Today marks the 45th anniversary of Executive Order 11246, the Executive Order that requires employers that do business with the federal government, either directly or as a subcontractor, to undertake various affirmative action efforts. As the Office of Federal Contractor Compliance (“OFCCP”) holds anniversary parties to celebrate this milestone, it is an ideal time for employers to review whether they are a government contractor and, for those that are, to make sure their affirmative action policies and programs are up to date.
Every employer should review whether it has any government contracts or subcontracts. All too often the human resource professional, who should be administering the affirmative action obligations, is the last to know that the employer has entered into a contract with a federal government agency or contractor.
Moreover, in recent years, the OFCCP has expanded the universe of contractors routinely subject to its audits. For example, the OFCCP now takes the position that many healthcare organizations are federal contractors subject to the affirmative action requirements. See Health Care Providers and Other Companies May Unknowingly Be Government Subcontractors. The OFCCP is also increasing the attention it pays to construction contractors, due in part to the stimulus funds that have been spent.
The affirmative action obligations of government contractors are more involved than just creating a document to place on a shelf. Although hiring discrimination and systemic compensation discrimination continue to be points of emphasis for the OFCCP, the agency has significantly increased its enforcement of provisions dealing with veterans and the disabled, citing employers who fail to take sufficient affirmative action efforts with respect to either of these groups.
The OFCCP’s funding and enthusiasm has only increased under the current administration. Employers that are subject to Executive Order 11246 need to take a proactive approach in response. Some of the questions worth periodic review include:
- Does the employer have a contract with a federal government agency or one of its contractors for the purchase, sale, lease or use of personal property, including supplies and real property, or non personal services, including utilities, construction, transportation, research, insurance and fund depository?
- Have the contractor’s affirmative action programs been reviewed and updated for the year? (Are there placement goals that need to be addressed?)
- Are managers aware of the results of the review and the contractor’s affirmative action obligations?
- Has the contractor reviewed and analyzed its hiring, promotion, termination, compensation and other employment actions for evidence of disparity or areas for improvement? (Has it taken steps to protect the self analysis by utilizing the advice and assistance of counsel?)
- Has the contractor made recent outreach efforts to veterans’ organizations and rehabilitation or other agencies designed to assist the disabled?
- Have job openings been posted with the state workforce agency job bank?
- Are the contractor’s online application and recruitment tools accessible to individuals with visual, sensory, motor or other disabilities?
- Have employees been invited to self identify as veterans or disabled individuals?
- Is an equal opportunity clause and affirmative action notice included in subcontracts?
- Has the contractor filed its EEO 1 and Vets 100/100A forms? (Due September 30)
Since President Lyndon B. Johnson’s signing of Executive Order 11246, the burdens on employers have only increased. The attorneys at Taft are available to assist employers in complying with the many obligations facing federal contractors and subcontractors.