OFCCP’s Technical Assistance Guide for non-construction companies provides valuable insights into the agency’s requirements and an overview of the agency’s operations and practices. During 2021, we will explore the information in this Technical Assistance Guide (TAG). We will start where the TAG starts: with a discussion of the laws that OFCCP enforces. As this series continues, we will examine the following sections of the TAG:
- The notices required by the agency
- The basic contents for each type of affirmative action program
- What to expect during a compliance evaluation
- Appendices that provide guidance on specific subjects such as disparity and compensation analyses
OFCCP Has Multiple Technical Assistance Guides
OFCCP has multiple technical assistance guides that have been released in the last few years. During this series, we will be focusing on the TAG for federal contractors and subcontractors that provide supplies and services to the federal government. Among the other TAGs are a TAG for small federal contractors, a TAG for construction contractors, and a TAG for educational institutions. Copies of all of these TAGs can be found on OFCCP’s website. All of the TAGs are either new or have been recently updated. They reflect many of OFCCP’s recent regulations, initiatives, and priorities.
One issue associated with all of OFCCP’s TAGs is that they are often outdated as soon as they are published. That is especially true as OFCCP experiences a change in leadership. The priorities of OFCCP Director Craig Leen may be significantly changed by Director Jenny Yang. Even when leadership of the agency does not change, new regulations and new initiatives may affect the contents of a TAG. It is important to recognize that a TAG provides insight into OFCCP’s thinking at a particular time. Some basic information in a tag may be relevant for many years; some may no longer be accurate as changes occur at OFCCP.
Laws Enforced by OFCCP
The Technical Assistance Guide for supply and service organizations begins with OFCCP’s mission and responsibilities, and then provides an overview of the laws enforced by the agency. As the TAG notes, there are three legal authorities that govern the agency’s actions:
- Executive Order 11246 as amended
- Section 503 of the Rehabilitation Act of 1973 (referred to as Section 503)
- The Vietnam Era Veteran’s Readjustment Assistance Act of 1974 (referred to as VEVRAA)
While Executive Order 11246 was not passed as a law by Congress, it has the full force and effect of law just the way that Section 503 and VEVRAA do.
The TAG states that OFCCP also has enforcement responsibilities for parts of the Americans with Disabilities Act of 1990 (the ADA) as well as Title VII of the Civil Rights Act of 1964. The primary responsibility for administering these laws falls to the Equal Employment Opportunity Commission. However, as the TAG indicates, OFCCP may process complaints arising from the ADA or Title VII as OFCCP enforces its three legal authorities.
NOTE: Part of our discussion below revolves around the thresholds for the basic affirmative action and equal opportunity requirements. More information about jurisdictional thresholds, including the contract amount and employee count thresholds associated with the requirement to create affirmative action programs, can be found in this infographic.
Executive Order 11246
Executive Order 11246 has been amended a number of times since it was adopted in 1965. The Executive Order now prohibits employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin. In its overview of laws, the TAG does not specifically mention the affirmative action provisions associated with Executive Order 11246 that require outreach for minorities and females. These affirmative action provisions are discussed in the affirmative action program sections of the TAG.
The TAG states that Executive Order 11246 applies to organizations that have a federal contract or subcontract over $10,000. Executive Order 11246 also applies when organizations have multiple contracts or subcontracts during a 12-month period that “can reasonably be expected to total more than $10,000.” This threshold does NOT trigger the affirmative action program requirements, but it does trigger other requirements discussed later in the TAG.
Section 503 prohibits employment discrimination on the basis of disability. The overview of Section 503 in the TAG also explicitly states that Section 503 “requires federal contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities.” Organizations covered by Section 503 must also make reasonable accommodations for applicants or employees with disabilities.
The TAG states that Section 503 covers organizations “with at least one government contract in excess of $15,000.” While the TAG does not explicitly mention this in the overview, this threshold also applies to subcontractors. This $15,000 threshold does NOT trigger the affirmative action program requirements for Section 503.
VEVRAA prohibits employment discrimination against “protected veterans” and requires affirmative action to employ and advance in employment protected veterans. The TAG mentions four classes of protected veterans:
- Disabled veterans
- Recently separated veterans
- Active duty wartime or campaign badge veterans
- Armed Forces Service Medal veterans
The overview of VEVRAA in the TAG does not provide definitions for these types of veterans. Instead, definitions are found in Appendix C.
The TAG states that VEVRAA covers organizations “with at least one government contract of $150,000 or more.” This threshold also applies to subcontractors. As with the other laws discussed in the overview, the TAG does not mention anything about the threshold that trigger the affirmative action program (AAP) requirements for VEVRAA. However, the $150,000 contract or subcontract is one of two parts of the threshold to produce a VEVRAA AAP.
Following the overview of the laws OFCCP enforces, the TAG states that there are regulations that implement these laws. The regulations are found in title 41 of the Code of Federal Regulations (CFR). Chapter 60 in title 41 is devoted to OFCCP. 41 CFR 60-1 through 60-50 is focused on Executive Order 11246. 41 CFR 60-300 implements VEVRAA and 41 CFR 60-741 implements Section 503.
Next in This Series…
In the next part of this series, we will focus on two general rules discussed in the TAG: “Do Not Discriminate” and “Take Affirmative Action.”