OFCCP Releases New Initiatives Providing Guidance on Affirmative Action Plan Compliance for Academic Institutions

This blog post was contributed by Suzanne Keys and Lynn Clements of Berkshire Associates.

Just in time for back-to-school, the Office of Federal Contract Compliance Programs (OFCCP) has released three new affirmative action plan (AAP)-related initiatives related to higher education institutions.

Multi-Building Establishments
The first initiative is a set of FAQs for organizations that have multi-building establishments that are campus-like in nature. The FAQs state that these types of organizations may have a single AAP or multiple AAPs, depending on a variety of factors. Contractors should consider the following when determining if their campus should have one or more AAPs:

• What is the function of the building, and how do the employees in the building interact with employees in other buildings?
• Are employees across different buildings part of the same organizational unit, such as department, division, section, branch, group, job family or project team?
• Are the hiring, compensation and other personnel decisions handled separately at each building, or are those functions consolidated across the entire contractor or across multiple buildings on one campus?
• Does each building handle its own recruitment, or is that function consolidated across multiple buildings?
• Do the buildings recruit from the same labor market or recruiting area?
• To what extent are other HR and equal employment opportunity compliance functions operationally distinct for each building or group of buildings?
• To what extent do certain employees perform work functions across various buildings?

OFCCP’s suggested approach is to prepare a separate plan in situations where the buildings operate independently but prepare a single AAP when the buildings are intertwined. If the contractor determines it is appropriate to combine buildings into a single AAP, the OFCCP indicates that the contractor should annotate all of its buildings in the organizational profile section of the AAP, which is not something that academic institutions typically have done when preparing a campus-wide AAP.

Student Workers
The second initiative is Directive 2019-05, providing colleges and universities guidance on whether student workers should be included in AAPs. The directive states, “OFCCP will not cite violations for excluding student workers from AAPs or personnel activity data submissions in compliance evaluations. OFCCP will, however, continue to accept and consider complaints filed by and on behalf of student workers at these educational institutions, and its evaluations of the employee status of any such student workers will be guided by the Darden factors and other legal principles.”

HBCUs
The third initiative is a new web page developed as part of the White House Initiative on Historically Black Colleges and Universities. The web page contains resources including links to job boards and examples of diversity and inclusion programs.

What do these new announcements mean for the technical assistance manual (TAM) for colleges and universities that OFCCP has been working on for almost a year? Drafts of the TAM were reviewed by a small number of stakeholders, including CUPA-HR, earlier this year. The agency had originally stated that it would publish the TAM this summer, but the publication has been delayed, presumably to address some of the comments and suggestions received from stakeholders.

The announcement of some policy decisions may be a signal that OFCCP is getting closer to releasing a broader document that outlines the affirmative action obligations of academic institutions.