OFCCP finally released the Technical Assistance Guide for Educational Institutions with federal contracts. Contractors in academia have been looking forward to this TAG addressing the unique challenges that educational institutions – universities, colleges, community and technical colleges – face in complying with the regulatory requirements. Such challenges include: whether student workers should be included in AAPs, who is considered an employee, employees with dual appointments, use of search committees and selection considerations for tenure and non-tenure track personnel, factors influencing compensation for faculty and non-instructional staff, and the complications presented by decentralized organizational structures, to name a few.OFCCP has acknowledged these nuances and deferred scheduling higher education institutions for compliance audits until after they have had an opportunity to address these questions and provide more compliance assistance with the publication of the TAG.
In years prior, there have been a number of audits focusing on higher education institutions, with some audits spanning several years. Many of these audits were taking a long time to resolve and when OFCCP Director Craig Leen took office, he expressed concern over the aging of these audits, and the amount of public resources that are being tied up in these audits.
What is a Technical Assistance Guide?
To help obtain compliance, OFCCP provides compliance assistance to explain the technical requirements associated with being compliant with federal contractor requirements as well as explain how to implement these technical requirements.
In addition to the Educational Institutions TAG, OFCCP has published several compliance assistance guides on its website and is in the process of revising the Technical Assistance Guide for Construction Contractors and Supply and Service Contractors.
Highlights of the Educational Institutions TAG
What I like about this TAG is its strong educational bent – it goes through all of the compliance requirements that apply to contractors under each of the three regulations OFCCP enforces and proceeds to discuss how this would apply to higher education institutions, how to work through the situations that are unique to higher education contractors, and what they might expect in a compliance evaluation. The TAG is thoughtful, informative, and instructive. With footnotes, callouts, references to the regulations, and illustrative examples, it serves as a good reference “bible” for compliance.
Affirmative Action Programs
The TAG provides guidance to universities that would help determine when it might be appropriate to consider having one AAP as opposed to multiple AAPs when it has multiple buildings or schools that individually may constitute an establishment. The TAG lists several factors for consideration, including whether recruitment and compensation decisions are handled separately across multiple buildings. This reaffirms previous guidance it has issued via an FAQ on AAPs for Campus-like Settings.
The TAG also directs contractors to use the Darden factors in determining who is an employee for the purpose of inclusion in an AAP but recognizes gray areas when it comes to student workers and reiterates its guidance in Directive 2019–05 that it will focus its time and attention on those whose primary relationship with the contractor is work-related.
One of the challenging tasks associated with educational institution AAPs is the formation of job groups. OFCCP offers suggestions and examples in the TAG for developing job groups for teaching staff and non-teaching staff. Instructional staff may be grouped within a specific discipline or department, within different schools, or across schools; while non-teaching staff may be grouped along IPED, EEO-6, or EEO-1 categories.
Recruitment Sources and Outreach
While the agency recognizes that some positions in higher education require specialized search, the TAG reaffirms the requirement to undertake outreach.
Institutions should be able to demonstrate good faith efforts to develop ongoing relationships with organizations that can refer qualified minority and female applicants to comply with Executive Order 11246, as well as undertake outreach and positive recruitment activities to recruit protected veterans and individuals with disabilities, to be compliant with VEVRAA and Sec. 503, respectively.
The TAG proceeds to provide examples of such recruitment activities, which includes outreach and relationship-building with state agencies and local organizations near the contractor’s establishment that deliver job training and employment placement services to minorities, women, IWDs, and veterans.
It also reiterates the need to undertake “action-oriented programs” to correct identified problem areas, including those found in outreach. It specifically states that these steps should go beyond utilizing the same procedures that produced inadequate results, and cite examples of best practices and techniques to increase the flow of diverse applicants.
What to Expect in Compliance Evaluations
A good portion of the TAG talks about what educational institutions might expect during a compliance evaluation, and explains how OFCCP might look at selection and hiring, promotions, terminations, and compensation, taking into consideration the unique context of higher educational institutions. The TAG shows an appreciation and understanding on OFCCP’s part of the differences in the way pay is structured across disciplines and fields of study, and ancillary pay beyond base salary that may be available through research, grants, and awards.
A recurring theme in the TAG is that the agency encourages contractors to annotate in their AAP the methodology the institution used and provide related information that would be relevant to the analyses, so OFCCP could take these into account during their review.
The TAG reiterates the requirement for record retention, inviting applicants to self-identify IWD and protected veteran status, and how to document compliance with the self-identification requirement.
Of note is a substantive section on reasonable accommodations, making a distinction between reasonable accommodations as nondiscrimination and reasonable accommodations as affirmative action. It discusses the different types of accommodations in the workplace, from those that may be needed during the job application process, to accommodations that enable a person with a disability to perform the essential functions of the job, and those that might help them enjoy the same benefits and privileges of employment.
The examples of reasonable accommodations put forward in the TAG are worthwhile for employers to look into. They go beyond making facilities and work stations accessible, and providing readers or interpreters, to restructuring jobs and providing part-time or modified work schedules.
OFCCP also recognized three specialty areas - Athletics, Medical, and Online Universities – that present unique circumstances and provided additional guidance in these areas.
In addition, it included several resources in the appendices for determining availability, conducting an adverse impact analysis, as well as some sample organization profiles for illustration.
Overall, the TAG provides a useful overview to help educational institutions understand their obligations, as well as information that would be helpful in developing and updating AAPs, and more importantly, offers valuable insight into what OFCCP will look for and how it will evaluate information provided in an audit, that can help educational institutions prepare for a future compliance evaluation.