Cara Crotty, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP explains the details of the OFCCP’s proposal to make the FAAP approval process less burdensome.
As I reported last week, the Office of Federal Contract Compliance Programs (OFCCP) has submitted proposed changes to the Office of Management and Budget regarding its functional affirmative action plan (FAAP) approval process. Functional AAPs, or FAAPs, allow contractors to prepare their Executive Order 11246 affirmative action plans along lines of business or other organizational units instead of based on physical establishments. However, contractors cannot prepare FAAPs without obtaining approval from the OFCCP.
Although analyzing a workforce on a functional basis is often the most practical and logical approach, the approval process is long, complicated, and burdensome, and very few contractors have elected to prepare FAAPs for that reason.
According to the OFCCP, only 71 contractors currently have approval to prepare FAAPs, and the agency estimates that it will receive requests from only five additional contractors each year (even with its revised process in place).
The most meaningful proposed change is the elimination of the requirement that at least one OFCCP compliance evaluation occur during the term of the FAAP agreement. Other proposed changes to the approval process include the following:
With these changes, the OFCCP estimates a significant decrease in overall reporting burden — from the current 1,297 hours to 862 hours.
What will not change, however, is the extensive amount of information that contractors are required to provide to the OFCCP during the approval process:
The OFCCP also notes, “OFCCP and the contractor will discuss information related to reporting hierarchy, personnel procedures, how the contractor anticipates complying with the AAP requirements of § 503 [of the Rehabilitation Act of 1973] and [the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA)], and how each functional or business unit manages its human resources and equal employment opportunity responsibilities during the FAAP negotiation process.” Significantly, § 503 and VEVRAA do not provide for the development of FAAPs, so contractors would continue to develop those AAPs on an establishment basis.
The information to be provided during the FAAP approval process represents a substantial amount of data to which the OFCCP would not generally have access.
Comments to the OFCCP’s proposal must be submitted by November 13, 2018.