Seyfarth Synopsis: The Office of Federal Contract Compliance Programs has released its long anticipated updated Technical Assistance Guide for Federal Construction Contractors and Subcontractors. The Guide provides an overview of the OFCCP’s mission and the laws and principles that the agency enforces. The Guide also outlines the non-discrimination, affirmative action and recordkeeping obligations that come with being a federal construction contractor or subcontractor and provides direction on how to comply with those requirements.

The Office of Federal Contract Compliance Programs (“OFCCP”), the arm of the US Department of Labor charged with enforcing equal employment opportunity and affirmative action obligations applicable to government contractors, recently published an updated Technical Assistance Guide for Construction Contractors (the “Guide”) in an effort to provide further guidance to federal construction contractors and subcontractors on how to comply with federal laws and regulations related to non-discrimination and affirmative action. Although the Guide does not establish any new laws or regulations, it serves as a “valuable self-assessment tool for contractors to review the practices they have in place to eliminate discrimination and achieve their equal employment opportunity goals.”

Background on the OFCCP

The OFCCP enforces three laws that apply to federal government contractors and subcontractors: Executive Order 11246, as amended (“EO 11246”); Section 503 of the Rehabilitation Act of 1973, as amended (“Section 503”); and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. § 4212 (“VEVRAA”). Under EO 11246, construction companies that hold direct federal or federally assisted construction contracts valued at $10,000 or more are required to undertake affirmative action and refrain from discriminating on the basis of race, color, sex, sexual orientation, gender identity, religion, and national origin. Similar affirmative action and non-discrimination obligations with respect to individuals with disabilities and protected veterans apply to direct construction contracts valued at $15,000 under Section 503 and $150,000 under VEVRAA. In addition to these baseline affirmative action and non-discrimination obligations, companies with a direct construction contract in excess of $50,000 are required to prepare written affirmative action plans covering individuals with disabilities. The company must also prepare a written affirmative action plan covering protected veterans if it holds a direct construction contract that exceeds $150,000. The OFCCP monitors compliance with these EEO laws through compliance evaluations, during which a compliance officer examines the contractor’s affirmative action efforts and employment practices.

The Contents of the Guide

The Guide, which is intended as a high level overview of compliance obligations applicable to construction contractors and subcontractors, provides a number of best practices and addresses key objectives such as:

  1. understanding the legal obligations under the laws enforced by the OFCCP;
  2. compliance with federal EEO laws, including recordkeeping requirements and participation goals for women and minorities;
  3. implementing the Sixteen Affirmative Action Steps;
  4. developing written affirmative action programs for individuals with disabilities and protected veterans; and
  5. preparing for an OFCCP compliance evaluation.

The Guide also includes a number of appendices to help contractors understand and comply with these obligations.

What Does This Mean for Construction Contractors?

Private sector companies venturing into the federal government contracts arena need to be mindful of the affirmative action and EEO requirements enforced by the OFCCP. Additionally, because many of these obligations apply not just to contracts directly with the federal government but also those projects where the federal government is providing assistance to state and local agencies, it is essential that companies fully understand all compliance requirements when bidding on a project. Failure to comply with these affirmative action and non-discrimination obligations may lead to technical violations, monetary penalties, and, in some circumstances, cancellation of federal contracts or debarment from future contracts with the federal government.