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OFCCP Publishes Revised EEO Tagline Requirement, Loosens Posting Requirements

August 30, 2019 By Kali Roberts

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has released a new compliance assistance guide that makes subtle but important changes to the language federal contractor employers are required to use in advertisements for prospective employees informing them of the organization’s status as an equal opportunity employer. Informally known as the “EO tagline,” contractors will now officially be allowed to simply use “EOE” as a substitute for the phrase, “an equal opportunity employer.” The agency’s guidance also provides that the “EEO is the Law” poster and the required “pay transparency” notice may be posted either “electronically” or “physically,” deviating slightly from past guidance heavily favoring physical posters on company bulletin boards.

The OFCCP’s regulations implementing Executive Order (E.O.) 11246 explicitly provide contractors with essentially two options for a compliant EO tagline. Contractors can either expressly “state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin,” or substitute the abbreviated phrase, “an equal opportunity employer.” 41 C.F.R. § 60-1.41. Guidance released after the agency’s regulations implementing Section 503 and VEVRAA were revised in 2014 required contractors to, at a minimum, add the words “disability” and “vet” to their E.O. 11246 tagline to be compliant with those requirements.

The agency never officially sanctioned taglines such as “EEO/AA m/f/d/v.” Such hyper-abbreviated taglines did become popular during the George W. Bush administration, likely because the agency simply did not rigorously enforce that requirement. Under the Obama administration, however, the agency became much stricter regarding these types of “technical” requirements and began to stringently enforce based on the plain language in their regulations.

In the newly released compliance assistance guide titled, “Postings & Notice Requirements,” the OFCCP is for the first time officially and explicitly allowing contractors to substitute “EOE” for the phrase “an equal opportunity employer” in their taglines. Assuming a contractor is subject to the requirements of all three authorities—E.O. 11246, Section 503, and VEVRAA—the minimum compliant tagline is now, “EOE disability/vet.”

Biddle Consulting Group still strongly recommends that contractors spell out “veteran,” rather than use the allowed abbreviation, “vet,” as many veterans find the abbreviation off-putting or even offensive.

Contractors can still use the “long form” tagline listing out all of the protected characteristics, or the shortened phrase, “an equal opportunity employer.” The OFCCP’s new guidance also provides that if the E.O. 11246 tagline lists any specific characteristics protected under that authority they must list all such characteristics (race. Color, religion, sex, sexual orientation, gender identity, and national origin).

So, for example, if your tagline currently reads, “All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, or protected veteran status,” it is not compliant because it leaves out “sexual orientation” and “gender identity.”

The OFCCP’s new guidance also states that the “EEO is the Law” poster and the required “pay transparency nondiscrimination provision” can be posted “either physically on the premises or electronically,” so long as all applicants and employees have “a way to access” the materials. Note that the compliance assistance guide specifically excludes policy statements and other notices that are part of a written affirmative action program (AAP). The OFCCP’s regulations implementing Section 503 and VEVRAA specifically require that an affirmative action policy to be posted “on company bulletin boards.”

If you have questions about your EO tagline, or any other OFCCP compliance-related inquiries, contact a Biddle consultant today.

The OFCCP is Busting Myths Around Functional Affirmative Action Programs

August 29, 2019 By Kali Roberts

The OFCCP sent out a “myth-busting” email this morning that focuses on the myths and facts surrounding Functional Affirmative Action Programs (FAAPs). In the past the OFCCP has been skeptical of federal contractors preparing FAAPs, believing contractors wanted to “game the system” and hide discrimination. This is a step in the other direction, as the OFCCP is encouraging contractors to consider developing FAAPs.

The email touches on the following two myths and facts:

  • MYTH: FAAP agreements are burdensome to maintain because OFCCP requires updates whenever a contractor makes even a minimal change.
    • FACT: Contractors are no longer required to submit annual updates to their FAAP agreements. Contractors are only required to notify OFCCP when there are substantive changes that result in the addition or removal of functional units.  Notification to OFCCP is due 60 days after such changes are implemented.
  • MYTH: The FAAP application process is burdensome and time consuming.
    • FACT: OFCCP streamlined the process for reviewing and approving requests for FAAP agreements as part of the new directive. Once a contractor submits a complete FAAP application package to OFCCP, a determination is issued within 60 days. During the review process, a FAAP staff member works closely with the contractor, assisting them in developing an agreement that accurately reflects how the company does business. 

For more information on the new FAAP directive visit this link. Click this link to learn more about the FAAP FAQs.

OFCCP Submits Revised FAAP Directive for Final Approval

April 17, 2019 By Matt Nusbaum

Last September, OFCCP submitted a revised functional affirmative action program (FAAP) directive for public comment. This week, the agency submitted that revised FAAP directive to OMB for final approval with “no material changes” from what was proposed last year.

FAAPs permit federal contractors to develop and implement AAPs that better align with their business by structuring their programs by function or business unit rather than by physical establishments. But contractors must first obtain OFCCP approval to develop FAAPs. The current approval (and renewal) process is outlined in OFCCP Directive 2013-01.

OFCCP’s September proposal included several changes to the current FAAP directive that contractors would likely welcome, specifically:

  • Extending the term of FAAP agreements from 3 to 5 years;
  • Eliminating the mandatory audit requirement during the term of a FAAP agreement;
  • Extending the audit moratorium period from 2 to 3 years after a closed compliance evaluation;
  • Eliminating “consideration” of contractors’ EEO compliance history as part of the FAAP approval process;
  • Eliminating the reapplication period after the expiration of a FAAP agreement; and
  • Eliminating the annual update requirement.

In response to public comments, OFCCP is also instituting a 60-day window to approve or deny FAAP applications upon receipt of a “complete package,” a process that contractors regularly report currently takes 12-18 months. This “non-material” change to OFCCP’s original proposal should significantly lower the barrier to entry for contractors considering the FAAP option.

These changes will not become effective until OFCCP receives final approval from OMB. The public has one more “bite at the apple” and can submit comments for OMB to consider. OMB can then approve OFCCP’s proposal as submitted or send the proposal back to OFCCP for modification. Comments are due by May 16, 2019 and can be submitted at regulations.gov.

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