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(Continued from page 1)
In order to process your application for FAAP, it must be submitted to the Deputy Assistant Secretary for Federal Contract Compliance (DAS) at least 120 days before the expiration of your current corporate headquarters' AAP. To determine whether an FAAP is appropriate for your organization, the OFCCP will consider the following: how autonomously a functional or business unit operates; if it has its own managing official; if it is listed separately on organizational charts; and if it operates under separate cost centers. To facilitate this determination the OFCCP can require a meeting to discuss:
location of the facilities (or establishments) where the employees perform their duties;
how the company is organized within each functional or business unit (e.g., a discussion of the various divisions or departments within the corporate structure);
the reporting hierarchy within each such functional or business unit;
the total number of employees within the contractor's workforce;
the total number of employees within each functional or business unit and the identification of the managing official of each functional or business unit;
the total number of employees not covered by functional AAP(s) that are covered in establishment-based AAP(s);
a description of the personnel processes (including recruitment, hiring and promotion) as they apply to each unit; and
any other information the contractor believes would further assist OFCCP in understanding its corporate structure, procedures and need for a functional AAP(s).
discussions regarding job group construction and appropriate methodology for determining availability will also take place. D254 - 9(f)(i - vii)
Before requesting an FAAP, be sure that you
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have meticulously planned how you intend to organize it and have documented adequate justification for your decisions. Those involved in discussion should include management personnel involved in each functional or business unit, individuals responsible for personnel processes for each unit, and individuals who have affirmative action planning experience.
Permission to complete an FAAP expires five years after the date of approval; it can be terminated at any time with 90 days written notice; and you have a duty to immediately notify the DAS in writing of any significant changes to your organizational structure that alters the functions upon which the original FAAP was based. D254 - 6(d) Reorganizations, acquisitions, or a sale of portions of your organization could trigger a duty to notify DAS and place your FAAP in jeopardy.
Furthermore, an FAAP "may not contain provisions limiting access or the manner and means by which compliance evaluations will be initiated or conducted. Such issues are not negotiable." D254 - 6(g) You might be well-advised to wait and see how this key statement will be interpreted and enforced.
The OFCCP is not tipping its hand on how it intends to audit organizations using FAAPs. A Compliance Review of your FAAP could be completed at your corporate headquarters and a month later a review could be initiated at one of your other locations. It is not clear whether you could successfully argue against the new review based on the FAAP that was reviewed at headquarters. You could end up with a review of your FAAP with findings that are inconsistent with the corporate FAAP review.
It is equally uncertain whether Compliance Officers are legally required to accept an FAAP when auditing an establishment. It appears they could demand a plan covering only the employees at that location. In this case, your effort to include the employees at this establishment into an FAAP would be for naught and you would have to complete a separate plan. Hopefully, this illogical, but possible scenario will not become an issue at audits, but at this point there is no track re (Continued on page 3)
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