The ABC’s of Affirmative Action

Nondiscrimination and affirmative action are often thought of as the same, but there is a crucial difference. Nondiscrimination focuses on eliminating all existing discriminatory practices and conditions, while affirmative action requires proactive efforts to recruit and employ groups that may have been historically discriminated against.

Since 1965, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has been dedicated to ensuring that government contractors comply with equal employment opportunity and affirmative action provisions. The OFCCP enforces Executive Order 11246, which prohibits federal contractors and federally-assisted construction contractors and subcontractors, doing over $10,000 in government business in one year, from making employment decisions based on race, color, religion, sex, or national origin.

The Executive Order also mandates that government contractors take affirmative action to ensure equal opportunity in all employment aspects. Contractors with 50 or more employees and $50,000 or more in government contracts must develop a written affirmative action program (AAP) for each establishment.

Does Your Organization Need an AAP?
Any non-construction contractor or subcontractor with 50 or more employees is required to develop a written AAP within 120 days from the start of a federal contract. The AAP must be updated annually as long as the federal contract is maintained. If you answer “YES” to any of the following questions, you are required to have a written AAP:

• Is your organization a Prime Contractor or First-Tier Subcontractor accepting $50,000 or more in federal contract revenue?
• Is your organization a financial institution that acts as an issuing and paying agent for U.S. Savings Bonds and Notes?
• Does your organization serve as a depository for federal funds?
• Does your organization have government bills of lading totaling $50,000 or more in a 12-month period?

The High Cost of Non-Compliance
In fiscal year 2023, the OFCCP conducted approximately 898 compliance reviews, spending more time on each review and delving deeper into contractors’ employment practices. Alarmingly, 41% of these reviews resulted in findings of non-compliance. Over the past decade, the OFCCP has imposed nearly $247 million in fines against contractors. If your organization is selected for a compliance review and found non-compliant, you could face severe penalties, including:

• Cancellation of current government contracts.
• Disqualification from receiving future government contracts.
• Awarding of back pay due to pay disparities.
• Fines for non-compliance.
• Potential criminal charges for filing false information.

OFCCP Hot Buttons:

1. Adverse Impact – on decisions related to hiring, promotions, and termination.
2. Expression of Interest – tracking applicants, even those who haven’t formally applied.
3. Compensation – particularly gender disparities.
4. Technical Compliance – common violations include failure to post jobs and lack of diversity outreach.

If you’re unsure whether your organization needs to comply with AAP regulations or if you want a professional review of your plan, MANTEC, in partnership with Ed Crow, is here to help. Don’t wait until a compliance review letter arrives—take action now!

Reach out to Kent and take the first step in preparing your plan affirmative action program.

Email: kent@mantec.org
Phone: 717 873-1292
LinkedIn: https://www.linkedin.com/in/kent-keller-1079a18/