U.S. Department of Labor issued the following announcement on Sept. 5.
The Office of Federal Contract Compliance Programs (OFCCP) announced guidance clarifying affirmative action program (AAP) development for academic institutions and other contractors with campus-like settings, and advancing the White House Initiative on Historically Black Colleges and Universities (HBCUs). OFCCP also issued a complementary policy directivelimiting compliance reviews of academic institutions to non-student employees.
"The Department of Labor is committed to fulfilling the White House's promise to HBCUs, and providing quality guidance and assistance that aids contractors in meeting their legal requirements," said Acting Secretary of Labor Patrick Pizzella. "At the same time, the new compliance review directive recognizes that student workers have a unique relationship with academic institutions.
The new OFCCP HBCU webpage will serve as a one-stop shop to provide contractors with resources that will help them increase the representation of minorities and females in career-level jobs. It includes answers to frequently asked questions (FAQs) on AAPs for campus-like settings. This includes guidance on whether one or multiple AAPs should be maintained for a multi-building establishment. OFCCP considers an establishment to be a physical location, such as a factory or office. However, some contractors with campus-like settings may have multiple buildings that constitute an establishment.
Under the new student employee policy directive, OFCCP will not cite violations for excluding student workers from the AAPs or employment activity data submissions during compliance evaluations. OFCCP will continue to accept complaints alleging employment discrimination filed by and on behalf of student workers, while remaining focused on examining the personnel practices and outcomes of non-student employees whose primary relationship with the educational institution is work-related.
When OFCCP receives complaints filed by or on behalf of student workers, it will determine the employee status of a student worker by applying the legal test established in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992). Application of the Darden multi-factor test requires an understanding of the unique relationship the student worker has with the educational institution. These relationships are varied and courts have reached different conclusions regarding students' employee status based on the particular facts of each case.
"Streamlining how contractors determine whether to maintain one or multiple AAPs for multi-building sites just makes sense," said Office of Federal Contract Compliance Programs Director Craig Leen. "And recognizing that student workers of educational institutions have a unique relationship with their employer compared to non-students provides needed focus to OFCCP compliance evaluations."
Additionally, a directive on student workers formalizes a different set of FAQs that were released earlier this summer. The directive gives guidance to educational institutions on whether they need to include student workers in their AAPs and the support data submitted to OFCCP during a compliance evaluation. OFCCP also plans to release a technical assistance guide for educational institutions this year.
The new guidance and webpage are consistent with the goals of the White House initiative, which works with federal agencies, private sector employers, educational associations, philanthropic organizations, and other partners to increase the capacity and competitiveness of HBCUs to provide the highest-quality education to an increasing number of students.
OFCCP is a civil rights agency in the U.S. Department of Labor. It enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. Collectively, these laws prohibit federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. Additionally, contractors must act affirmatively to ensure equal employment opportunity in their employment processes, and they must not discriminate against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations. For more information, please call OFCCP's toll-free helpline at 800-397-6251 or visit http://www.dol.gov/ofccp/.
The mission of the Department of Labor is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.
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