HR Management & Compliance

Affirmative Action: New Record Retention And Audit Rules For Federal Contractors

Despite the passage of California’s Proposition 209, affirmative action is alive and well if you sell goods or services to the federal government. In fact, the Office of Contract Compliance Programs (OFCCP), which enforces the affirmative action rules that cover government contractors, recently revised its regulations. Here are the highlights.

Record Retention

Companies that have contracts with the federal government (there are separate rules for construction contractors) must now keep all employment records, including those maintained on computer, for at least two years from the date they were made or from the date of the personnel action they concern. Contractors with fewer than 150 employees, or that have government contracts worth less than $150,000, have to keep the records for only one year. Because of other federal and state laws, however, it’s still a good idea to retain employment records for at least three years.

There’s a new laundry list of records you must save. It includes documents relating to hiring, assignment, promotion, demotion, transfer, layoff, compensation, selection for training, requests for reasonable accommodation, results of physical exams, job advertisements and postings, applications and resumes, and interview notes. Note that, because of the federal Paperwork Reduction Act, these new record keeping rules must be cleared by the Office of Management and Budget before they take effect. Approval is expected shortly.

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More Flexible Compliance Reviews

Previously, OFCCP compliance reviews were required to be a comprehensive audit of each aspect of your employment practices. But now, the regulations spell out that the OFCCP can tailor the review to fit the situation by using any one or a combination of the following procedures: an on-site records compliance check; a focused on-site review of one or more of your employment practices; an off-site review of records; or the traditional comprehensive compliance audit.

Maintaining Confidentiality

There are two confidentiality points to be aware of under the regulations. First, it’s now clear that the auditors are entitled to access relevant information on your computers. This may mean you’ll have to develop a system to protect other sensitive data that’s not needed for the agency’s review.

Second, the new rules provide some safeguards when the OFCCP takes your records off-site. Now you can code information to preserve confidentiality, and the agency says it will limit access to the data and won’t copy it. Also, to prevent the loss of your documents and data, you should only permit copies-not originals-to be taken off-site whenever possible.

Other Changes

Other new OFCCP rules include:

  • Employers bidding for contracts of less than $10 million are exempt from a pre-award affirmative action compliance review.
  • The prior requirement that contractors certify to the OFCCP that their facilities are not segregated has been scrapped.

Where To Get More Information

For further details about your obligations, or for a copy of the new rules and an “Overview” and “Questions and Answers” about the new regulations, contact the OFCCP in San Francisco at (415) 975-4720 or in Los Angeles at (310) 235-6800.