Many federal contractors and subcontractors use a calendar year for their written affirmative action plans (AAP's). That means their AAP's are typically being reviewed and revised shortly after January 1. Working with companies over the years to help them develop and revise AAP's and advising companies during OFCCP audits, we have come to appreciate the challenges for contractors in the process. Here are a few tips to keep in mind as you revise your AAP's:
- It's Not Just "Boilerplate"
Too often, contractors revising AAP's simply "run the numbers" for the required statistical analysis and then put the plan back on the shelf. The narrative portions of the plan, sometimes referred to as "boilerplate," which include the contractor's good faith efforts to achieve goals and action plans for the coming year, are often given little or no attention. In fact, in an audit by the OFCCP, the agency is often more focused on these narrative portions of the plan than on the statistical analysis. Time should be taken to carefully review the narrative portions, especially the action plans. The narrative should reflect what has worked and what has not worked in good faith affirmative action efforts in the previous year. Where you have had success, make sure to mention that. Where efforts did not work as well as anticipated, draft the narrative to show the good faith efforts that were made. Most important, draft action plans that are specific, rather than general commitments.
- Don't Forget the 12-Month Review
Contractors often put their primary focus on the required availability analysis which looks at the workforce as it exists at the beginning of the plan year. Don't forget that you are also required to analyze the personnel activity (hires, promotions, terminations, and compensation) for the 12-month period preceding the beginning of the plan year. The written AAP should include a brief analysis of that activity, making sure to reflect positive results and where results have not been positive, to reflect good faith efforts that have been made.
- Don't Forget The AAP's for Protected Veterans and Disabled Persons
Too often, the AAP's for disabled persons and protected veterans are given very little attention in the annual review because they do not require any specific statistical analysis. However, note that the OFCCP has now proposed a rule that would require a statistical goal for disabled persons. Even though current regulations do not require a statistical analysis for veterans or disabled persons, the OFCCP has clearly shifted greater emphasis in compliance reviews to the AAP's covering those groups. Each annual revision of the AAP should include a review and revision of the AAP's for covered veterans and disabled persons. Include a discussion of any particular successes during the previous years and, to the extent possible, be specific in describing affirmative efforts to be taken in the following year.
- Develop an AAP Calendar
When revising the narrative portions of your AAP's, be sure to calendar each specific commitment made, such as periodic reports to management, contacts to recruitment sources, etc. It is too often the case that the AAP is looked at only annually when it is revised, and the various commitments in the AAP for steps taken during the year are overlooked.
A carefully-prepared AAP can go a long way in an audit by the OFCCP. Making sure that the required statistical analysis is defensible and realistic is of key importance. But, the narrative portions of the AAP should be drafted carefully to reflect a genuine and realistic commitment to good faith efforts over the course of the following year. Doing that will reflect positively on the Company if the AAP is audited by the OFCCP. By contrast, if the OFCCP has the impression that the AAP is looked at only once a year when it is revised and the action plans and policies are not taken seriously, it will put your company in a poor light during an audit.