer that receives federal contract and grants funds, the University of California must maintain an affirmative action plan. The plan is evaluated, monitored, and updated annually. UC Berkeley produces separate affirmative action plans for academic staff and non-academic staff.
The affirmative action plan and goals for academic employees is produced by the Office for Faculty Equity & Welfare. Some details and requirements include the following:
- Applying the "internet applicant" rule ensures that that electronic inquiries and applications will be handled in the same way they are handled for other groups that are covered by affirmative action (race, color, religion, sex, or national origin).
- The two-year record-keeping requirement has been changed to three years.
- The requirement in the disabilities rule to review all mental and physical standards for job qualifications every year has been removed. It has been replaced with a requirement for contractors to create their own schedules for reviewing job qualifications.
- Analysis of utilization that includes the placement of incumbents in job groups by number and percentages of minorities and women.
- Addition of a requirement to designate responsibility for the implementation of the affirmative action plan.
- Problem areas must be identified, followed by the establishment of action-oriented goals.
- Comparison and analysis of the progress of the affirmative action plan between prior year AAP and current year AAP should occur, as well as analysis of minority and female goal placement rate percentage and actual placement rate percentage, by job group and analysis of good faith efforts.
- Reporting of any foreseeable or current EEO problem areas by supervisors or managers, including an outline of recommendations or suggestions for resolution of the issues.
- Discussions between HR managers and senior management about any problems relating to EEO changes, significant rejection ratios, etc.
- Reporting to senior management by the HR manager on the status of the organization's affirmative action plan objectives and goals.
- Regular reviews of advertising, job application, and recruitment procedures to maintain equal opportunity employment and make sure that there is no discrimination.
- Job openings must be posted to the local employment service delivery system and state workforce agency job bank whenever the opening satisfies the job listing requirements of each employment service.
OFCCP has found that there is a definite positive correlation between the absence of discrimination and the presence of an affirmative action plan when it is used as a management tool. This results in a stronger workforce for the companies involved.
If you need help with affirmative action plans, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.