Affirmative Action Program
What are the Affirmative Action Laws?
Executive Order 11246, as amended, prohibits discrimination and requires affirmative action in all employment practices for females and minoritiesSection 503 of the Rehabilitation Act of 1973, commonly referred to as Section 503, prohibits discrimination and requires affirmative action in all employment practices for individuals with a disability
The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), prohibits discrimination and requires affirmative action in all employment practices for protected veterans.
What government agency enforces Affirmative Action laws?
The U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP)What is the difference between Equal Employment Opportunity (EEO) and Affirmative Action (AA)?
In short, Equal Employment Opportunity (EEO) requires providing equal access to employment opportunities and equal treatment in employment processes. Affirmative Action requires taking additional actions to achieve EEO.All federal contractors and subcontractors have EEO obligations with two rules: Do Not Discriminate and Take Affirmative Action.
Do Not Discriminate: Executive Order 11246 prohibits employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin. Section 503 and VEVRAA prohibit employment discrimination against individuals with disabilities and protected veterans.
Take Affirmative Action: Additional steps and efforts to achieve equal employment opportunities in employment processes under the three laws (EO11246, Section 503, and VEVRAA). Federal contractors must monitor and evaluate the employment processes to ensure non-discrimination, and ensure employment and job advancement of qualified minorities, females, individuals with a disability, and protected veterans. Under EO11246, Pay Transparency provision, federal contractors must not discriminate against applicants or employees because they inquire about, discuss, or disclose their compensation. Under Section 503, reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee with a disability.
When federal contractors have 50 or more employees and met a specific contract value, they must prepare a written Affirmative Action Program (AAP).
When do I need to have a written Affirmative Action Program or Plan (AAP)?
The following applies to most federal contractors:Federal contractors or subcontractors must prepare written AAP under EO11246 and Section 503 when:
(1) Have 50 or more employees, and
(2) Have a federal contract of at least $50,000
Federal contractors or subcontractors must prepare written AAP under VEVRAA when:
(1) Have 50 or more employees, and
(2) Have a federal contract of at least $150,000
You are required to have a written AAP if your organization has at least 50 employees and serves as a depository of government funds in any amount, or have government bills of lading which in any 12 months total or can reasonably be expected to total at least $50,000, or is a financial institution that is an issuing and paying agent for U.S. Savings bonds and savings notes in any amount.
Our organization is a new federal contractor and is required to have a written AAP, how soon do we need to develop a written AAP?
Federal contractors are required to develop their first written AAP within 120 days from the commencement of the contract and must update the AAP annually.Our organization has multiple U.S. locations, should we develop one written AAP covering all U.S. locations?
Federal contractors may develop establishment-based AAP or functional AAP, or a combination of both. However, federal contractors that wish to develop functional AAP or a combination of both establishment and functional AAP must seek approval from the OFCCP in advance. Therefore, most federal contractors would develop establishment-based AAP.Federal contractors are required to develop a separate written AAP for each U.S. establishment with 50 or more employees. Employees at U.S. establishments with fewer than 50 employees must be included in other AAP establishments following OFCCP’s guidelines or may choose to have a separate AAP even it was under the 50-employee threshold. The bottom line is that all U.S. employees must be covered under an AAP.
What is an establishment?
According to OFCCP’s Federal Contract Compliance Manual (FCCM), an establishment is defined as “A facility or unit that produces goods or services, such as a factory, office, store or mine. In most instances, the unit is a physically separate facility at a single location. In appropriate circumstances, OFCCP may consider as an establishment several facilities located at the same site or two or more sites when the facilities are in the same labor market or recruiting area. The determination as to whether it is appropriate to group facilities as a single establishment will be made by OFCCP on a case-by-case basis.”How to include remote or telework employees in our establishment-based AAP?
Federal contractors with only one establishment would include all U.S. employees, including any remote or telework employees in that AAP. For contractors with multiple establishments, OFCCP provides the below guidelines on the AAP(s) in which remote or telework employees may be included.Federal contractors are required to develop separate written AAP for each U.S. establishment with 50 or more employees. Employees at U.S. establishments with fewer than 50 employees must be included in other AAP establishments following OFCCP’s guidelines or may choose to have a separate AAP even it was under the 50-employee threshold. The bottom line is that all U.S. employees must be covered under an AAP.
- Include a remote or telework employee in the AAP that covers the management to whom they report.
- Include a remote or telework employee in the AAP of the establishment where his or her selection decision was made.
- Include a remote or telework employee in the AAP that covers the location of the personnel function that supports the employee.
Could we create a separate AAP for just the remote employees or separate AAPs for the remote employees grouped by states or regions?
OFCCP states “Likely no”, and further, “Grouping remote employees in a separate AAP, simply because they work remotely, and/or grouping them into separate AAPs by state or region does not clearly fall within the alternative AAP structures permitted by the regulations, in which contractors consider the management or functional structure to which the employee is subject. If an employee could be placed in more than one AAP under these regulations, the contractor may choose where to place them.”Is written AAP one-time only?
No, written AAP must be updated annually based on your organization’s plan date as long as your organization meet the requirements. In general, a written AAP covers 12 months from the AAP's effective date and must be updated after it reached the 12th month. For example, if your AAP covers from 1/1/2022-12/31/2022, you must update the AAP as soon as possible after 1/1/2023, which covers from 1/1/2023-12/31/2023.Are we required to use January 1st as the plan date?
No, federal contractors may choose any date in the year as the plan date or AAP effective date, with considerations of the federal contract commencement date, the organization’s fiscal year, internal resources and workloads, and employment records completeness.Who should be covered in written AAP?
All employees must be included in AAP, according to OFCCP’s regulations. OFCCP generally uses the “common-law agency test” to define ‘employee’. The test examines the employer-employee relationship by assessing the following factors:- The contractor's right to control when, where, and how the individual performs the job
- The skill required for the job the source of the instrumentalities and tools
- The location of work
- The duration of the relationship between the parties
- Whether the contractor has the right to assign additional projects to the individual
- The extent of the individual's discretion over when and how long to work
- The method of payment; the contractor’s role in hiring and paying assistants
- Whether the individual's work is part of the regular business of the contractor
- Whether the individual is in business
- The provision of employee benefits to the individual
What is a written Affirmative Action Program or Plan (AAP)?
- Management Plan for ensuring equal employment opportunity.
- Establish and document policies, practices, and procedures to ensure EEO in recruitment, selection, and advancement.
- Document organizational structure, the demographic composition of the workforce, and other data such as personnel activity and compensation.
- Identify areas where women, minorities, individuals with disabilities, and protected veterans are underutilized in the workforce.
- Identify problem areas in personnel selection processes.
- Update annually.
How do we get started on a written AAP?
- Decide who will prepare the written AAP, whether outsource it to external consultants, or prepare it internally, considering internal resources and expertise, timeline, and budget. Remember, you can always outsource it the first year and bring it back internally in the subsequent years.
- Select a plan effective date
- Understand the employment data requirements. In order to prepare the required analyses in a written AAP, it requires employment data including current U.S. employees’ demographics, and personnel transactions data for hires, promotions, terminations, and applicants for a 12-month period based on the plan effective date. (Accurate AAP provides our clients with Excel data templates for data gathering)
We have completed a written AAP, now what?
In addition to preparing a written AAP and updating it annually, federal contractors must fulfill other obligations such as internal posting, job posting with the State job bank, etc. Accurate AAP provides our clients with a full checklist of the other obligations covered under affirmative action laws.Many federal contractors also met the requirements of EEO-1 and VETS-4212 reporting. Please refer to the “EEO-1 Report” and “VETS-4212 Report” FAQ sections for more information.
For federal contractors with establishments in California or Illinois, there are compensation data reporting requirements. Please visit California Pay Data Reporting and Illinois Equal Pay Act Registration Certificate (EPARC) for more information.
What is self-identification?
Federal contractors are required to invite applicants and employees voluntarily to self-identify their race/ethnicity, gender, veteran, and disability status using a self-ID form electronically or on paper. Individuals may refuse to disclose the information, but the contractors’ obligation is to provide an invitation and document the results.Federal contractors may customize the self-ID form(s) for obtaining race/ethnicity, gender, and veteran status information. However, contractors must use OFCCP’s current self-ID Form CC-305 for obtaining disability status information. Federal contractors must invite their employees to self-identify their disability status, every five years thereafter, and with at least one reminder to employees to update their disability status between invitations.
OFCCP’s recommendations for individuals who refused to disclose the demographic information are, “Contractors are strongly encouraged to rely on employee self-identification to obtain this information. Visual observation is an acceptable method for identifying demographic data, although it may not be reliable in every instance.”
What are AAP Job Groups?
Job titles with similar job contents, wage rates, and opportunities in an EEO-1 category are grouped together to form a unique job group, with consideration of the job group size. Larger organizations and a large workforce population typically will have more job groups. For example, the Executives/Senior Officials and Managers EEO-1 category may have three job groups: Executives, Vice President, and Managing Directors; the Professionals EEO-1 category may have two job groups: Technical Professionals and Administrative Professionals. Smaller organizations may use the EEO-1 categories as AAP job groups.EEO-1 Reporting
What is an EEO-1 Report Component 1?
EEO-1 Report Component 1, Standard Form 100, is a mandatory data collection report for private employers that meet the filing requirements. The report is under the authority of Title VII or the Civil Rights Act of 1964, as amended, and is collected annually under the Equal Employment Opportunity Commission (EEOC).What is the difference between Component 1 and Component 2?
EEO-1 Component 1, Standard Form 100, collects employees’ demographic data categorized by race/ethnicity, sex, and job category for each U.S. establishment of the employer. U.S. remote employees must be included in the report. Component 1 is currently an active requirement.EEO-1 Component 2 requires compensation data in addition to the data required for Component 1. Component 2 currently is not active. The EEOC collected the Component 2 data in 2019 for the reporting years of 2017 and 2018
When is EEO-1 Component 1 due?
Component 1 reporting is normally due by March 31st annually with the data from a payroll period in the fourth quarter of the preceding year. Note that the EEOC had ‘delayed’ the due date each year for the past four reporting years (2018-2021) for reasons including government shutdown and COVID-19 pandemic.Who is required to file EEO-1 Component 1?
The following applies to most federal contractors:(1) Private employers with 100 or more employees; or
(2) Private employees with fewer than 100 employees and are owned or affiliated with another company under through common ownership and/or centralized management employ a total of 100 or more employees in the entire enterprise, the common ownership headquarters must file the report for all its subsidiaries and establishments/locations.
(3) Federal contractors or subcontractors with a federal contract worth at least $50,000 and have 50 or more employees; or
(4) Federal contractors that serve as depositories of Government funds in any amount; or
(5) Financial institutions which are issuing and paying agents for U.S. Saving Bonds and savings notes.
Our company is a federal contractor with a contract worth at least $50,000 but employ fewer than 50 employees, do we need to file?
No, a company must meet BOTH requirements: 50 or more employees AND a federal contract or subcontract with at least $50,000.
How to file EEO-1 Component 1?
The EEOC requires that EEO-1 Component 1 Reports be submitted electronically via the EEO-1 Component 1 Online Filing System (OFS), accessible at www.eeocdata.org/eeo1. Employers may create an data file following the EEO-1 Data File Upload specifications and upload the file through the OFS.What are the different report types of EEO-1 Component 1?
In general, there are five types of reports: Type 1, Type 2, Type 3, Type 4, and Type 8.Type 1 is a “Single-Establishment Report” for employers with only one U.S. establishment.
The other types are for “Multi-Establishment” employers:Type 2 is a Consolidated Report which includes the total number employees from all establishments, including the headquarters.
Type 3 is a Headquarters Report which includes the total number of employees in the headquarters.
Type 4 is an Establishment Report for each U.S. establishment with 50 or more employees.
Type 8 is an Establishment Report for each U.S. establishment with fewer than 50 employees.
There is a Type 9 report for ‘new’ establishment with 50 or more employees filing for the first time for an existing employer. The Type 9 is only used when an employer is uploading the data rather than manually entering the data via the online filing system.What is the difference between a single-establishment and a multi-establishment employer for EEO-1 Component 1?
A single-establishment company does business at only one physical address. A multi-establishment company does business at two or more physical addresses.Single-establishment companies are only required to submit one EEO-1 Component 1 data record/report. Multi-establishment companies are required to submit a) a separate report for the headquarters, b) a separate report for each establishment of the company with 50 or more employees, c) a separate report for each establishment with fewer than 50 employees, and d) a consolidated report that includes all employees.
How does EEOC identify an "Establishment"?
“Establishment” is generally a single physical location where business is conducted or where services or industrial operations are performed (e.g., factory, mill, store, hotel, movie theater, mine, farm, airline terminal, sales office, warehouse, or central administrative office (definition adapted from the North American Industry Classification System, 2012). Units at different physical locations, even though engaged in the same kind of business operation, must be reported as separate establishments. For locations involving construction, transportation, communications, electric, gas, and sanitary services, oil and gas fields, and similar types of physically dispersed industrial activities, however, it is not necessary to list separately each individual site, project, field, line, etc., unless it is treated by you as a separate legal entity. For these types of activities, list as establishments only those relatively permanent main or branch offices, terminals, stations etc., which are either: (a) directly responsible for supervising such dispersed activities (where employees work from home, they should be reported as if working at the establishment where their supervisor is reported to work); or (b) the base from which personnel and equipment operate to carry out these activities. (Where these dispersed activities cross State lines, at least one such establishment should be listed for each State involved.)What is a workforce snapshot period for EEO-1 Component 1?
The workforce snapshot period is a single payroll period from the fourth quarter (October, November, or December) of the reporting year. For example, for the reporting year 2022, employers may choose any payroll period in October, November, or December of 2022.Should we include all employees in the snapshot payroll period, even for part-time employees for EEO-1 Component 1?
Yes, both full-time and part-time employees in the selected payroll period must be included in the EEO-1 Component 1 report. Thus, terminated employees who were employed during the selected payroll period and receiving the final paycheck should also be included in the data.How to include remote employees who are not assigned to or report to an establishment?
Remote employees should be included in the assigned establishment or in the establishment in which they report. If employees do not have an assigned establishment or do not report to an establishment, they should be included in the Type 3 Headquarters Report for multi-establishment employers. For single-establishment employers, all employees, including all remote employees, should be included in the Type 1 Single-Establishment Report.VETS-4212 Reporting
Who must file VETS-4212 Report?
All federal contractors and subcontractors with a contract or subcontract at least $150,000 during a given calendar year must file a VETS-4212 report during the following calendar year.Our company employs fewer than 50 employees but have a federal contract worth more than $150,000, do we need to file VETS-4212 Report?
Yes, The VETS-4212 requirement is based on the contract value of at least $150,000.
What is the due date for VETS-4212 Report?
September 30th annuallyHow to file the VETS-412 Report?
The preferred method for filing VETS-4212 Reports is electronically through the VETS web-based filing system. Instructions for electronically filing the VETS-4212 Report are found on the VETS website at http://www.dol.gov/agencies/vets/programs/vets4212.Employers may file the report in paper format by downloading a VETS-4212 blank form from the VETS website at http://www.dol.gov/agencies/vets/programs/vets4212 and mailing the completed form to Veterans’ Employment and Training Service Center, Department of Labor National Contact Center (DOL-NCC), 3110 Fairview Park Drive, Suite 800 Falls Church, VA 22042.
The agency also accepts electronic forms on compact discs or other electronic storage media by mail to the above address, or by email to VETS4212-customersupport@dol.gov.
What are the different report types for VETS-4212?
1. Single Establishment
2. Multiple Establishment Headquarters
3. Multiple Establishment Hiring Location – locations with 50 or more employees
4. Multiple Establishment State Consolidated (MSC) – locations with fewer than 50 employees may be grouped by State and filed under MSC reports.
What is the difference between a single-establishment and a multiple-establishment employer for VETS-4212?
A single-establishment company does business at only one physical address. A multiple-establishment company does business at two or more physical addresses.
Single-establishment companies are only required to submit a “Single Establishment” VETS-4212 report.
Multiple-establishment companies must submit a “Multiple Establishment Headquarters” report, “Multiple Establishment Hiring Location” report for each hiring location with 50 or more employees, and if applicable, “Multiple Establishment State Consolidated” reports for locations with fewer than 50 employees.
What is the data period for VETS-4212?
Employers must select a date in the current year between July 1 and August 31 that represents the end of a payroll period. The selected date (Twelve Month Period Ending) will be the basis for reporting the “Number of Employees”. For example, for a payroll period 7/16/2022-7/31/2022, the selected date (Twelve Month Period Ending) would be 7/31/2022 for reporting the Number of Employees.
For “New Hires”, employers would include the new hires in the 12 months before the selected date (Twelve Month Period Ending). Following the above example, the 12 months would be 8/1/2021-7/31/2022.
What are the Protected Veteran categories on the VETS-4212 Report?
Protected Veteran means a veteran who is protected under the nondiscrimination and affirmative action provisions of the Vietnam Veterans’ Readjustment Assistance Act, 38 U.S.C. 4212; specifically a veteran who may be classified as an active duty wartime or campaign badge veteran, disabled veteran, Armed Forces service medal veteran, or recently separated veteran.
1. Active duty wartime or campaign badge Veteran – a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense.
2. Armed Forces Service Medal Veteran – any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 FR 1209, 3 CFR, 1996 Comp., p. 159).
3. Disabled Veteran – (1) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or (2) A person who was discharged or released from active duty because of a service-connected disability.
4. Recently Separated Veteran – a veteran during the three-year period beginning on the date of such veteran’s discharge or release from active duty in the U.S. military, ground, naval or air service.
What is the recordkeeping requirement for VETS-4212 Report?
Employers must keep a copy of the completed VETS-4212 that was submitted to the DOL for a period of three years.
California Pay Data Reporting
Reporting Year 2023
Pay Data Reports are due 5/8/2024Who must file?
California law requires private employers of 100 or more employees and/or 100 or more workers hired through labor contractors to annually report pay, demographic, and other workforce data to the Civil Rights Department (CRD). This reporting is required under Government Code section 12999, as amended by Senate Bill 1162How often do I need to file?
Every year.Illinois Equal Pay Registration Certificate (EPRC)
Due Date 2024
March 24, 2024Who must file?
Illinois law requires private businesses with 100 or more employees in the State of Illinois* to submit an application to obtain an Equal Pay Registration Certificate (EPRC) by providing certain pay, demographic, and other data to the Illinois Department of Labor (IDOL).The law also requires such employers to submit certain information with their application, including: a statement certifying that the business is in compliance with the Equal Pay Act of 2003 and other State and federal laws related to equal pay.
How often do I need to file?
You must recertify every two years after the first submission.Still have questions?
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