OFCCP’s regulations implementing Executive Order 11246 require that each employee of a covered federal contractor or subcontractor be included in an affirmative action program (AAP). This requirement includes employees who work remotely or telework full-time, part-time, on an ad hoc basis or under any other arrangement. The following FAQs are provided to assist contractors in understanding how to organize and annotate such employees.
- Does OFCCP have any regulations that address which AAP(s) should include remote and telework employees?
- How would contractors incorporate remote or telework employees into their establishment-based AAPs?
- If a contractor includes the majority of its remote employees in its headquarters AAP, should the contractor handle a pandemic-related increase in the number of remote employees differently, such as having a separate ‘set’ of job groups for the employees working remotely due to the pandemic?
- Could the contractor create a separate AAP for just the remote employees or separate AAPs for the remote employees grouped by states or regions?
- If locations are closed temporarily due to COVID and expected to reopen after relevant Shelter-in-Place orders are lifted, does the 50-employee threshold still apply when determining if the location should have its own AAP, even though it was physically empty on the AAP effective date?
- Where in the AAP does a contractor annotate a remote or telework employee’s location?
- What if a remote or telework employee is covered by a functional affirmative action program?
Does OFCCP have any regulations that address which AAP(s) should include remote and telework employees?
OFCCP’s regulations do not specifically address remote and telework employees. However, OFCCP’s regulations describe the options a contractor may have regarding which AAP(s) should include its remote and telework employees. If a remote or telework employee could be placed in more than one AAP under OFCCP’s regulations, the contractor may choose the AAP in which to include that individual. For more information, please see 41 CFR 60-2.1(d)(1) (addressing employees who work at establishments other than that of the management to whom they report); 41 CFR 60-2.1(d)(2) (addressing employees who work at an establishment where the contractor employs fewer than 50 employees); and 41 CFR 60-2.1(d)(3) (addressing employees for whom selection decisions are made at a higher level establishment within the organization).
How would contractors incorporate remote or telework employees into their establishment-based AAPs?
A covered contractor with only one establishment would include all of its employees, including any remote or telework employees, in the AAP for that establishment. For a covered contractor with multiple establishments, OFCCP provides the below guidelines on the AAP(s) in which remote or telework employees may be included.
- Include a remote or telework employee in the AAP that covers the management to whom they report. For example, an employee who works remotely out of an office in Washington, D.C., for a manager in New York, New York, could be included in the New York AAP.
- Include a remote or telework employee in the AAP of the establishment where his or her selection decision was made. For example, an employee who was selected by corporate headquarters in Seattle, Washington, to run an office in Portland, Oregon, could be included in the Seattle AAP.
- Include a remote or telework employee in the AAP that covers the location of the personnel function that supports the employee. For example, if a manager who works from home in Columbus, Ohio, has four employees who work from home in 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.
If a contractor includes the majority of its remote employees in its headquarters AAP, should the contractor handle a pandemic-related increase in the number of remote employees differently, such as having a separate ‘set’ of job groups for the employees working remotely due to the pandemic?
Contractors have the option to include remote employees in the AAP (1) that covers the management to whom they report; (2) where their selection decision was made; or (3) that covers the location of the personnel function that supports the employee. If during the pandemic a contractor experiences an increase in the number of remote employees that need to be incorporated into its headquarters AAP, the contractor must include them in the job group with employees that have “similar content, wage rates, and opportunities.” See 41 CFR 60-2.12(b). Contractors must continue using these criteria when assigning newly remote employees into job groups, and should not treat this analysis any differently than the analysis for existing remote employees. The regulations do not permit placing employees that do not have “similar content, wage rates, and opportunities” into one job group simply because they all work remotely. As a reminder, the actual locations of remote and telework employees must be annotated – using their cities and states – in the organizational profile and job group analysis of the AAP in which they are included.
Could the contractor create a separate AAP for just the remote employees or separate AAPs for the remote employees grouped by states or regions?
Likely no. Contractors must create AAPs following the regulatory criteria outlined at 41 CFR 60-2.1(d), as discussed in the questions above. Grouping remote employees in a separate AAP, simply because they work remotely, and/or grouping them into separate AAPs by state or region does not clearly fall within the alternative AAP structures permitted by the regulations, in which contractors consider the management or functional structure to which the employee is subject. If an employee could be placed in more than one AAP under these regulations, the contractor may choose where to place them. Alternatively, 41 CFR 60-2.1(d)(4) provides for an AAP to be set up by function or business unit, referred to as a functional affirmative action program, or FAAP. See https://www.dol.gov/agencies/ofccp/faqs/faap.
If locations are closed temporarily due to COVID and expected to reopen after relevant Shelter-in-Place orders are lifted, does the 50-employee threshold still apply when determining if the location should have its own AAP, even though it was physically empty on the AAP effective date?
Under 41 CFR 60-1.40 and 60-2.1, a covered contractor or subcontractor with 50 or more employees must develop and maintain a written AAP for each of its establishments (subject to limited exceptions spelled out in 60-2.1(d)(2) and 60-2.1(d)(4)), and each of its employees must be included in an AAP.
Where in the AAP does a contractor annotate a remote or telework employee’s location?
The actual locations of remote and telework employees must be annotated in the organizational profile and job group analysis of the AAP in which they are included. For employees who work from home, the annotation should identify only the city and state (or country).
What if a remote or telework employee is covered by a functional affirmative action program?
A contractor may enter into an agreement with OFCCP to maintain one or more AAPs by functional or business unit. These AAPs are also known as functional AAPs, or FAAPs. A FAAP must include any remote or telework employees who work in the functional or business unit covered by the FAAP agreement. Learn more about FAAPs.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
Last updated on June 22, 2021