Posts Tagged ‘OFCCP’

WARNING: OFCCP Sends “Audit” Letters February 17th

Tuesday, February 28th, 2017

Federal contractors and subcontractors be warned the Office of Federal Contracts Compliance Programs (OFCCP) has mailed a new round of Corporate Scheduling Announcement Letters (CSAL).  These letters are considered courtesy letters and are sent to federal contractors/subcontractors as an early notice that the company may be selected for an OFCCP audit.  The last time the OFCCP sent these notices was November 2014 and many of the audits since then have been based on that list.

These letters are sent to the company location that may receive the official audit letter later and are typically sent to the HR Director. Previously, these letters were sent to the company headquarters.  So advise your HR staff & directors at your locations to be on the look out for these letters.

If you do receive a CSAL letter, CAI encourages you to ensure your AAP is up-to-date.  You should also carefully review your data and be prepared for the official audit letter. Once you receive the actual audit letter, you only have 30 days to prepare the requested material.  So use the advanced notice to take the time to review all of your AAP obligations and records.

If you have a company location that receives the CSAL letter, it does not guarantee that you will receive an actual OFCCP audit.  You may also receive an actual audit without receiving the CSAL. If you need help putting together an affirmative action plan, contact Kaleigh Ferraro at CAI at

AAP: Changes to Veteran Self-Identification Solicitation

Thursday, February 26th, 2015

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares important information regarding AAP requirements and solicitation of self-identification information from veterans.  Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

On September 25, 2014, the Veterans Employment and Training Service issued a final rule changing the reporting requirements for employers covered under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).  This final rule rescinds the VETS-100 report and changes the annual veterans report from VETS-100A to VETS-4212.  This reporting change will allow employers to report on aggregated protected veterans rather than the individual veteran classification.  There will also be the option to report on veteran hires and total hires either by the EEO-1 categories or in total.

Since this changes, federal contractors and subcontractors subject to AAP requirements have been asking how this affects their solicitation of veteran classifications during the hiring process.  Regulation changes to VEVRAA effective in 2014 required contractors to solicit veteran status both pre job offer and post job offer.  The solicitation was different pre-offer versus post-offer.  The pre-offer form requested only for applicants to voluntarily self-id as “protected veteran” while the post-offer form requested individuals to identify as specific veteran classifications.  Since the VETS reporting in 2015 will report on aggregated veteran data, the post-offer requesting specific classifications seemed unnecessary.

The Office of Federal Contract Compliance Programs (OFCCP) responded on January 20, 2015 with guidance regarding the self-identification forms and solicitation.


  1. Federal contractors and subcontractors may use the same self-identification form for per-offer and post-offer solicitation during the hiring process. This form will invite applicants to voluntarily self-identify as “protected veteran”. There is no need to request specific veteran classification
  2. Contractors may continue to request specific veteran classification post-job offer if they choose to do so.


For more information on affirmative action and the recent changes within it, be sure to sign up now for our FREE one hour webinar AAP: What You Need to Know About Recruiting and Applicant Tracking on March 24, 2015.

Our affirmative action team at CAI is dedicated to helping you with all of your affirmative action needs. Whether it’s designing an AAP plan for your company, doing a full audit on an existing plan, or simply answering a few questions, please contact me directly at 919-713-5241 or

Q&A: 6 Things You Should Know About Affirmative Action Plans

Thursday, August 28th, 2014

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares information on affirmative action plans from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

If your organization provides goods or services to the federal government either directly or indirectly, you may be subject to affirmative action regulations.  Just in 2014, regulation changes regarding affirmative action programs for protected veterans and individuals with disabilities became effective.  President Obama has also signed several Executive Orders affecting federal contractors.  Is your organization in compliance with these recent and proposed changes?

Q: Are you covered as an affirmative action employer?

A: If you have federal contractors or subcontracts of at least $10,000, you are covered under the affirmative action regulations.


Q: What are the affirmative action requirements?

A: One of the main requirements is to annually develop written affirmative action plans if you have federal contracts/subcontracts of $50,000 or more and 50 or more employees. There are a number of other requirements as well.


Q: What is the impact of the changes to organizations regarding protected veterans and individuals with disabilities?

A: Some of the major changes that became effective in 2014 require setting hiring benchmarks for veterans and utilization goals for individuals with disabilities.  They also require federal contractors to solicit self-identification of applicants for veteran and disability statuses prior to job offer.


Q: What type of data is needed to develop an affirmative action plan?

A: In order to develop an annual affirmative action plan, you will need a current listing of employees.  This employee listing will be used to determine if Placement Goals must be established for women and minorities.  This listing will also be used to determine if utilization goals for individuals with disabilities are met.  Contractors must also review employment decisions for hires, promotions and terminations for the 12 months prior to the employee listing.


Q: What is required of affirmative action employers other than the written affirmative action plan?

A: There are a number of additional requirements beyond an affirmative action plan.  These requirements include the following: record keeping requirements, tracking applicant data, annually filing EEO-1/VETS-100A reports, notifying subcontractors & vendors of obligations, specific language in covered purchase orders & subcontracts, listing jobs with state employment service delivery systems, outreach and recruitment efforts, etc.  CAI can provide additional information regarding these and other requirements.


Q: What are the recently signed Executive Orders and proposed regulation changes?

A: President Obama has signed several Executive Orders in 2014 that may lead to changes for federal contractors and subcontractors.  They include, establishing higher minimum wages for federal contractors, expanding affirmative action requirements to include gender identity and sexual orientation as protected groups, protect workers from retaliation when discussing pay with other employees.  The OFCCP also issued proposed regulations that would require contractors to submit compensation information annually in an expanded Employer Information Report EEO-1

CAI has a team dedicated to affirmative action and can assist with affirmative action questions.  Please contact Kaleigh Ferraro, Manager of Affirmative Action Services directly at 919-713-5241 or  for additional information or other affirmative action questions.


New Self-Identification Form for Disability Status Released by OFCCP

Tuesday, March 4th, 2014

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

On March 24, 2014, new regulations take effect regarding affirmative action requirements for federal contractors. One of the major changes is the requirement that federal contractors and subcontractors solicit disability status for employees and applicants. The Office of Federal Contract Compliance Programs (OFCCP) requires companies to use a specific and unaltered form, which was just approved and released. You can access the form at

This voluntary self-identification form must be used by federal contractors to solicit disability status of applicants both pre-offer and post-offer. Solicitation of applicants using this form may be delayed until the contractors first AAP update after March 2014. This same form will be used to survey current employees at least every five years. Contractors must survey their current employees within the first year of the regulation changes (March 24, 2014 to March 24, 2015). For companies utilizing online applicant systems, the exact language of this form may be used online. If used electronically, it must include the OMB Control number, expiration date and use a sans serif font of at least 11 point.

If you have any questions about the affirmative action regulation changes or use of this form, please contact Kaleigh Ferraro at 919‑713‑5241 or

Affirmative Action: Changes to Self-Identification of Applicants

Tuesday, December 10th, 2013

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

New regulations regarding affirmative action efforts for protected veterans and individuals with disabilities become effective March 24, 2014. The regulation changes for Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act will require federal contractors and subcontractors to make significant changes to recruiting and outreach efforts for veterans and individuals with disabilities.

One of the new and most controversial mandates will require federal contractors to solicit voluntary self-identification of veteran and disability status for applicants. This is a major shift for employers as the Americans with Disabilities Act (ADA) previously prohibited such inquiries until after a job offer. The new rules require a voluntary self-identification opportunity be provided both before a job offer and after a job offer.

If you are a federal contractor or subcontractor, what does this mean for you and when will you have to make changes to your recruiting process? Until March 24, 2014, you can continue the same process that you have been following. You should continue to provide the opportunity for applicants to self-identify as protected veterans and individuals with disabilities after you have made a job offer.

When you implement the new self-identification requirements will depend on your Affirmative Action Plan year. If your Affirmative Action Plan is in effect prior to March 24, 2014, you can delay the pre-job offer solicitation of veteran and disabled status until the start of your next plan year. Contractors with AAPs starting after March 2014, must begin pre-job offer solicitation at the beginning of their 2014 AAP.

The Office of Federal Contract Compliance Programs (OFCCP) has provided sample self-identification forms that contractors may use. There are two forms available for solicitation of veteran status. The pre-job offer form requests applicants only identify as “protected veteran.” The post-job offer form provides the ability to identify for the specific veteran categories.

The OFCCP will also provide a standardized form for self-identification as an individual with a disability. Contractors will be required to use the language provided by the OFCCP. However, this form has not been released yet. You should note that if an applicant identifies that he or she has a disability, the organization should inquire if an accommodation is necessary.

CAI will continue to provide information about the new Affirmative Action requirements and help you understand the impact on your organization. For more information on these new rules, join CAI for a webinar presenting these changes on December 18, 2013. Register at If you have additional questions or would like to discuss these new rules, please contact Kaleigh Ferraro at 919‑713‑5241 or


OFCCP Announces Major Changes for Government Contractors

Tuesday, October 22nd, 2013

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh blogThe last couple of months have been busy for the Office of Federal Contract Compliance Programs (OFCCP). They have announced several changes that will affect the requirements and practices of federal contractors and subcontractors. What are the changes and how do they affect you?

The first change was the release of the revised Federal Contract Compliance Manual (FCCM). This is the guide that compliance officers at OFCCP use during audits of contractors. These revisions have been in the works for some time now. The FCCM does not contain new rules or requirements but rather provides guidance to auditors on how to conduct offsite and onsite audits. The FCCM may serve as a helpful document for contractors to review in order to understand the policies and practices of the OFCCP during audits. This revised manual is intended to standardize the investigations between regions, offices and even compliance officers. If you’d like to see the revised manual, visit

The OFCCP also announced on August 27, final rules for Section 503 of the Rehabilitation Act and Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). The initial proposed rules were issued about two years ago and the OFCCP had been saying that the final rules would happen soon. These final rules will require federal contractors to make significant changes to current practices and analysis. These rules were published in the Federal Register on September 24, 2013 and become effective 180 days after the publish date.

What this means to companies with Affirmative Action Plans is that AAPs in place prior to March 24, 2014 can be developed using the old (current) rules. AAPs developed after March 24, 2014 will need to incorporate the new requirements in the plans. Below are some of the major changes affecting government contractors. CAI will provide more information and training on these new requirements as well as provide suggestions on how organizations can implement necessary changes.

Changes to VEVRAA

  • Rescission of 41 CFR Part 60-250: The Final Rule rescinds the outdated 41 CFR Part 60-250 in its entirety. However, veterans that were formerly protected only under Part 60-250 will still be protected from discrimination under the revised 41 CFR Part 60-300.
  • Hiring benchmarks: The Final Rule requires that contractors establish annual hiring benchmarks for protected veterans. Contractors must use one of two methods to establish their benchmarks. Contractors may choose to establish a benchmark equal to the national percentage of veterans in the civilian labor force (currently eight percent), which will be published and updated annually by OFCCP. Alternatively, contractors may establish their own benchmarks using certain data from the Bureau of Labor Statistics (BLS) and Veterans’ Employment and Training Service/Employment and Training Administration (VETS/ETA) that will also be published by OFCCP, as well other factors that reflect the contractor’s unique hiring circumstances. The data will be posted in the Benchmark Database (coming soon).
  • Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.
  • Invitation to self-identify: The Final Rule requires that contractors invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process. The Final Rule includes sample invitations to self-identify that contractors may use.
  • Incorporation of the EO clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.
  • Job listings: The Final Rule clarifies that when listing their job openings, contractors must provide job opening information to the state or local job service in the format required, so that the job service can make the jobs available to veteran job seekers.
  • Records access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either onsite or offsite, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

Changes to Section 503 of the Rehabilitation Act

  • Utilization goal: The Final Rule establishes a nationwide seven percent utilization goal for qualified Individuals with Disabilities (IWDs). Contractors will apply the goal to each of their job groups, or to their entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.
  • Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.
  • Invitation to self-identify: The Final Rule requires that contractors invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Final Rule also requires that contractors invite their employees to self-identify as IWDs every five years, using the prescribed language. This language will be posted on the OFCCP website (coming soon).
  • Incorporation of the EO clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.
  • Records access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either onsite or offsite, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.
  • ADAAA: The Final Rule implements changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of “disability” and certain nondiscrimination provisions of the implementing regulations.

Please feel free to contact me directly with questions at or 919‑713‑5241.

OFCCP Releases New Compensation Directive for Government Contractors

Tuesday, April 2nd, 2013

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh blogEffective February 28, 2013, the Office of Federal Contract Compliance Programs (OFCCP) officially rescinded their previous guidelines on compensation. This rescission comes as no surprise since they had published in January 2011 a Notice of Proposed Rescission. The OFCCP stated the previous guidelines were too limiting and “constrained OFCCP’s ability to investigate pay discrimination to the full extent permitted by law.” These previous guidelines also conflicted with other government agencies’ investigated pay discrepancies.

The OFCCP replaced the rescinded guidelines with Directive 307, which is supposed to provide contractors clear insight into how the OFCCP will conduct compensation reviews during audits. However, this “clear guidance” doesn’t really live up to this billing. What it actually does is list multiple protocols and factors the OFCCP may use during a compensation review. The OFCCP makes it clear they may use any number of these methodologies during audits and they will be determined on a case-by-case basis. This of course, gives the OFCCP a great deal of flexibility during investigations and makes it extremely difficult for contractors to determine if they are “compliant” based on the OFCCP’s methods.

The consequence of this new Directive is that it affects contractors’ compensation policies/procedures and data at both the macro and micro levels. Employers must be able to address how their practices influence compensation, as well as prepare for specific individual analysis. The changes to the compensation review procedures have the potential to cause companies additional angst during audits.

The following is a high level overview of some of the changes and the issues they may cause employers:

  • There are eight possible “steps” to be taken when conducting the compensation portion of an OFCCP audit and potentially additional consideration factors within the steps.
    • It is unclear which “step” the OFCCP will actually use during an investigation and/or the progression through any and all of these steps. The OFCCP also may change direction at any point during their review.
  • The OFCCP has indicated that several of their analyses will be conducted by broad groupings of employees and not just at the position title level.
    • With wide groupings such as pay grades, AAP job groups or pay analysis groupings being used for analysis, there is a greater opportunity for pay discrepancies to be identified during the OFCCP’s investigation.
  • Any documentation regarding company policies or practices that may be related to compensation may be called into question during the OFCCP’s review. Examples include but are not limited to performance systems, commission, overtime hours, training, etc.
    • This more detailed review of company practices will likely cause OFCCP to uncover issues with inconsistent pay practices as well as other employment policies.
  • Regardless of findings and whether or not an issue is identified during previous “steps” or reviews, the OFCCP has indicated they may continue their investigation into contractors’ compensation.
    • This seems to indicate that OFCCP audits will be comprehensive and involve many steps and reviews and will likely be a long and drawn-out (and potentially expensive) process.

The Directive seems to serve as an indication that the compensation reviews conducted by the OFCCP will cause many challenges among the contractor community, especially initially. To review Directive 307 in its entirety, visit

If you would like to discuss these new guidelines in detail and the potential impact on your organization, please contact me directly at 919‑713‑5241 or CAI provides AAP plan preparation, OFCCP audit assistance, onsite training and webinars for hundreds of companies each year. We are happy to share our expertise with you!


7 Takeaways from the 2012 Triad Employment Law Update

Thursday, November 15th, 2012

Last Wednesday, Nov. 7, CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro. More than 160 HR professionals and company executives attended the conference to receive the latest updates in state and federal employment law.

Lawyers from Constangy, Brooks & Smith, LLP shared presentations with attendees on a number of topics related to recent changes in regulations. Some of the topics covered included updates from the new NLRB, best practices for immigration law compliance and changes from healthcare reform.

Below are seven key insights from the informative law update:

NLRB (National Labor Relations Board) Social Media Policy

  • Employees using social media to complain about their employers may be engaged in protected concerted activity under NLRA
      • Protected posts: seeking advice from coworkers, calling supervisors names, criticizing company actions
      • Unprotected posts: don’t involve other employees or individual gripes, criticizing the company’s clients and complaints to third parties
  • The board continues to offer policy guidance on a variety of social media cases

EEOC (Equal Employment Opportunity Commission) Issues Final ADAAA (American’s with Disabilities Amendments Act) Regulations

  • Eliminated “per se” list of covered disabilities
  • Rejects minimum duration rule that results in short term condition being a disability

New EEOC Regulation on Age Discrimination

  • November 16, 2011—EEOC approves final regulation
    • Now easier for plaintiffs to prove age discrimination in disparate impact cases
    • Facially neutral practices that adversely impact older employees is discriminatory unless employer can prove “reasonable factor other than age”

OFCCP (Office of Federal Contract Compliance Programs) and Proposed Rule on Hiring Goals for Disabled

  • Proposed rule requires federal contractors to set a goal that 7 percent of each job group should be persons with disabilities
    • Require applicants to self-identify as disabled

Correct Your I-9s

  • In general, never do a new I-9,  no matter how bad the errors
    • Common errors that can be fixed: employee didn’t sign, employee didn’t date, employee didn’t fill in “A” number, employee didn’t fill in expiration date, employer didn’t fill in date of hire, employer didn’t fill in street address of company
    • Errors that can’t be fixed: not completing form within three days of hire and missing information from former employees

Avoiding Whistleblower and Retaliation Claims

  • Whistleblower: employer violation of law, rule or regulation
  • Retaliation: related to employee’s individual rights
  • The following are protected from retaliation:
    • current employees, former employees, job applicants and associates of those employees who engage in  protected activity
  • Three elements make up a claim:
    • Protected activity, adverse action and causal connection
    • Employee must have a good faith belief that there was a violation of a law when they engaged in protected activity (Title VII)

Effects of Healthcare Reform

  • Several mandates and changes become effective
    • Implementing external review processes
    • W-2 reporting of the value of employer provided health benefits
    • Summary of Benefits and Coverage (SBC) to be given to all participants at enrollment and at each subsequent annual open enrollment
    • Automatic enrollment for employers with more than 200 full-time employees will be required for new full-time employees, with an opt-out notice
    • Health flexible spending account limit will be $2,500

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

7 Updates on NLRB and OFCCP Proposed Rules and Posters

Tuesday, August 14th, 2012

Make sure your company is complying with recent changes in employment regulations and up to date on the newest proposals from the National Labor Relations Board (NLRB) and the Office of Federal Contract Compliance Programs (OFCCP). There are several rules “in limbo” right now due to delays or court challenges. Review the seven updates below to avoid costly fines:

1. The NLRB Poster Rule

The controversial NLRB poster highlighting the right to strike, pass out literature and join a union is on hold due to litigation. The final briefs were just filed with the federal court in Washington, DC. Oral arguments are set for September 11 in the case. No one can say when there will be an answer. In the meantime, the poster is not required. [Note: Federal contractors fall under older, different rules.]

2. The Micro-Unit Issue

The NLRB ruled in favor of the International Association of Machinists in the Nestle Dreyer Ice Cream case, allowing a “micro-unit,” or historically-small unit, to proceed to election. The union won the vote and the company has appealed. CAI is supporting the amicus brief by the National Association of Manufacturers (NAM) to prevent these “micro-units” from being carved out of facility-wide voting units. [Note: The IAM lost three prior elections in the broader, traditional voting unit.]

3. The Ambush Election Rules

The NLRB issued rules in December 2011 changing key provisions of their election procedures. The most controversial changes shorten the time between an election petition and voting day. Court challenges were filed on two theories: (1) the Board has no authority to do this by rulemaking and (2) there was no quorum during the Board vote on the rules. The district court ruled on May 15 that there was no quorum (since only two Board members voted) and the Board agreed to “temporarily” suspend these rules. On July 29, the Board asked the court to reconsider its order because a third Board member was arguably “present” for the vote. No court has yet ruled on the Board’s authority to issue the rule in the first place. About 150 election petitions were processed under the new rules before they were suspended.

4. The USDOL Persuader Rules

The US Department of Labor (USDOL) issued proposed rules to broaden the definition of a “persuader” in union election campaigns. In summary, the revisions could require disclosure of the costs and sources of any activity that could affect an employee’s vote, such as management training to help supervisors do a better job. There is no recent activity on this and it is unlikely we will see a final rule before the elections. The American Bar Association is now officially opposed to the rules.

5. Congressional Attempts to Override Recent Rulings

There is activity in the US House of Representatives to legislatively override the NLRB ambush election rules, the USDOL persuader rules and the micro-units case. The bill has made it through “markup” and into the assigned Committee. It is hard to see how passage by the House would have any impact given the vote count in the Senate and the need for Presidential approval.

6. OFCCP Disability Rulemaking

The OFCCP (part of USDOL) issued a Notice of Proposed Rulemaking December 9, 2011 seeking comments on a possible rule to set a seven percent national “utilization goal” for hiring of disabled employees. No action has yet been taken to put the rule in place. The NAM and its allies just sponsored a study by the Center for Corporate Equality assessing the costs and issue raised by the Proposed Rule. That study has been sent to OFCCP and to the Office of Management and Budget, which must assess the cost of employer implementation. We do not expect action before the November election.

7. NLRB Sues Hyatt Hotels for At-Will Statement in Handbook

The NLRB filed a complaint against Hyatt Hotels in February for maintaining a handbook statement on at-will employment. Apparently, the Board does not object to defining “at-will” employment, to reserving the right to change rules at any time, or to saying that nothing in the handbook alters at-will status. The Board does object to seeking an employee acknowledgement form and signature where the handbook stated that at-will status could not be changed by any manager other than the President or COO. The Board viewed this as waiving the right to seek a union to bargain away those terms. This is common language in handbooks to prevent an employee from alleging a mid-level manager made a promise of employment for a fixed term or for “life.” The Board said since a union contract could alter that language, the employer’s statement was “overly broad” and violated the law. Hyatt agreed to change the wording before it went to court. This is just the latest in a string of questionable interpretations of handbook language by the NLRB. As a result, it has become difficult to predict what part of a typical employee handbook will be challenged next.

If you have questions regarding any of the issues mentioned in this article, please contact a member of CAI’s Advice and Counsel team at 919‑878‑9222 or 336‑668‑7746.

Photo Source: Victor1558

CAI’s Experts Take the Confusion out of Affirmative Action Planning

Thursday, November 3rd, 2011

Madison Upton (left), Kaleigh Ferraro (right)

In October CAI’s Affirmative Action Plan (AAP) Experts, Kaleigh Ferraro and Madison Upton, hosted a free webinar to educate current and future government contractors on the basics of creating a compliant AAP. The team compiled a list of questions most frequently asked by organizations that are required to have a written AAP. If your company has 50 or more employees and holds a federal government contract or subcontract of $50,000 or more, read the answers below to make sure your organization stays compliant.


AAP Frequently Asked Questions

1.     When do we have to turn in our AAP?

Contractors and subcontractors are required to develop AAPs annually. AAPs are not submitted unless your company is selected for an audit.


2.     Are there specific qualifications for employees that must be included in our AAP?

All full-time and part-time, regular employees must be included in AAP reports. Employees on short-term leave or military leave should be included as well. Temporary employees, such as co-ops and interns, are not typically included in AAPs.


3.     How long do we need to keep our AAPs?

Contractors need to keep their current AAP and their AAP from the previous year.  All others may be discarded. However, if your organization is under audit, you must maintain all existing AAPs and accompanying reports until the audit’s conclusion. For example, if you are audited, and it takes three years from today to close the investigation, you must maintain your AAPs from 2010, 2011, 2012, 2013 and 2014, as well as pertinent employment records.


4.     What if employees or applicants choose to not disclose their race, ethnicity, gender, disability status or veteran status?

Government contractors and subcontractors are required to develop reports that use race and gender employee information. These organizations must solicit race and gender information from applicants and employees, but individuals may choose to not disclose this information, as it is voluntary to self identify.

Organizations are allowed to visually identify applicants and employees who do not self identify themselves so they can be included in AAP reports and/or EEO-1 reports. The OFCCP suggests that members of HR or managers make the visual identifications.

Contractors are not obligated to guess the race, ethnicity or gender of people who apply online or through resume and decline to self identify. If the applicant is interviewed, then a contractor may visually identify the candidate in person.


5.     How does the OFCCP choose companies to audit?

The OFCCP maintains a listing of federal contractors and uses the Federal Contractor Scheduling System (FCSS) and “administratively neutral selection criteria” to choose organizations that will be audited. Items that are considered by the FCSS may include EEO-1 reports, establishment size, random sampling of contractors and mathematical models that compare workforce profiles with other establishments in the same industry and labor market.

The OFCCP typically sends out audit scheduling letters twice a year.  The OFCCP regional offices notify approximately 2,500 establishments in early October, and a second list of approximately 5,000 establishments in early March. Organizations that are not in the FCSS can be selected for audits as well.  These organizations may include corporate offices, approved functional AAPs, or companies with credible reports of alleged violations of laws and regulations. If an organization is selected for an audit, it will not be selected again for 24 months.


6.     How should we respond to an audit letter?

When the OFFCP mails a scheduling letter to a contractor or subcontractor, the organization has 30 days to respond to the letter. The scheduling letter will request information, such as the written AAPs, compensation data and personnel activities, which include hires, applicants, promotions and terminations.


7.     What types of penalties can the OFCCP assess during an audit?

The OFCCP can collect compensatory and punitive damages, which are often the result of back pay for candidates who are not selected, or unexplained salary differences between employees. Organizations may also agree to conciliation agreements that may result in additional submitted reports.


8.     We are a subsidiary of a parent company.  We do not have any contracts, but our parent company does.  Are we a contractor and therefore subject to AAP regulations?

The OFCCP uses the NLRB test of common ownership to determine if a subsidiary is covered. If your organization fits one of the characteristics below, you are required to complete an AAP.

  • Interrelation of operations – there are common services provided between companies, such as insurance, retirement policies, federal tax ids, etc.
  • Centralized control of labor relations – all locations are subject to identical or similar personnel policies, which are determined by the corporate office. These policies include decisions to hire, promote, terminate, etc. All decisions must be approved by corporate headquarters.
  • Common management – the multiple locations share officers, boards of directors, presidents, etc. Subsidiary facilities are not independent in functions concerning operations, pay, benefits, etc.
  • Common ownership or financial control – the parent company and subsidiaries are owned by the same organization.


9.     Are we required to submit all of our organization’s job openings with the state job service?

Yes, contractors who hold contracts of $100,000 or more must list all job openings with the state job service.  North Carolina requires all open positions to be listed with the NC Employment Security Commission, but there are three exceptions to this regulation:

  • Positions soliciting executives and senior management candidates
  • Positions that will be filled internally
  • Positions that will last fewer than 3 days


10.   We post our open positions on internet jobs boards, so we receive a lot of interested candidates. Do we have to regard everyone who applies as an applicant for consideration in our analysis?

No, the OFCCP issued an Internet Applicant Rule to address the issue of recruiting through online sources.  In order to be an internet applicant, a candidate must satisfy the following four criteria:

  • Individual submits interest in employment through internet or other electronic data technology
  • The contractor considers the individual for employment
  • The individual possesses the basic qualifications for the position
  • The individual does not withdraw himself or herself from consideration


For additional answers to your AAP questions, please contact one of CAI’s AAP experts: Kaleigh Ferraro at or Madison Upton at You can also reach Kaleigh or Madison at 919-878-9222 or 336-668-7746.