Construction Contractor’s Guide To Equal Employment Opportunity Compliance

The Virginia Department of Transportation (VDOT) and its Civil Rights Division ensure federal aid construction firms comply with contractual civil rights requirements related to employment and training.

Contractors and subcontractors must engage in practices that ensure nondiscrimination, equal employment opportunity (EEO) and affirmative action (AA).

EEO is treating all persons the same and providing the same opportunities to everyone. AA is steps taken to prevent and correct discrimination.

Federal law requires no recipient or beneficiary of federal aid shall discriminate against anyone because of race, color, religion, sex, national origin, age or disability.

When a construction contracting firm signs a federal aid contract, it agrees to specific nondiscrimination, EEO and AA provisions in all employment practices.

Employment and training requirements for federal aid contractors have been established by a number of executive orders, laws, regulations and agency orders.

Those requirements are organized and specified in Form FHWA-1273, incorporated into all VDOT federal aid construction contracts of $10,000 or more.

Prime contractors must include it in every related subcontract of at least $10,000.

VDOT federal aid contracts of $10,000 or more must also contain the U.S. Department of Labor’s Equal Opportunity Clause and standard federal EEO contract specifications.

EEO/AA Is The Law

VDOT and federal aid construction contractors and subcontractors must implement and monitor programs that ensure EEO / AA in all nonexempt construction activities.

Federal Highway Administration (FHWA) regulations in 23 CFR 230 provide the basis for these contractual obligations and VDOT’s contract compliance and monitoring program.

VDOT enforces EEO / AA requirements through cooperation with FHWA, all contractors, subcontractors and participants.

Compliance with federal EEO / AA provisions is also enforceable by referral to appropriate agencies, including the Federal Highway Administration (FHWA), the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) and the Department of Justice.

Note while this overview focuses on federal aid contract compliance, Virginia state government contractors are also required to comply with nondiscrimination directives of the Virginia Public Procurement Act in contracts and subcontracts exceeding $10,000 in state funds. Virginia executive order 41 (2015) also encourages state government contractors to “ban the box” on employment applications. This means removing questions about past criminal convictions from general employment applications.

Prime contractors are responsible for not only EEO / AA compliance of their own companies, but also compliance of their subcontractors.

This overview is designed to help contractors understand and comply with their EEO / AA obligations and with provisions of their VDOT contracts.

The following is a basic framework upon which contractors can build EEO / AA compliance programs.

This information is not exclusive and shall not be construed as legal advice. All VDOT compliance determinations are made on a case-by-case basis.

If you have questions or require assistance, contact the VDOT Civil Rights Division.

Civil Rights Division EEO Contract Compliance Reviews

FHWA order 4710.8 gives VDOT authority to conduct compliance reviews of contractors and make determinations about EEO compliance.

VDOT also monitors compliance with federal affirmative action requirements under Executive order 11246, as established by the OFCCP, and must notify OFCCP of any violations.

The Civil Rights Division schedules EEO contract compliance reviews of contractors or subcontractors on a regular basis. FHWA regulations and procedures for reviews are found in 23 CFR 230, Subpart D. 

The contractor’s EEO officer will receive a letter from a district civil rights manager (DCRM), notifying them of a scheduled review, with a request for specific documentation, prior to the date of the onsite meeting and review.

A sample list of all potential items to be submitted to the DCRM in advance of the review is in the Compliance Review Desk Audit.

The Civil Rights Division will conduct EEO contract compliance interviews with a number of employees in order to measure the effectiveness of the EEO program.

Documenting compliance involves meeting requirements of two federal agencies. A summary of monitoring standards is in documenting compliance for FHWA and OFCCP.

Fundamentals Of A Compliant Contractor EEO Program

Form FHWA-1273: All contractors and subcontractors receiving $10,000 or more in a federal aid contract are bound to provisions of this document and are responsible for complying with its specifications.

Reading and understanding Form Form 1273 is the first step in a federally compliant EEO program.

EEO officer: Contractors must designate an EEO officer with authority to implement an EEO / AA program, monitor compliance and promptly investigate complaints.

The EEO officer must have access to top management, all personnel and all information related to company employment practices to ensure compliance.

The contractor’s chief executive is expected to fully support the program and the EEO officer.

EEO policies and procedures: Contracting firms must clearly state commitment to implementing employment and business practices that ensure nondiscrimination and equal opportunity.

Contractors must fully document an intentional and organized EEO / AA program throughout recruitment efforts, advertisements, job postings, job applications, training materials, supervisory and employee handbooks and subcontracting and purchasing agreements. 

Programs should clearly define prohibited behaviors, such as unlawful workplace harassment, and include procedures to correct and eliminate any discrimination.

Communication / dissemination of policies: Federal aid construction contractors are expected to hold regular meetings with employees and supervisors, and post job site bulletin boards, in order to clearly communicate EEO / AA policies.

All employees must be informed about these policies and procedures, including how to report complaints.

Recruitment efforts and affirmative action: Full compliance involves making a good faith effort to recruit a diverse workforce and encourage women and minorities to apply for positions.

A clear record of recruitment efforts is important, as well as all steps taken to promote and advance women and minority employees after they are hired.

Recruitment should be both systematic and direct.

Systematic recruitment is targeted to organizations that are women or minority-focused, while direct recruitment is done through person-to-person outreach or employee referrals.

If a contractor’s workforce is not as diverse as the locally available job-seeker population, the contractor remains in compliance with affirmative action requirements as long as efforts to diversify are continuous, done in good faith and documented. 

On-the-job training (OJT) programs: It is a contractor’s responsibility to maintain a continuous training program designed to develop skills of women, minorities and disadvantaged persons.

A program must be in place, even if the contractor doesn’t have a contract with a specific OJT goal assigned by VDOT.

FHWA has a policy “to require full utilization of all available training and skill-improvement opportunities to assure the increased participation of minority groups and disadvantaged persons and women in all phases of the highway construction industry.”

When a contract goal is assigned, FHWA Training Special Provisions apply. 

When OJT contract goals are set on projects, FHWA provides contractors with funding assistance for training programs. VDOT has the authority to withhold payment to contractors that fail to make a good faith effort to fulfill specific OJT contract placement goals.

Monitoring and review of personnel actions: Contractors must schedule a review of personnel and business practices on a regular basis to ensure nondiscrimination and EEO.

The EEO officer is responsible for analyzing company personnel actions and monitoring day-to-day compliance of their firm and all subcontractors.

Availability and utilization analysis: To comply with FHWA and OFCCP AA requirements, the EEO officer must review availability of qualified women and minorities in the contractor’s recruitment area and compare his or her own project workforce data with those availability statistics.

EEO officers should conduct an availability / utilization analysis according to the two methods described below. The AASHTOWare CRL system allows contractors to measure workforce representation of minorities and women using either a person count or an hour count method.

  • Person count method: For FHWA compliance, contractors will compare appropriate U.S. Census availability data with an EEO person count of their total project construction workforce.

    To find construction workforce availability statistics, EEO officers should refer to Tables for EEO Tabulation 2006-2010 and select the first report under Table Set 4 (EEO-1 Job Categories by Sex and Race/Ethnicity) and select the appropriate geographic area in Virginia.

    EEO officers will then conduct a person count of their total project workforce and look for women and minorities to be represented in percentages that reflect the census data. Civil Rights Division EEO compliance reviews consider whether the total contract workforce shows reasonable representation, based on total project employment by the prime contractor and all subcontractors. 

    A contractor cannot be found non-compliant for coming up short of local availability, but only for failing to make a good faith effort to recruit, hire and retain women and minorities for the total project workforce.

  • Hour count method: For OFCCP compliance, contractors will compare the project location’s federal EEO employment goals with total hours worked by all construction trade employees.

    OFCCP’s EEO employment goals for local areas in Virginia are contained in the standard federal EEO contract specifications located on pages 1-77 through 1-83 of the VDOT Road and Bridge Specifications. EEO officers will create a report of total project employment hours and look for women and minorities to be represented in percentages that reflect appropriate, local area OFCCP employment goals.

    The forms of analysis described above are important features of a federal Affirmative Action Plan (AAP) required of contractors that do business directly with the federal government.

    The Civil Rights Division recommends contractors develop AAPs in order to fully document EEO / AA programs.

Employment data tracking: Federal aid contractors are responsible for collecting EEO data about applicants and employees in order to show personnel decisions, including wage rates, are nondiscriminatory.

EEO data must be gathered for review by the contractor and applicable government agencies.

To maintain compliance, human resource professionals should refer to the Uniform Guidelines on Employee Selection Procedures issued by the Equal Employment Opportunity Commission (EEOC) and be aware of any other guidance from EEOC.

Investigating adverse impact and complaints: The EEO officer must investigate employment patterns that suggest adverse impact and take corrective action.

Adverse impact occurs when employment decisions seem to have less to do with qualifications and performance and more to do with race, color, religion, sex, national origin, age or disability.

The EEO officer will make clear to all employees that they are protected by EEO laws and can complain about discrimination or harassment that may occur on the job, without fear of retaliation.

The contractor is required to have procedures to receive complaints, conduct fair investigations and take immediate, appropriate action to correct any unlawful discrimination or harassment.

Disadvantaged Business Enterprises (DBE): Contractors are expected to adhere to DBE provisions in their federal aid contracts. It is the responsibility of VDOT and its contractors to ensure full compliance with the DBE program as it is applied to individual contracts.

To the best of their ability, contractors must conduct continuous outreach to woman- and minority-owned businesses to increase the share of federal contracting dollars going to such firms.

When VDOT sets a DBE participation goal for a construction contract, the contractor must meet the goal or provide detailed evidence that it made a good faith effort to achieve it.

Contractors must also ensure that all of their DBE subcontractors, haulers, suppliers and manufacturers perform a commercially useful function.

Record keeping: Form FHWA-1273 states contractors shall maintain all EEO-related records for a minimum of three years following final payment for any federal aid contract.

Key items to retain are all payroll and personnel records, as well as documentation of recruitment and training activities.

Each year, contractors must also file with VDOT an annual C-57 EEO Workforce Report (Form FHWA 1391).

The form reports all work classifications on federal aid highway projects for the last pay period in July and must be compiled and sent to FHWA.

This report is a “snapshot” person count for all federal aid contract labor during one week in July.

Other resources: Federal Aid Essentials/EEO Contract Compliance

 

Page last modified: Oct. 9, 2018