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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: November 13, 2000

FROM: Barry McVay, CPCM

SUBJECT: Office of Federal Contract Compliance Programs; Government Contractor Affirmative Action Requirements

SOURCE: Federal Register, November 13, 2000, Vol. 65, No. 219, page 68021

AGENCIES: Department of Labor (DOL), Employment Standards Administration (ESA), Office of Federal Contract Compliance Programs (OFCCP)

ACTION: Final Rule

SYNOPSIS: This final rule refocuses, revises, and restructures OFCCP's regulations that require government contractors and subcontractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin." The final rule changes the emphasis of the regulations from the development of a written "affirmative action program" (AAP) that complies with highly prescriptive standards, to a performance-based standard that incorporates an AAP into the contractor's overall management plan. Also, the final rule introduces a new tool to aid contractors in assessing their pay and other personnel practices -- the Equal Opportunity Survey, which will normally be submitted "via the Internet".

EDITOR'S NOTE: For more on the proposed rule, see the May 4, 2000, FEDERAL CONTRACTS DISPATCH "Office of Federal Contract Compliance Programs; Government Contractor Affirmative Action Requirements."

OFCCP's regulations are in Title 41 of the Code of Federal Regulations (CFR), Public Contracts and Property Administration; Chapter 60, Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. Most of this proposed rule addresses Part 60-2, Affirmative Action Programs.

Compliance with OFCCP's affirmative action regulations by federal contractors is addressed in Federal Acquisition Regulation (FAR) Subpart 22.8, Equal Employment Opportunity.

EFFECTIVE DATE: December 13, 2000.

FOR FURTHER INFORMATION CONTACT: James I. Melvin, Director, Division of Policy, Planning and Program Development, OFCCP, Room C-3325, 200 Constitution Avenue, NW, Washington, DC 20210, 202-693-0102, TTY: 202-693-1308.

SUPPLEMENTAL INFORMATION: Executive Order 11246, which was issued September 24, 1965, requires federal contractors and subcontractors to take "affirmative action," which means that contractors must do more than "not discriminate" -- they must identify and eliminate impediments to equal employment opportunity. OFCCP's regulations in 41 CFR Part 60-2, Affirmative Action Programs, which implement Executive Order 11246, require government nonconstruction contractors and subcontractors with 50 or more employees and a contract of $50,000 or more to prepare and implement a written AAP for each of their establishments.

OFCCP's regulations in Part 60-2, Affirmative Action Programs, were first published in 1970 and have remained essentially the same since then. Several years ago, a regulatory team was appointed to review Part 60-2 and propose the elimination of outdated requirements, burdensome paperwork requirements, and inconsistent requirements, and to propose ways to improve the quality of AAPs, the rate of voluntary compliance, the ability of OFCCP personnel to monitor compliance, and relations between contractors and OFCCP compliance officers. To that list has recently been added the goal of insuring employees are compensated equally for performing equal work, regardless of race, color, religion, sex, or national origin.

The recommendations of the regulatory team was the basis for a proposed rule that was published May 4, 2000. A total of 187 comments were received from: five contractor advocacy organizations; 137 labor, civil rights, and women's advocacy organizations and their individual members; four law firms; 14 contractors; 17 consulting firms; 9 civil rights and affirmative action officials of state and local governments and institutions of higher learning; and one member of Congress. This final rule adopts most of the changes proposed May 4, 2000, but some of the proposed provisions have been modified in response to the comments.

The following are the significant changes being made by this final rule to 41 CFR Part 60-1, Obligations of Contractors and Subcontractors, and 41 CFR Part 60-2, with changes between the proposed rule and final rule included in brackets ("[ ]"):

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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