Construction Contractors and the New Affirmative Action Regulations

Melinda Saunders, Specialized Legal Services

In 2011, the Office of Federal Contract Compliance Programs (OFCCP) proposed new affirmative action regulations for protected veterans and disabled individuals. These regulations go into effect March 24, 2014. One of the most significant new requirements is that government contractors, including construction contractors, must implement a seven percent utilization of individuals with disabilities in each job group.

Contractors from the construction industry sent several requests asking the OFCCP to create an exemption from this utilization goal for physically demanding and safety-sensitive jobs. The OFCCP responded that the requests were based on the flawed notion that “individuals with disabilities as a group are incapable of working in these jobs.” The OFCCP said it would not “construct an avenue to permit contractors to avoid hiring individuals with disabilities from certain jobs.”

Therefore, as of March 24, 2014, construction contractors that employ 50 or more employees and have a government contract or subcontract of $50,000 or more must create written affirmative action plans for disabled individuals and must also begin collecting and analyzing data on disabled individuals.

The requirement for construction contractors to collect and analyze data is a marked shift from the agency’s previous stance. In its 2009 Technical Assistance Guide for Federal Construction Contractors, the OFCCP acknowledged that the “fluid and temporary nature of the construction workforce” does not lend itself to extensive data collection, data evaluation, or written affirmative action plans. Nevertheless, beginning March 24, 2014, construction contractors will be required to collect extensive data and create written affirmative action plans.

Although supply and service contractors have dealt with data collection and statistical analyses for race and gender for decades, construction contractors must educate themselves about data collection, utilization goals, hiring benchmarks, impact-ratio analyses, and the formation of job groups. The new requirement to solicit disability information at three distinct stages of the employment process also poses challenges to construction contractors who often accept walk-in applicants and extend immediate job offers.

We will be offering training specifically designed to help construction contractors comply with these requirements in April 2014. In the meantime, please contact our contact Affirmative Action Planning Services at 800.884.1328 or aaps@msec.org with your questions.