One of the least discussed, yet most contentious areas in Affirmative Action Planning is the determination of the date in which the Affirmative Action Plan (AAP) goes into effect and the determination of the associated employee snapshot date. For years I have spoken with clients, consultants and the OFCCP regarding their perception on choosing an appropriate plan date and it always surprises me how disparate the answers can be.
First, let’s start with the regulations. The requirements are very simple. Contractors must have an AAP in place within 120 days of commencing a Federal contract. Here is the citation:
This clearly states that contractors need to have a plan finalized within four (4) months. However, the regulations do not state exactly what the annual renewal date must be and contractors should be aware that they can choose the date within those 120 days that fits the needs of the company.
Before we go into the plan date versus employee snapshot discussion, let’s review the common themes for selecting a plan date and the pros and cons of each.
Yes, they can. Contractors must develop their first AAP to meet the 120 day requirements, but they do not necessarily have to stay at that date forever. Now there is an important warning flag to raise here because contractors do not ever want to have a gap in their plan development. Meaning, if you have a plan that is due in October but you really want to have a calendar based plan that is active on January first, you cannot (or at least you should not) simply wait three months and start a new plan in January. This would mean you have a gap in time where you have no active plan. While you might get away with doing it, be aware that OFCCP considers that a form of non-compliance and they expect that contractors will always have an active plan. So this gives way to the very common question “How do I change my plan date?” The answer is simple. Write an update that begins when your current plan ends and have the update expire on the date you want to start your new plan date and then update annually from there. Now shifting a plan date can cause a little confusion during an audit if your dates move around so be prepared to explain anything outside of a typical 12-month AAP program. While I was hesitant to suggest having an extended plan, for example a 15-month AAP, I want to say thanks to a knowledgeable consultant who gave me some feedback on this article and she suggested that OFCCP will accept an extended plan so long as there is a logical explanation provided such as a new HRIS being put in place or other significant change.
Mergers and acquisitions cause heartburn on many levels for HR folks and AAP compliance often becomes a quagmire. When a Federal contractor acquires a company, that company typically falls under the compliance radar and I have had many reliable people agree that it places those companies in the 120 day window just like a new contractor. This means that if a contractor acquires a company, the buyer should make sure that the new group has plans in place in short order if they don’t have AAPs already. Having some experience with this, I know it’s never anywhere near that simple, but that is a discussion for another article. Regardless, there does need to be a plan to get the new businesses into compliance. If there is a significant reorganization planned, then the contractor may have to wait for the dust to settle, but then the recordkeeping becomes a huge challenge. Once again, this falls under the necessity to document everything. Be able to show who moved into and out of what sites, and be prepared to explain any site closures to the OFCCP. Big changes in headcounts will throw OFCCP for a loop without a story to back it up.
While it may be somewhat common for companies to stagger their plan dates for completion across the year, it always surprises me to see that scenario. I understand why contractors do it because of the effort it can take to create an affirmative action plan from data to final reports when so many other needs are pressing. However, if at any time I engage a client using staggered plan dates, putting an end to that practice will be my first order of business. My reasoning is simple. “How can you ever work to implement the results when there is never a true conclusion to the process?” If the completion of one set of AAPs only results in the beginning of the next set, then how can a company ever improve upon their weaknesses? While it seems likely that a lack of resources is the driving force behind staggered plans, the contractor should try to get away from the practice so they can turn their attention to Good Faith Efforts, better record keeping, training, etc. Note, there are always exceptions such as the use of functional AAPs which operate independently. Regardless, if a client asks how to change this process, the answer may necessitate a trip to the C-Suite and asking for (requiring) more resources. In today’s EEO/AA environment, the requirements for compliance are expanding so making do with previous levels of support simply aren’t going to cut it.
We will wrap up this discussion with the toughest question of them all. For many years, Federal contractors have, for example, used a December 31st employee snapshot followed by a January first plan date that looks like January 1, 2013 to December 31st, 2013 for the annual AAP cycle. So, does this mean everyone is developing the AAP on New Year’s Eve? Ha Ha, and no. I would wager that nary an ILG conference goes by without someone making that age-old joke. The reality is that it means people are developing their AAP in the early part of the year with a retro-active date listed on the plan, and if they get audited, it just means they develop the plan faster. So why would contractors subject themselves to the pressure of trying to push through an AAP after the start date has already passed? Doesn’t this mean that there is a window of time where the contractor does not have an active plan? Yes, technically it does. However, this has been common practice for many years and it’s a known fact that OFCCP expects it and will have an issue with any gaps between the snapshot and the plan date. Trust me, I have asked OFCCP staff for their opinion on this in just about every region. Now it may seem logical that a contractor would prefer to pull the snapshot data, develop the AAP and then have it become active; however, it can be argued that the data at that point is already detached from the plan date, and it creates an awkward perception when the data has to be renewed prior to the plan date if it is to remain on a 12 month schedule for renewal. It’s worth mentioning that some organizations do utilize a separation between the snapshot and actual plan date, but I would not recommend doing it without approval from your OFCCP district office. Let the debate rage on, but for practical purposes, the concept of an employee snapshot being immediately followed by the plan date is, for all intensive purposes, the industry standard, perfectly logical or not.
Good luck out there.