Lugar de Noticias Haynes and Boone
The regulations implementing Executive Order 11246 have finally received their long-awaited facelift. The final rule, which was published on November 13, 2000, and took effect on December 13, 2000, achieves the seemingly laudable goal of streamlining the process of creating affirmative action plans, but this benefit may be more than offset by the addition of the highly-controversial Equal Opportunity Survey (EOS).
THE DEPARTMENT OF LABOR GIVETH . . .
The stated goal of the Clinton administration Department of Labor (DOL) was to focus on the substance of affirmative action plans (AAPs) while reducing the paperwork by curtailing onerous technical standards. They have succeeded in this by:
- Replacing the Work Force Analysis with a one-page organization chart;
- Replacing the 8-factor analysis with a 2-factor analysis (external and internal availability);
- Reducing the required narrative components from ten to the following four: (1) designation of responsibility for implementation; (2) identification of problem areas; (3) action-oriented programs; and (4) periodic internal audits;
- Allowing small employers (50 to 150 total employees) to use the Standard Form 100 (a.k.a. EEO-1 form) categories rather than creating tailored job groups;
- Allowing covered employers who secure the agreement of OFCCP to develop plans that use functional or line of business groups without regard to geographic location of the group members rather than creating a plan for each “establishment;” and
- Permitting AAPs to be retained in electronic (vs. paper) format so long as employees have access to the electronic version.
. . . AND TAKETH AWAY
While anyone who has developed AAPs will recognize the time savings in these changes, the advantages may be eclipsed by other concerns including the overly-broad definition of an “applicant” and the addition of the EOS.
During the comment period on the proposed changes to the regulations, many employers expressed concern that the OFCCP's definition of an “applicant” must change in order to account for technological advances in communication, such as email and the Internet. Specifically, treating anyone who “. . . indicated an interest in being considered for hiring, promotion, or other employment opportunities” as an applicant creates dual problems of (1) tracking demographic information (gender, race) on applicants who fail or refuse to self-identify; and (2) unduly expanding the applicant pool with those who lack even the minimum qualifications for the job being sought. The OFCCP acknowledged these problems, but refused to revise the definition of an “applicant.” As to the problem of tracking applicant flow, it suggested employers send remote applicants a postcard that requests demographic information and use visual observation of in-person applicants.
The other major blow to employers was the addition of the EOS, which is designed to facilitate the DOL's equal-pay initiative by identifying contractor establishments for potential review. Employers are justifiably concerned that this mandatory survey asks for detailed information on employees' pay, longevity, and personnel movements. A pilot EOS was sent to seven thousand contractors in April 2000 and some received on-site “focused reviews” in July after receiving no more than 3-5 days' notice of the OFCCP's impending visit. Further, the OMB-approved scheduling letter allowed the compliance officer to also evaluate the contractor's compliance with the VETS-100 and Form I-9 reporting requirements.
The final regulations state that the survey will be required every other year, with one-half of all nonconstruction contractors receiving the survey next year and the other one-half in 2002. The format used during the pilot program was not specifically adopted in the regulations, but the substance of the form will not change. In a nod to employers' complaints about the time needed to complete the survey, the OFCCP revised its estimate upward, from 12 hours to 21 hours. Also, employers may submit the report via the Internet.
1 Q&A’s on Uniform Guidelines on Employee Selection Procedures (March 2, 1979).