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Secretary of Labor Thomas E. Perez

US Department of Labor: Spring Regulatory Agenda 2010

Office of Federal Contract Compliance Programs (OFCCP)

Topic: Construction Contractor Affirmative Action Requirements

Government contractors and subcontractors must comply with laws and regulations that ban discrimination and establish affirmative action requirements to ensure equal employment opportunity.

Background

Executive Order 11246

  • Executive Order 11246, as amended by Executive Order 11375, prohibits discrimination in hiring or employment decisions on the basis of race, color, religion, sex, and national origin. It applies to all contractors and subcontractors with non-exempt Federal and federally-assisted construction contracts and subcontracts in excess of $10,000.
  • Under the regulations implementing Executive Order 11246, nonconstruction (supply and service) contractors and subcontractors with 50 or more employees and a Federal contract or subcontract of $50,000 or more are required to develop a written affirmative action program that is designed to ensure equal employment opportunity, and sets forth specific and action-oriented programs to which a contractor commits itself to apply every good faith effort.
  • Contractors and subcontractors with a Federal or federally assisted construction contract in excess of $10,000 are required to take affirmative action steps at least as extensive as the 16 steps contained in the construction contract specifications. The actions include, among others, establishing a harassment policy, identifying and maintaining a list of recruitment sources, and engaging in outreach and recruitment of minorities and women for the construction trades.
  • Construction contractors and subcontractors are also required to make good faith efforts to meet the percentage goals for the participation of women and minorities in the contractor’s construction workforce that were included in the solicitation.  
  • Affirmative action goals under Executive Order 11246 do not require race- or gender-based hiring and promotion and quotas are expressly prohibited.

OFCCP Enforcement

  • In carrying out its responsibilities, the OFCCP uses the following enforcement procedures:
    • Offers technical assistance to federal contractors and subcontractors to help them understand the regulatory requirements and review process.
    • Conducts compliance evaluations and complaint investigations of the federal contractors’ and subcontractors’ personnel policies and procedures.
    • Obtains Conciliation Agreements from contractors and subcontractors who are in violation of regulatory requirements.
    • Monitors the contractor’s and subcontractor’s progress in fulfilling the terms of a Conciliation Agreement through periodic compliance reports.
    • Forms linkage agreements between contractors and Labor Department job training programs to help employers identify and recruit qualified workers.
    • Recommends enforcement actions to the Solicitor of Labor.
    • The ultimate sanction for violations is debarment - the loss of a company's federal contracts. Other forms of relief to victims of discrimination may also be available, including back pay for lost wages.

Overview of Rulemaking Project Regarding Construction Contractor Affirmative Action Requirements

  • During the Spring 2010 Regulatory Agenda cycle, OFCCP intends to continue work on a notice of proposed rulemaking (NPRM) that would enhance the effectiveness of the affirmative action requirements for Federal and federally assisted construction contractors and subcontractors.
  • The NPRM would remove outdated provisions and update the regulations that set forth the actions construction contractors are required to take to implement their affirmative action programs and would address the content of those programs in the areas of recruitment, training, and apprenticeships.
  • To contribute to the Department’s initiative to prevent the misclassification of workers as independent contractors, the NPRM will also include a proposal requiring that Federal and federally assisted construction contractors take steps to properly classify workers similar to the proposal being developed by the Wage and Hour Division.

Benefits of Construction Contractor Affirmative Action Requirements

  • The Department estimated that approximately 22 percent of the American workforce is employed by federal contractors.
  • OFCCP believes the program will help increase workers' incomes and narrow wage and income inequality, break down barriers to fair and diverse workplaces so that every worker's contribution is respected, help workers who are in low wage jobs or out of the labor market find a path into middle class jobs, and provide workers with a voice in the workplace.

Stakeholders Affected by Construction Contractor Affirmative Action Requirements

  • The Department estimates that the program will affect contracting agencies, applicants, construction contractors and subcontractors, unions, community organizations, and construction trade groups and associations.

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This fact sheet has been developed by the U.S. Department of Labor, Office of Federal Contract Compliance Program, Washington, DC 20210.  Voice phone: 1-800-397-6251.