iOn April 28, 2016, the U.S. Office of Management and Budget (“OMB”) approved the Department of Labor’s revised directive regarding Functional Affirmative Action Programs (“FAAP”). The revised directive amends the procedures for applying for a FAAP and clarifies the obligations that apply to contractors with approved FAAP Agreements. The revised directive replaces the prior directive which was issued on December 12, 2012. There are several modifications worth noting in the revised directive, each of which is discussed below.
Section 503 and VEVRAA Reporting Requirements
The revised directive addresses the new regulations regarding Individuals with Disabilities (“IWD”) and protected veterans. Pursuant to the revised directive, contractors with approved FAAP Agreements must comply with the affirmative action requirements found in Section 503 of the Rehabilitation Act (as amended) and the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”).
Document Submission Formatting Requirements
The revised directive requires FAAP participants to provide information to the OFCCP regarding the format(s) in which they maintain records and documents. Further, the revised directive requires FAAP participants to provide documents relating to the FAAP in the format the information is maintained by the contractor. If information is maintained in multiple formats, the OFCCP can choose the production format. This is likely aimed at shifting toward electronic production of information to the OFCCP.
Mandatory Compliance Evaluations
The revised directive now specifically states that any contractor with a FAAP will undergo at least one compliance evaluation during the term of the FAAP Agreement. Although this has been the practice for quite some time, it is expressly stated in the revised directive.
Revised Application Process
The revised directive modifies the application process for entering into a FAAP Agreement with the OFCCP. Under the 2012 Directive, contractors submitted a written request to the OFCCP, participated in a conference with the OFCCP, and then after the exchange of additional information, the OFCCP would approve or deny the FAAP. Under the revised directive, the approach is more streamlined, removing the requirement for a formal conference.
Additionally, the revised directive seemingly removes one of the prohibitions from the 2012 Directive. Under the 2012 Directive, a contractor could not apply for a FAAP if a compliance evaluation was ongoing or if the contractor had been notified that a compliance evaluation was going to be conducted. The revised directive removes this explicit prohibition.
Certification Process
The revised directive adds a new certification process for FAAP participants. This process seems to replace the renewal requirement found in the 2012 Directive. Under the revised directive, every three years, a contractor must certify that there have been no changed circumstances in the business that impact the FAAP Agreement(s). The revised directive details the requirements of this certification process and the evidence that must accompany it. Contractors must start the re-certification process at least 120 days prior to the expiration of their existing FAAP Agreement.
If there have been changes in the functional units, the contractor will be required to explain those changes in writing to the OFCCP. The OFCCP will then make a determination as to whether the changes impact the contractor’s qualification to participate in the FAAP process.
