OFCCP Restores Functional Affirmative Action Programs

On June 28 the OFCCP announced that it was restoring the functional AAP (FAAP) program, which it had suspended a few years ago. A copy of the OFCCP's Directive regarding FAAP's may be found here; the key points are as follows:

1. A FAAP may cover all or part of an organization. If a FAAP covers only part of the organization (sales & marketing, for example), employees in other functions must be included in establishment-based AAPs. For example, a geographically dispersed company could use one or more FAAP to cover certain support functions (finance, HR, sales, for example), and establishment-based AAPs to cover manufacturing, service delivery, or other local functions.
2. Criteria for a FAAP. To be considered for a FAAP, the company or business unit must:
   1.  Currently exist and function autonomously
   2. Include at least 50 employees
   3. Have its own managing official
   4. Have the ability to track and maintain its own personnel activity.

This does not mean that the business unit covered by the FAAP must meet these criteria on its own, without assistance. For example, it is unlikely that a sales department would track its own personnel activity. However, if the personnel activity data associated with the sales department can be separated out of the rest of the personnel activity data within the HR information system, there will be no problem as far as meeting this criteria is concerned.

1. Companies must submit a written request to the OFCCP for permission to establish a FAAP. The process may take a few months, during which the OFCCP will evaluate materials submitted, perform background research, and, perhaps, request a meeting with company officials to discuss the application and the company profile.
2. An Interested company’s request must explain why it believes that use of functional AAPs would be most appropriate. This explanation should:
   1. describe in detail how the proposed functional AAPs correlate to the company
   2. include a transition plan describing the process and timing by which the organization will move from establishment-based AAPs to FAAPs.
   3. include the name and contact information of the corporate representative who will be responsible for overseeing the request for a functional AAP agreement.

The request for a functional AAP agreement must be received by the OFCCP Director no later than 120 calendar days prior to the expiration of the current corporate headquarters AAP. If this timeframe is not met, the request will be denied, although the contractor may resubmit its request prior to the next AAP year.

1. When determining whether to grant a request for a FAAP, the OFCCP will consider the company’s EEO violations for the three years prior to the date of application, including EEO violations issued from other federal and state agencies.

This development, along with other developments that I will be blogging about over the next few weeks, leads me to believe that stepped-up OFCCP enforcement is on the horizon.

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