3I Evaluation of Implementation of Affirmative Action Steps Set Forth in 41 CFR 60-4.3(A) Paragraph 7
In evaluating a contractor’s compliance with the affirmative action steps, COs must verify that the records, interviews and other information provided by the contractor demonstrate the contractor’s compliance. The CO’s evaluation of the contractor’s compliance is based on the contractor’s effort to achieve maximum results from its actions. For compliance review purposes, the affirmative action specifications in 41 CFR 60-4.3(a) paragraph 7 are grouped into the following five major evaluation categories:
- Recruitment practices;
- EEO policy and implementation;
- Personnel operations; and
- Contracting activity.
Each of these evaluation categories is discussed in subsections 3I00 through 3I04, below.
These categories correspond to the organization of the Form CC-40 Standard Compliance Evaluation Report (or the Construction SCER).206 The CO will evaluate the VEVRAA and Section 503 affirmative action requirements from Part III.H of the Construction SCER. The discussion below provides instructions on completing the Construction SCER.
206. See Appendix A-6 Standard Compliance Evaluation Report (Construction).
The following subsections pertain directly to Part III.A of the Construction SCER and set forth the procedures for evaluating the contractor’s recruitment practices.207
a. Recruitment Sources. The contractor must establish and maintain a current list of recruitment sources, including sources for minorities and women. The contractor must provide written notification to these recruitment sources and to community organizations when it or its union(s) has employment opportunities available. The contractor must maintain a record of recruitment source responses. See Item III.A.l. of the Construction SCER. To evaluate the contractor’s compliance with this specification, the CO will:
- Determine whether the contractor maintains a current list of recruitment sources.
- Determine whether the list is current (has been updated within the last year); whether it contains an adequate number of active, available sources; and whether the recruitment sources listed are in operation, i.e., active.
- Contact referral sources to verify that they received recruitment letters and emails, and to determine whether they actually made referrals.
- Interview employees involved in recruiting applicants and hiring supervisors to determine whether they use the list when vacancies occur.
- Review correspondence with recruitment sources. This review should:
- Verify that the contractor sent and the recruitment sources received the letters, and that the contractor made follow-up contact.
- Ensure that the letters contained a statement of the contractor’s EEO policy and the nature of the employment opportunity.
- Review the contractor’s files, telephone logs or other evidence to determine if the contractor maintained copies or records of responses. Determine if the contractor followed-up on responses.
b. Applicant Records. In addition to preserving any personnel and employment record as described at 41 CFR 60-1.12, the contractor should maintain a current file of the names, addresses, telephone numbers, sex, race and ethnicity of each minority and female walk-in applicant or referral from a union, recruitment source or community organization, and of the action taken with respect to each individual.208 If an individual was sent to the union hiring hall for referral and was not referred back to the contractor by the union or, if referred, was not employed by the contractor, the documentation in the file should include the reason why the individual was not hired (or referred) and any action the contractor took.209 The CO should fully investigate any indications of possible discriminatory practices. To evaluate the contractor’s compliance with this specification, the CO should:
- Determine whether the contractor maintains a current file that lists the names, addresses, telephone numbers, sex, race and ethnicity of each walk-in applicant and each referral from a union or community source.
- Evaluate the file for active construction recruitment sources such as unions and community referral organizations.
- Interview supervisors responsible for hiring to determine the general hiring procedure and any specific procedures they use to recruit workers, including minorities and women.
- Determine what sources the contractor uses to obtain job applicants. Sources may include, for example, walk-ins, union hiring hall, newspaper advertisements, word of mouth, and recruitment and training programs.
c. Failure of Union to Refer. The regulations require the contractor to immediately notify the Director, in writing, when a union(s) with which it has a collective bargaining agreement has not referred to the contractor a minority or woman sent by the contractor or when the contractor has other information that the union referral process has impeded the contractor’s efforts to meet its contractual EEO obligations.210
To evaluate the contractor’s compliance with this specification, the CO should determine whether the contractor took any other actions to facilitate hiring the individual such as additional written contact with the union specifically requesting referral of that individual, or attempting to hire the individual directly, without union referral. Whenever the contractor states in writing that the union has not referred minorities and women or that other union actions have impeded its affirmative action efforts; there are allegations that the union has committed unlawful discrimination; or the CO becomes aware that union actions impede or threaten to impede the contractor’s affirmative action efforts, the CO should discuss the matter with his or her supervisor as soon as possible.
d. Directing Recruitment Efforts. In accordance with regulations, the contractor is required to engage in recruitment efforts that reach out to all demographic groups in the recruitment area, including minority, women’s and community organizations, and schools with minority and female students; and engage in recruitment efforts that reach out to recruitment and training organizations for minorities and women serving the contractor’s recruitment area and employment needs.211
Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the contractor should send written notification to organizations in the recruitment area, describing the openings, screening procedures and test(s) to be used in the selection process. (See Item III.A.4. of the Construction SCER.)
To determine whether the contractor is in compliance with this specification, the CO should:
- Request written documentation of the contractor’s efforts to recruit applicants for training and employment opportunities.
- Review documentation that the contractor provided timely notice to recruitment sources, including minority, women’s and community organizations, at least one month prior to acceptance of applications for apprenticeship or training opportunities. The CO should also verify that appropriate sources have been contacted.
e. Employee Referrals. The regulations require the contractor to encourage employees, including present minority and female employees, to recruit others for employment openings.212 When reasonable to do so, as required by the regulations, the contractor must provide after-school, summer and vacation employment to minority and female youth both on the worksite and in other areas of its workforce. To evaluate the contractor’s compliance with this specification, the CO should:
f. Interview minority and female employees to determine whether the contractor has encouraged them to recruit other minority individuals and women to apply for employment.
g. Interview supervisors, minority and female employees to determine whether the contractor provides after-school, summer and vacation employment to minority and female youth.
h. Review personnel records to verify employment of minority and female youths in after-school, summer and vacation job opportunities.
207. Refer to 41 CFR Part 60-20, Discrimination on the Basis of Sex; 41 CFR Part 60-50, Religion/National Origin Guidelines; and 41 CFR 60-4.3(a) paragraph 7 steps b, c, d, i and j for more information.
208. 41 CFR 60-4.3(a) paragraph 7 step c, 60-1.12(c), and 60-3.15A.
209. See Item III.A.2. of the Construction SCER.
210. 41 CFR 60- 4.3(a) paragraph 7, step d. See Item III.A.3. of the Construction SCER.
211. 41 CFR 60-4.3(a) paragraph 7, step i.
212. 41 CFR 60-4.3(a) paragraph 7, step j.
The contractor shall develop on-the-job training opportunities and participate in training programs that are relevant to the contractor’s employment needs and are intended to upgrade the skills of its workers. These programs and opportunities must expressly include minorities and women.213 Examples of possible programs and opportunities include apprenticeships and trainee programs relevant to the contractor’s employment needs, especially those programs the U.S. Department of Labor funded or approved.214
To evaluate the contractor’s compliance with this specification, COs must:
- Determine whether the contractor has developed and conducted any training programs and, if so, whether it has provided notice of these programs to its recruitment sources. Obtain copies of any letters informing recruitment sources or schools of training programs, including those to minority and women sources. Get the names of applicants that the contractor referred to the programs. Determine whether the contractor has employed and trained anyone below the journey level. If it has, describe what was done.
- Determine which trades are covered by formal apprenticeship programs (typically found in projects utilizing union labor) or other types of formal training programs not associated with trade unions. When either type of program is in place, a CO must determine the participation rate of minorities and women.
- When there are no formal programs for a particular trade, determine what, if anything, the contractor has done to provide on-the-job training, and the extent to which that training was made available to minorities and women.
- If the contractor provides on-the-job training, determine whether minorities and women have equal access to training in all trades. Determine whether minorities and women are performing all aspects of their trade or if the contractor is repeatedly assigning them to the same task.
- Determine whether the contractor has records of cash contributions, equipment supplied or contractor personnel provided as instructors for Office of Apprenticeship approved, or U.S. Department of Labor funded, or other training programs.
- Determine whether the contractor has records of specific hiring and training of workers from such programs. The CO should also determine the results of the contractor’s efforts (e.g., number of workers trained identified by race, ethnicity and sex, hours worked, hours trained, relative compensation, trade) and record the results in the report.
213. 41 CFR 60-4.3(a) paragraph 7, step e.
214. See Item III.B.1. of the Construction SCER. Refer to 41 CFR Part 60-20, 41 CFR 68-4.3(a) paragraph 7, step e and Part III.B of the Construction SCER.
This subsection draws from 41 CFR Part 60-20; 41 CFR Part 60-50; 41 CFR 60-4.3(a) paragraph 7 steps g, h, l and p; and Part III.C of the Construction SCER. It covers five areas:
- Development of and dissemination of EEO policy;
- Review of EEO policy;
- External dissemination of EEO policy;
- Promotion policy; and
- Supervisory performance.
a. Development and Dissemination of Policy. The contractor shall develop and disseminate its EEO policy by providing notice of its policy to unions and training programs and by requesting their help in meeting its EEO obligations. The contractor shall also include its EEO policy in any policy manual and collective bargaining agreement and publicize it in the company newspaper or annual report, if any. The contractor shall also specifically review the policy with all employees at least once each year and post it on bulletin boards accessible to all employees and applicants at each location where construction work is performed.215
To evaluate the contractor’s compliance with this specification, COs must determine whether the EEO policy contains at least the following items:
- A statement that the contractor will not discriminate against employees and applicants for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin, and that it will take affirmative action to ensure that employees and applicants for employment will be employed and treated during employment, without regard to race, color, religion, sex, sexual orientation, gender identity or national origin;
- The name, telephone number and means of access to the contractor’s EEO Officer;
- An assurance that this policy will be followed in all personnel actions; and
- The signature of the CEO and date.
COs must also determine whether the EEO policy is posted in conspicuous places available to employees and applicants. Several places may be appropriate for posting the EEO policy and some examples include company offices, project sites and project trailers, if applicable.216
In addition to determining whether the EEO policy is posted, the CO will determine if the Pay Transparency Nondiscrimination Provision is posted physically or electronically for employees and applicants and incorporated into employee handbooks and manuals.217
Interviews of employees are important for determining if the contractor reviewed EEO policy at least annually with all employees and personnel responsible for hiring, assignments and other personnel actions. Other actions COs must take to evaluate the contractor’s compliance include:
- Determining whether unions, where applicable, and training programs have been notified and provided with a copy of the EEO policy. Obtain copies of correspondence, or other documentation of such notification; and
- Reviewing as applicable, policy manuals, collective bargaining agreements, company newspapers and/or annual reports for inclusion of the contractor’s EEO policy.
b. Review of Policy. The contractor shall review, at least annually, the company’s EEO policy and affirmative action obligations with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions, including specific review of these items with all on-site supervisory personnel prior to the initiation of work at any job site. The contractor must maintain a written record of the time and place of these meetings, people attending, subject matter discussed and disposition of the subject matter.218 Disposition of the subject matter may include any further action to be taken by attendees and participants. In evaluating the contractor’s compliance with this specification, COs should:
- Substantiate through examination of meeting notes or other such documents that the contractor has conducted, at least annually, a review of the contractor’s EEO policy and affirmative action obligations with all employees having any responsibility for hiring, job assignment, layoff, termination or other personnel decisions, including the transferring of employees to different job sites;
- Identify each job site at which the contractor has initiated work within the 12-month period prior to the start of the compliance review. Verify the date prior to the commencement of work at each such job site on which the contractor met with on-site supervisory personnel to discuss the contractor’s EEO policy and affirmative action obligations; and
- Review the actions taken by the contractor to resolve any problems identified.
c. External Dissemination of Policy. The contractor shall disseminate its EEO policy externally by including it in any advertising in the media, including media directed at minorities and women. In addition, the contractor shall provide written notification to, and shall discuss its EEO policy with, other contractors and subcontractors with which it does or anticipates doing business.219 In evaluating the contractor’s compliance with this specification, the CO should:
- Review copies of advertisements to determine whether the contractor included its commitment to its EEO policy (e.g., the EEO tag line as described in Chapter 2, 2M00(a)) and whether advertisements appeared in media announcements that reach all demographic groups in the recruiting area;
- Determine whether the contractor’s written notification to other contractors and subcontractors with which it does or anticipates doing business is accurate and timely (at least at the start of each major contract); and
- Review and verify documentation such as telephone logs, file notes, etc., on the contractor’s discussion(s) with other contractors and subcontractors to determine whether the contractor’s EEO policy was discussed.
d. Promotion Policy. At least annually, the contractor shall inventory and evaluate all current minority and women employees for promotional opportunities.220 The contractor shall encourage these employees to seek or to prepare for promotional opportunities through appropriate training.221 To evaluate the contractor’s compliance with this specification, COs must:
- Review the contractor’s policies and personnel procedures regarding upgrading and promotion; determine how first-line and other supervisors are selected and how collective bargaining agreements impact company policies;
- Review all promotions and the employees whom the contractor could have or should have considered;
- Obtain documentation of the contractor’s annual inventory and evaluation of all employees for promotional opportunities; and
- Verify through interviews and a review of documentation that the contractor encouraged all employees, including minorities and women, to seek or prepare for promotional opportunities through appropriate training.
e. Supervisory Performance. The contractor shall conduct a review, at least annually, of all supervisors’ adherence to and performance under its EEO policies and affirmative action obligations.222 To evaluate the contractor’s compliance with this specification, the CO should review letters, reports, performance evaluations, EEO training courses and materials and minutes of meetings. Interviews of supervisory personnel should be conducted.
215. See Item III.C.l. of the Construction SCER.
216. 41 CFR 60-1.4(a) paragraph 1; 41 CFR 60-1.4(b) paragraph 1.
217. 41 CFR 60-1.35(c); see, 41 CFR 60-1.4(a) paragraph 3 and 41 CFR 60-1.4(b) paragraph 3.
218. See Item III.C.2., of the Construction SCER.
219. 41 CFR 60-4.3(a)7h and Construction SCER Item See Item III.C.3..
220. 41 CFR 60-4.3(a) paragraph 7, step l and Construction SCER Item III.C.4.
222. 41 CFR 60-4.3(a) paragraph 7, step p. and Construction SCER Item III.C.5.
The CO should consider four areas during an evaluation of personnel operations: work environment, validation, effects of personnel practices and nonsegregation of facilities and activities.223 This subsection draws from 41 CFR 60- 4.3(a)7, a, k, m and n and Part III. D of the Construction SCER. Each is discussed in turn in this section.
a. Working Environment. The contractor must ensure and maintain a working environment free of harassment, intimidation and coercion at all sites and in all facilities at which the contractor’s employees are assigned to work.224 Harassment, intimidation and coercion can take many forms on the job site. These actions may be directed toward employees or applicants on any protected bases. They may consist of verbal, visual or written abuse, such as insults, graffiti, posters, suggestive comments and demands, racial slurs, leering or pressure for sexual activity. They may also include physical aggressiveness such as touching, pinching, patting and shoving, or the hiding or sabotaging of tools and equipment. Whatever the action, it can create a stressful working atmosphere which impairs job performance and work relationships and often results in the victim quitting the job. During the physical inspection of the contractor’s worksites, the CO should:
- Look for any physical evidence of intimidation, harassment, or coercion;
- Interview female and minority employees to determine whether there have been any incidents of harassment, intimidation or coercion;
- Determine whether such incidents were reported to the supervisor and if so, what action was taken to resolve the problem;
- Interview supervisory staff to determine whether they are aware of the contractor’s obligation under this specification;
- Review contractor files (minutes of meetings, memoranda, etc.) to determine whether the contractor has discussed this specification with supervisors; and
- Review discharges and terminations and, where possible, interview minorities and women recently terminated, to determine if harassment or intimidation was a factor in their leaving the job.
Where possible, the contractor will assign at least two women to each construction project.225 The contractor shall specifically ensure that all supervisory personnel are aware of, and carry out, its obligation to maintain such a working environment, with specific attention to minorities and women working at such sites or in such facilities.226
b. Validation. The contractor must validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3.227 COs should also refer to the discussion in Chapter 2 and to the “Questions and Answers to the Uniform Guidelines on Selection Procedures.”228Procedures for identifying adverse impact resulting from employee selection procedures are in Chapter 1 and Chapter 2.
c. Effect of Personnel Practices. Contractors must ensure that seniority practices, job classifications, work assignments, opportunities for overtime and other personnel practices do not have a discriminatory effect on minorities and women by monitoring all personnel and employment related activities to ensure that the specifications are being carried out.229 In evaluating the contractor’s compliance with this specification, COs will:
- Determine whether the contractor’s personnel policies and practices have a discriminatory effect; and
- Review personnel policies and practices such as transfers that create employment opportunities, seniority practices, job classifications, work assignments (e.g., minorities and women sent only to federally or state funded projects), layoff procedures, project locations, wage rates,230 overtime hours for discriminatory effects.
d. Nonsegregated Facilities and Activities. The contractor must ensure that all job sites, facilities and company activities are nonsegregated, except for separate or single user toilets and changing facilities where necessary to assure privacy between the sexes.231 In evaluating the contractor’s compliance, during the worksite inspection, the CO should:
- Determine whether the contractor provides and maintains adequate toilet and changing facilities to ensure privacy between the sexes; and
- Interview management and employees to determine whether announcements of company social/recreational activities have been posted and are made available to all employees.
223. Refer to 41 CFR Part 60-20; 41 CFR Part 60-50; 41 CFR 60-4.3(a) paragraph 7, steps a, k, m and n; and Part 1II.D of the Construction SCER for more information.
224. 41 CFR 60-4.3(a) paragraph 7, step a, if unlawful harassment is identified, it is a violation of the equal opportunity clauses found at 41 CFR 60-1.4(a) and 41 CFR 60-1.4(b), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a).
225. 41 CFR 60-4.3(a) paragraph 7 step a.
226. See Item III.D.l., of the Construction SCER.
227. See Item III.D.2 of the Construction SCER. Under 41 CFR 60-3.15, contractors with 100 or fewer employees are not required to make adverse impact determinations or maintain validity evidence.
228. See 44 FR 11996, 12009 (Mar. 2, 1979) supplemented by 45 FR 29350 (May 2, 1980).
229. 41 CFR 60-4.3(a)7.m. See Item III.D.3. of the Construction SCER.
230. COs are reminded that wage rates may be specified in Collective Bargaining Agreements.
231. 41 CFR 60-4.3(a) paragraph 7, step n. See Item III.D.4. of the Construction SCER.
One element of a good faith commitment to equal employment opportunity is the use of small disadvantaged businesses or disadvantaged business enterprises as subcontractors.232 These efforts must be documented. This subsection draws from 41 CFR 60-4.3(a) paragraph 7, step o and Part III.E of the Construction SCER; COs should refer to these provisions for more information. Records of all solicitations of offers for subcontracts from construction contractors and suppliers that are small disadvantaged businesses or business enterprises, including circulations of solicitations to minority and women’s contractor associations, must be maintained and produced upon request.233 In assessing the contractor’s efforts in this regard, the CO should:
- Determine whether there are solicitations to small disadvantaged businesses or disadvantaged business enterprises, and minority and female contractor associations;
- Verify that the solicitations to small disadvantaged businesses or disadvantaged business enterprises are made on the same basis as those to larger contractors.
232. 41 CFR 60-4.3(a) paragraph 7, step o. Regulations in place as of the time of the publication of this version of the FCCM refer to solicitation of offers from minority and female construction contractors and suppliers. Affirmative action programs in federal procurement are, however, no longer reserved for minority and women-owned businesses. The Small Business Administration and the Department of Transportation procurement programs are for small disadvantaged business disadvantaged business enterprises, including minority and women-owned businesses. Accordingly, the terms “small disadvantaged business” and “disadvantaged business enterprises” are used in this section.
233. Both 41 CFR 60-4.3(a)7.o and Part III.E of the Construction SCER provide related information.