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Affirmative Action: How Contractors Can Remain Compliant on Federal Construction Projects

Contractors and subcontractors working in the construction industry have a myriad of federal regulations that they must remain compliant with. Chief among these regulations are those put forth in Executive Order 11246. Signed by Lyndon B. Johnson on September 24, 1965, Executive Order 11246 established non-discriminatory practices that must be followed by federal contractors. While this order has since been amended, it remains a guideline that contractors must follow in order to continue working on federal projects and avoid the steep penalties that come with disregarding these regulations. 

In this article, a Florida construction lawyer with Cotney Construction Law will discuss how federal contractors can remain compliant with affirmative action regulations. Below, we discuss 16 steps for remaining compliant as well as the additional laws and regulations that pertain to disabled workers and veterans. For assistance with remaining compliant with these and all federal laws that apply to your business, contact the team of Florida construction lawyers from Cotney Construction Law. 

16 Steps to Compliance 

While these specifications are often referred to as “steps,” they are actually clauses found under 41 CFR 60-4. These steps apply to all contractors and subcontractors on federal or federally assisted construction projects valued at over $10,000. As stated, “The contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions.” 

Remember, your compliance doesn’t strictly hinge on your results but on your attempts to achieve the desired results. Discrimination can still arise even after every precaution is taken, but your company must make a good faith effort to accomplish these steps and avoid discriminatory practices. These steps are as follows: 

1. Foster A Harassment-Free Work Environment 

Your worksite must be free of “harassment, intimidation, and coercion.” These rules apply anywhere your employees are assigned, even if it’s off-site. Anyone in a supervisory position, including all foremen and superintendents, must be made aware of this requirement and their obligation to it. 

Special consideration must be given to minority and female workers. Of note, two or more women must be assigned to a construction project when possible. This will be a difficult step to accomplish. Women in construction make up less than 10 percent of the industry — closer to three percent if you’re only counting workers in the field. But this is a goal you must strive to achieve if you wish to remain compliant with these regulations. 

2. Notify Recruitment Sources

You must create and curate a list of minority and female recruitment sources. When employment opportunities become available, these recruitment sources and community organizations must be notified. Maintain a record of their responses; you never know when you may be audited by the Office of Federal Contract Compliance Program (OFCCP), the division of the U.S. Department of Labor that enforces these laws. 

3. Track Your Applicants 

Retain a file on minority and female applicants and referrals. This file must include each applicant’s name, address, and telephone number as well as what happened with regards to their hiring. If not hired, you must include the reason why and any additional actions taken. 

4. Notify the Director regarding Union Relationships 

Notify the” Director” when a union “has not referred to the Contractor a minority person 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 obligations.” Essentially, if a union stops you from remaining compliant with affirmative action regulations, contact the OFCCP or the U.S Department of Labor. 

5. Develop On-The-Job Training 

You must develop on-the-job training programs or participate in training programs that include minorities and women, especially those funded by the Department of Labor. You must send notifications as specified under these regulations. For assistance with the specifics of these regulations, consult a Florida construction attorney

6. Distribute Your Equal Employment Opportunity Policy Internally 

You must distribute your Equal Employment Opportunity (EEO) policy to unions and training programs and request their help in complying with this policy. This policy must be distributed via policy manual, collective bargaining agreement, company newspaper, annual report, bulletin boards, and other internal means. This policy must be reviewed at least once a year by minority and female employees. 

7. Review Your EEO Policy Annually. 

The EEO policy and your company’s affirmative action requirements must be reviewed by employees in management positions annually and prior to construction commencing. Essentially, if they are in charge of employment decisions, such as hiring and firing employees, they must be familiar with this policy. Like many of these steps, you must maintain a record of when and where these reviews take place. 

8. Distribute Your EEO Policy Externally 

Your EEO policy must also be distributed externally to news sources, especially those that cater specifically to minorities and women. You must also discuss and provide this EEO policy with contractors and subcontractors you work with or anticipate working with. 

9. Focus Your Recruitment Efforts 

Your recruitment efforts must be directed towards community organizations, schools, and recruitment and training organizations that include or pertain to minorities and women. Within one month of accepting applications for apprenticeships from a recruitment source, you must notify the above organizations of the available position and its requirements. 

10. Encourage Referrals 

As stipulated, “Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer and vacation employment to minority and female youth both on the site and in other areas of a contractor’s work force.” Always abide by the federal laws that pertain to teen workers on construction sites

11. Validate Tests

Validate all tests and selection requirements when required by law to do so. Again, consult one of our Florida construction attorneys to determine which laws apply to your business. 

12. Encourage Promotion Seeking 

At least once a year, evaluate all of your minority and female workers for promotions, and encourage them to seek and prepare for potential promotions. As we’ve covered previously, workers with varying backgrounds will always be more innovative than a less-diverse workforce. Your best thinkers and leaders may already be among your ranks. 

13. Review Seniority Practices

“Ensure that seniority practices, job classifications, work assignments, and other personnel practices, do not have a discriminatory effect.” Essentially, it isn’t enough to know that your own activities are non-discriminatory. Employer practices that are longstanding and commonplace within your company may actually be discriminatory, even those that are carried out by senior members of your company. 

14. Keep Areas and Activities Nonsegregated 

As mentioned, this order was signed in 1965. Times have changed, and abiding by this step shouldn’t be a problem for your company. All areas and company activities must be nonsegregated (with the exception of restrooms for men and women). 

15. Record Solicitations

Keep a record of “all solicitations of offers for subcontracts from minority and female construction contractors and suppliers.” This includes “circulation of solicitations to minority and female contractor associations and other business associations.” 

16. Review Your Supervisors Annually 

At least once a year, review your supervisors’ adherence to the regulations and rules stipulated in your EEO policy and by the affirmative action regulations. 

Additional Affirmative Action Requirements 

While this is an exhaustive list of your requirements under Executive Order 11246, it is not an end-all to the affirmative action regulations that apply to your business. In addition to making considerations for minority and female workers, you must also make considerations for disabled individuals and veterans. 

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 

The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) prohibits contractors and subcontractors on federal projects from discriminating against veterans. As stipulated by VEVRAA, you must “take affirmative action to recruit, hire, promote, and retain these veterans.” You can do this by establishing hiring benchmarks for veterans, collecting data regarding the hiring of veteran applicants, and inviting applicants to self-identify as veterans at any time during the recruitment process, among other requirements. 

The Rehabilitation Act of 1973

As stipulated by the Rehabilitation Act of 1973, you are prohibited from discriminating against individuals with disabilities. Like VEVRAA above, you must take affirmative action with regards to employing these individuals. Much of the requirements are identical to those above. In addition to collecting data, maintaining records, and inviting applicants to self-identify, you must apply a utilization goal of seven percent to each job group (or the entire workforce if there are less than 100 workers). 

Penalties for Failing to Abide by These Regulations 

As mentioned, the OFCCP enforces these regulations and may conduct an audit of your business to determine your level of compliance. The OFCCP can conduct both a desk and on-site audit. If your company is found to be operating unlawfully, your contract can be canceled and your company can be made ineligible for all future government contracts. Additionally, the OFCCP and Department of Justice can file suit against your company for noncompliance. Consult a Florida contractor lawyer if you are in need of employment discrimination defense. 

Partner With a Team of Construction Attorneys 

The regulations that pertain to federal contractors and subcontractors are extensive, to say the least. As an employer, it remains your responsibility to abide by the laws that seek to put an end to discrimination. This is an incredible undertaking, but not one that you need to face alone. 

At Cotney Construction Law, our team of Florida contractor lawyers is familiar with the laws that pertain to your business and those that pertain to all aspects of the construction industry. By focusing our efforts on helping industry professionals, we are capable of helping them not only remain compliant with these regulations but also defend their businesses in the event that they are audited by the OFCCP. 

Discrimination is an ugly thing that can arise despite positive actions of your company. For assistance establishing non-discriminatory practices, abiding by affirmative action regulations, and defending your company from legal threats, partner with a Florida construction attorney from Cotney Construction Law. 

If you would like to speak with one of our Florida construction attorneys, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.