Q&A on Affirmative Action Plans for Federal Contractors

Federal contractors have an obligation to create affirmative action plans (AAPs) with the goal of ensuring that both disabled individuals and protected veterans are appropriately represented in their workforce. The regulations that dictate this – Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans Rehabilitation Assistance Act (VEVRAA) – are changing in the coming year, and federal contractors understandably have a lot of questions about what this means in practical terms.

For example, what constitutes an 'applicant' for the purposes of tracking applicant information for affirmative action plans? Do we count all employees or only full-time employees when assessing our plans? How many AAPs do we need?

David S. Fortney outlined the answers to these questions and more in a recent BLR webinar. Read on for his replies.

Q. What constitutes an 'applicant' for the purposes of tracking applicant information for affirmative action plans? We have an online hiring process – when does someone registering interest online become an applicant for AAP purposes?

A. This is a good question. It is very important because often, someone will simply register on your site that they're interested in working for your company, and they may even have said they want a specific job. But what if you get 1,000 people who apply in this way—do you have to treat all of them as applicants? The answer is no. Here are the requirements:

1) They have to apply for the job specifically in the manner that you've prescribed in the posting.

2) They have to be one of the applicants that you are considering. This is key for circumstances where you have far more applicants than you would ever consider reviewing in depth. However you determine which group will be reviewed (such as the first applicants up to a max of 20, for example), that group then gets further assessed to see if they have met the basic qualifications. Anyone that has not met the qualifications also is not considered for these purposes.

For example, if someone in the first 20 applicants does not meet your stated job criteria outright, they are no longer in this group. Finally, anyone that withdraws from the process is also not considered an applicant, such as someone who never returns your calls for an interview. Those left at that point are considered applicants for the purposes of collecting data for affirmative action plans.

Q. For AAPs and for the purposes of following 503 and VEVRAA, do we count only our full-time employees or all of them?

A. The labor department talks about employees and have made clear that they envision a very robust definition—they take a broader view than the EEOC. They will consider all employees: temporary, short-term, project employees, anyone who has W-2 status will be part of these obligations in their eyes. In fact, the labor department now asks for 1099 individuals when they are during audits as well—they may challenge whether those persons are properly classified as contractors, and instead say they should have been employees.

Q. On the recommended self-identification form for applicants to indicate whether they are disabled or a protected veteran, it seems to have yes/no response options. Will we be allowed to let the applicant or employee skip the new questions? This is especially relevant for online forms that can flag when a question is mandatory.

A. Likely the answer is yes we will be able to allow them to skip questions. The reason I hesitate is because the 503 form has not yet been finalized and published. As such, we don't yet know what restrictions the labor department might impose on contractors in using that form. I think, however, at the end of the day it's a voluntary form—so there will probably need to be a way for people to opt to not answer individual questions.

Q. Is a separate AAP required for 503, VEVRAA, and Executive Order 11246?

A. Yes. You will have 3 AAPs. That is what is required today and is still required under the new changes to these regulations.

Q. How would we determine the mental requirements for a job (as required to be assessed under the new AAP guidance)?

A. That's a question we all want to know the answer to! Most jobs do have mental qualifications, such as the ability to concentrate, ability to analyze, etc. It often gets rolled into the other parts of the job description, but really what the new regulations are suggesting is that we break out and be a little more attentive to what the mental requirements are.

For more information on the Section 503 and VEVRAA changes, order the webinar recording of "OFCCP Final Rules for Federal Contractors: New Affirmative Action and Equal Opportunity Obligations Explained." To register for a future webinar, visit

Attorney David S. Fortney is a co-founder of Fortney & Scott, LLC. Mr. Fortney regularly advises and represents clients facing audits by OFCCP, including OFCCP's compensation audits, desk audits, on-site reviews, audits of Functional Affirmative Action Programs, and pre-award compliance evaluations.

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