In a time when companies are striving for transparency with employees, shareholders and the public, the question inevitably comes up about the sharing of an Affirmative Action Plan (AAP). While there are some dissemination obligations of an Affirmative Action Plan under Executive Order 11246, federal contractors should also make sure that confidential company information is properly protected.
Federal contractors who prepare an AAP do have obligations to share program results and effectiveness as outlined in the regulations (41 CFR 60-2.17: Additional required elements of affirmative action programs). The results should be shared with all levels of management and top management should be advised of program effectiveness and recommendations given to improve unsatisfactory performance. This is an important step in the implementation and monitoring of the affirmative action plan.
Additionally, Federal contractors who complete an AAP under Section 503 and VEVRAA are required to make portions of the plan available for viewing by employees or applicants. [41 CFR 60-741.41 (Section 503); 41 CFR 60-300.41 (VEVRAA): Availability of affirmative action program]. The full AAP, minus the required data metrics, should be made available to employees and applicants for employment upon request. The process for requesting a viewing, including the contact’s name and the hours the AAP is available for viewing should be included in your company’s Affirmative Action/Equal Employment Policy Statement. Should an establishment be selected for a compliance review with the OFCCP, the AAP under Executive Order 11246, Section 503, and VEVRAA will be required to be submitted for review in additional to other items listed in the scheduling letter.
Beyond the regulatory requirements for dissemination, it is not advised to publish or make available your entire AAP without a compelling reason to do so. This could potentially open the company to liability based on the results. Reports and numeric results can be misinterpreted if allowed to be separated from the narrative explanations of good faith efforts and the identification of problem areas. Even the best planned communication can go astray when sharing otherwise confidential information that the company does not otherwise have an obligation to share.
Federal contractors should protect their affirmative action plans and carefully consider who needs to have access to the reports and results.
Author’s Note: As of this writing, the Office of Federal Contract Compliance Programs has proposed a mechanism by which federal contractors will certify and possibly submit their annual affirmative action plan to the agency. See Berkshire’s blog for more information. While this would be in addition to other dissemination requirements, we do not anticipate this change would impact these recommendations.