AAP Structures in Today’s World

As the new year starts and many AAPs are expiring, it’s a good time to review a fundamental aspect to creating 2021 AAPs: How to best organize the employees into plans?

Let’s start with what the regulations say:

41 CFR 60-2.1(b) defines that “Each nonconstruction contractor must develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees…”. Further, CFR 41 CFR 60-2.1(d) states “Contractors subject to the affirmative action program requirements must develop and maintain a written affirmative action program for each of their establishments. Each employee in the contractor’s workforce must be included in an affirmative action program. Each employee must be included in the affirmative action program of the establishment at which he or she works…”

Therefore, each of the physical locations and establishments where more than 50 employees work need to have their own AAP. Also, every single employee needs to be included in an AAP somewhere. See this blog for how employee is defined for the purposes of AAPs.

However, in today’s world where so many employees are working remotely, especially as the pandemic has caused employers to re-think working in a physical office, how to best incorporate employees who aren’t working at one of the organization’s physical establishments?

Since the regulations were written when the working environment looked much different, there is little guidance specifically for remote workers. However, the OFCCP has provided an FAQ page addressing remote and telework employees. It is also addressed in their recently released Supply and Service Technical Assistance Guide on page 16. This guidance includes three options for remote or telework employees:

• Include the employee in the AAP that covers the management to whom they report. For example, if an employee works remotely in Washington, DC, but their manager works in an establishment in New York, the employee could be included in the New York AAP.
• Include the employee in the AAP of the establishment where their selection decision was made. For example, if the employee was selected by corporate headquarters in St. Louis, MO even though they work at a small office in Minneapolis, they could be included in the St. Louis AAP.
• Include the employee in the AAP that covers the location of the personnel function that supports the employees. In this case, look up the reporting ladder for the supervisory establishment. The FAQs use the following example: “If a manager who works from home in Columbus, Ohio, has four employees who work from home various locations across Missouri and Ohio, and they are supported by a personnel function in Chicago, Illinois, the manager and employees could all be included in the Chicago AAP.”

These options are very similar to how the regulations address employees who work at establishments other than that of their manager (41 CFR 60-2.1(b)(1)), employees who work at establishments employing less than 50 employees (41 CFR 60-2.1(b)(2)), and employees for whom selection decisions are made at a higher level (41 CFR 60-2.1(b)(3)). Therefore, based on this guidance, it is important and helpful to know the manager and manager’s location for every employee.

Some of these options may overlap, but if an employee could be included in more than one establishment based on the options, the contractor may choose the AAP in which to include that individual. The employee should not be counted more than once, but they must be included in an AAP. Additionally, any employee included in the AAP who does not physically work in the establishment of the AAP needs to be annotated to identify the actual location of the employee.

If it makes more sense to analyze the workforce selection decisions and representation by function rather than physical establishment – if there are multiple functions operating out of the same establishment, each essentially functioning independently – consider Functional Affirmative Action Programs (FAAPs). In this type of AAP, employees are included in a plan based on their function or business unit, regardless of where they work geographically. To do this, contractors must apply for an agreement with the OFCCP explaining why it believes Functional AAPs would be appropriate. In 2019, the agency issued Directive 2013-01 Revision 2 establishing policies and procedures for requesting and maintaining FAAP agreements, as well as encouraging the use of this alternative. While the process for requesting a FAAP might seem more complicated than creating establishment-based AAPs, this might make more sense when analyzing the workforce for women, minority, protected veteran, and individuals with disabilities representation and selections. For more information about Functional AAPs, including the specific requirements for requesting the agreement, see the page on the OFCCP’s website.