2L Equal Opportunity Clauses and Other Requirements
Contractors have an obligation to meet certain requirements in the equal opportunity contract clauses pertinent to each OFCCP-enforced law, such as notices and postings requirements. Some of these requirements are extremely important and crucial to ensuring that contractors meet EEO obligations and that failure to meet these obligations does not result in discrimination. Additionally, the contractor may have posting and other requirements under Executive Order 13496.
While COs may have adequately confirmed some of these requirements during the desk audit, they verify all the requirements during the on-site review. COs can provide compliance assistance to the contractor at any time during the review process in order to expedite resolution of identified problems. However, the contractor’s failure to comply with an equal opportunity clause or other regulatory requirement constitutes a violation.
If the contractor asserts that it has fully corrected all identified problems, COs must seek to confirm this assertion. For example, if a required posting under Executive Order 11246 or Executive Order 13496 was missing and the contractor agreed to correct this problem, the CO must conduct a visual inspection to determine that the required posting is now present. The CO must include any other outstanding technical violations in the NOV.149
149. See Chapter 8 – Resolution of Noncompliance.
2L00 Equal Opportunity Clauses and Other Requirements of Executive Order 11246, VEVRAA and Section 503
In addition to requiring that covered contractors not discriminate against, and take affirmative action on behalf of, covered group members, the laws enforced by OFCCP contain a number of other requirements that COs must verify the contractor has met. COs must inspect the appropriate contractor records and obtain copies of them, as needed. COs must record their observations and whether the requirements were met in the SCER in Part C.
a. Requirements Applicable to Executive Order 11246, Section 503 and VEVRAA.
- Contractors must advise subcontractors, including vendors who are subcontractors, of their obligation to comply with nondiscrimination obligations and develop an AAP if they meet coverage thresholds by including the equal opportunity clause in all covered contracts and subcontracts (including purchase orders). The clause may be included by reference under Executive Order 11246. Under Section 503 and VEVRAA, the clause shall be made a part of the contract by citation to 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a), respectively, and inclusion of specific language, in bold text, after the citations.150 Contractors may combine all of their required equal opportunity clauses into a single “incorporation by reference” clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability equal opportunity “incorporation by reference” clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:
- This contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing or disclosing compensation. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
In the absence of the clause in covered documents, it is applicable by operation of law. COs must question contractor officials as to how and when such notification occurs, and must review a sampling of subcontracts to determine whether they include the required clause.
- Contractors must post notice of their EEO and affirmative action obligations in conspicuous places, available and accessible to both employees and applicants for employment whether by physical or electronic posting. “EEO is the Law” posters (and required supplements) should be in break rooms, common areas for employees and areas frequented by applicants for employment. COs must conduct a visual inspection to confirm the required posting. Until the “EEO is the Law Poster” is updated to reflect all of OFCCP’s protected bases, COs must inspect the contractor’s premises to ensure the “EEO is the Law” poster supplement is also displayed. The most current versions of the “EEO is the Law” poster and supplement are available at http://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm (last checked September 9, 2019).
- Contractors must inform any labor unions or worker representative organizations with which they have a collective bargaining agreement or other agreement of the contractor’s EEO and affirmative action commitments under the regulations. COs must obtain documentation that indicates the contractor provided this notice and will confirm receipt of notice with union representatives.
- Advertisements and solicitations for employment must state that the contractor will consider all qualified applicants, regardless of the protected bases. For contractors only covered by Executive Order 11246, it is acceptable to use the phrase “Equal Opportunity Employer” or list out all the bases. However, for those covered by Section 503 or VEVRAA, the tagline should at a minimum state “disability” and “vet.” For example, a contractor could satisfy all three laws by stating in job solicitations that “all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.” It could also use the abbreviation “Equal Opportunity Employer – vets, disability” on its job advertisement taglines. COs will review a sample of such advertisements and solicitations during the on-site review.
- Contractors must develop and maintain an AAP for each establishment, making them available for inspection as required by the regulations. COs must confirm that the contractor is meeting this obligation.
b. Requirements Applicable Only to Executive Order 11246.
- Contractors must notify subcontractors, including vendors who are subcontractors, of their obligation to file an EEO-1 Report annually. COs must confirm that the contractor met this obligation.
- Contractors must disseminate the Pay Transparency Nondiscrimination Provision to employees and applicants for employment. COs must review the contractor’s employee manual or handbook to determine whether the Pay Transparency Nondiscrimination Provision is included.151 COs must also determine whether the contractor has disseminated the provision either by electronic posting or by posting hard copies of the provision in conspicuous places available to employees and applicants.152 This provision provides applicants and employees notice that the employer will not discriminate against them for inquiring about, discussing or disclosing their pay or, in certain circumstances, the pay of their co-workers. Because OFCCP believes that uniform use of the nondiscrimination provision is necessary to ensure consistency and clarity in the information provided to applicants and employees, contractors must, at a minimum, use the language provided in the provision at https://www.dol.gov/sites/dolgov/files/OFCCP/pdf/pay-transp_%20English_formattedESQA508c.pdf to satisfy both dissemination requirements. Nothing limits a contractor from providing additional information to their employees about their rights and obligations.
c. Requirements Applicable Only to VEVRAA.
- VETS-4212 Report. The contractor is required to submit a VETS-4212 Report to the DOL’s VETS annually. The report includes the numbers of protected veterans in the contractor’s workforce by job category and hiring location. Contractors must also collect data indicating the total number of employees and covered veterans hired during the reporting period. COs must confirm that the contractor has filed the VETS-4212 Report for the evaluation period.153 If the contractor did not file the VETS 4212 Report, COs will indicate in the CMS that it wasn’t filed. Though OFCCP does not cite contractors for failure to file a VETS-4212 Report, OFCCP reports nonfilers to VETS.
- Mandatory Job Listing. When a company becomes a federal contractor subject to VEVRAA, it must advise the ESDS in each state where the company has establishments that the company is a federal contractor and that it desires priority referrals of protected veterans for job openings within the state.154 Contractors must also include the contact information for the job listings that they send to the ESDS.155 The contractor must also immediately list all employment openings which exist at the time of the execution of the federal contract with the appropriate ESDS where the opening exists, and provide the name and location of each hiring location and the contact information for the contractor official responsible for hiring at each location.156 In providing the listing of employment openings, contractors must provide the listing information in a manner and format permitted by the delivery system, so that it can access and use the information to make the job listings available to job seekers. The form and format used by employment service delivery systems can vary from state to state. However, using the appropriate form and format helps increase the likelihood that the job listing will actually be posted by the ESDS. Doing so also allows the services to provide priority referral of veterans protected by VEVRAA. CO must remember that job “listing” is the act of delivering information about job openings to the state workforce agency or local ESDS. Job “posting” is the act of a state workforce agency or ESDS making the job listing visible or public for jobseekers to access and use.
In addition to that initial notification, contractors must list employment openings with the appropriate ESDS when openings occur throughout the performance of the contract. This can be accomplished by listing openings directly with the state workforce agency job bank or with the local ESDS where the opening occurs. Also, some contractors may provide their listing information to a privately-run job service or exchange which, in turn, provides the listing information to the appropriate ESDS. These private arrangements also satisfy the contractor’s listing requirement as long as the privately-run service provides the information to the delivery system in a manner and format that allows the delivery system to provide priority referral of protected veterans. These privately-run services can typically provide COs with reports of job listings on behalf of their client contractors. These reports can go by different names, depending on which the privately-run service provider was used by the contractor.157 Nonetheless, ensuring that the required job listing documentation is maintained is ultimately the responsibility of each contractor.
Contractors must list all employment openings except for executive and senior management positions, positions that will be filled internally, and jobs lasting three days or less. If possible, COs will contact the ESDS used by the contractor in advance of the on-site review and request confirmation that the contractor has listed its employment openings with that office. COs must obtain from the delivery system a listing of the job orders the contractor placed, by job title and date. COs must then compare this list with the list of jobs the contractor has filled through new hires, identify any jobs not listed with the employment office and determine whether they should have been listed.158
150. See 41 CFR 60-300.5(d) and 41 CFR 741.5(d) for the specific required language under the implementing regulations for VEVRAA and Section 503.
151. See 41 CFR 60-1.35(c)(1).
152. See 41 CFR 60-1.35(c)(2).
153. COs and others, as appropriate, may access the VETS-4212 database to verify whether the contractor submitted the report, as well as request copies of the submitted forms from the contractor.
154. The term “employment service delivery system” is defined at 41 CFR 60-300.2(j). In general, the term refers to local American Job Centers (one-stop centers) and state workforce agencies.
155. See 41 CFR 60-300.5(a)4.
156. Immediately listing of employment openings with the appropriate ESDS means listing the job at least concurrently with the use of any other recruitment sources or effort. See 41 CFR 60-300.5(a)3.
157. Two common job listing reports COs may encounter are the “VetCentral Job Order Ad Hoc Compliance Report” and the “NLx Return Receipt Report.” There are, however, other types of reports. OFCCP does not make endorsements or recommendations concerning privately-run job service providers.
158. The ETA and OFCCP jointly issued the Training and Employment Notice (TEN) directing State Workforce Administrators, State and Local Workforce Agencies and State Workforce Liaisons that they must provide the listings to OFCCP at no cost. (TEN 15-14). A copy of TEN 15-14 is available at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3490. A Sample letter the CO can use to request the listings is included as Letter L-3.
Pursuant to Executive Order 13496 and its implementing regulations, 29 CFR. Part 471, federal contractors and subcontractors must notify employees about their rights under the NLRA. Contractors with covered contracts must meet their obligations under Executive Order 13496.159
Executive Order 13496 requires that covered contractors post notices specifying employee rights under the NLRA. The NLRA guarantees employees the right to organize and bargain collectively with their employer, and to be free from retaliation for so doing. Contractors must post the notice conspicuously in and around their establishments, work sites, and offices so that it is prominent and employees who are covered by the NLRA and directly or indirectly (e.g., maintenance, repair, personnel, payroll work) engaged in contract-related activity can readily see it. COs must inspect employee bulletin boards and areas frequented by applicants and employees, such as break rooms, personnel offices and common areas, for the required poster. If the contractor customarily posts employee notices regarding the terms and conditions of employment electronically, then the contractor must also post the Executive Order 13496 notice electronically. COs must verify the contractor’s compliance.
Executive Order 13496 also requires that covered contractors ensure that each subcontract and purchase order related to their federal contract(s) contains a notice of this posting obligation. COs must review a sampling of subcontracts and purchase orders to ensure that a covered contractor complies with this requirement.
There are exceptions to the posting requirements so COs must consult with the RSOL, their supervisors or the national office if there are questions about coverage under Executive Order 13496.160 If a violation of Executive Order 13496 is not corrected, the Director of OFCCP, or a designee, refers the matter to the Director of Office of Labor-Management Standards (OLMS), who may take enforcement action under 29 CFR 471.13, as appropriate.
159. See OFCCP Directive 2010-01, “Verification Procedures under E.O. 13496, Notification of Employee Rights under Federal Labor Laws, and the Department of Labor’s Implementing Regulations at 29 C.F.R. Part 471.”
160. See Executive Order 13496 Frequently Asked Questions, http://www.dol.gov/ofccp/regs/compliance/EO13496_faqs.htm (last accessed Sept. 10, 2019).
COs must verify that the contractor has complied with all regulatory requirements regarding personnel records.161 If the contractor’s recordkeeping is not in conformance with 41 CFR 60-1.12, 41 CFR Part 60-3, 41 CFR 60-300.80, or 41 CFR 60-741.80, the CO must record the recordkeeping violations in the SCER in Part C. Failure to preserve complete and accurate records as required by these regulations constitutes noncompliance with the contractor’s obligations. If the contractor has destroyed or failed to preserve records, the CO may presume that the information would have been unfavorable to the contractor. Additionally, if a contractor’s case file has multiple citations for recordkeeping violations and there is evidence of a recurrence, the CO will treat it as a repeat violation.162
161. See Chapter 1C02 – Regulatory Citations for Recordkeeping.
162. FCCM Chapter 8 – Resolution of Noncompliance.