OFCCP Response to OMB 1250-0006

OFCCP appreciates the comments and recommendations submitted by the Center for
Workplace Compliance (CWC) on the Functional Affirmative Action Programs (FAAP)
Agreement Approval Process, published in the Federal Register on May 2, 2019 for the 30-day
comment period. Compared to the prior OMB authorization of this program that took place on
April 28, 2016, OFCCP made several changes to improve it while decreasing recordkeeping
and reporting requirements imposed on FAAP program participants.
In summary, CWC requested two changes to the FAAP program. Below are the requested
changes, followed by OFCCP’s response.
•

Eliminate the requirement that contractors and subcontractors provide
information concerning their federal contract.

OFCCP maintains its assertion that it is necessary that a contractor requesting a FAAP
agreement provide information concerning at least one qualifying federal contract. As
explained in the supporting statement, OFCCP emphasizes that its enforcement authority rests
with federal contractors and subcontractors and the submission of information pertaining to a
federal contract or subcontract substantiates the agency’s regulatory authority to negotiate a
FAAP agreement. It is the agency’s position that a contractor or subcontractor requesting to
enter into an agreement with OFCCP should submit information to confirm that they are a
covered federal contractor or subcontractor. CWC states, “Indeed, contractors that regularly
undergo OFCCP compliance evaluations but that are not FAAP contractors are not required to
provide this information.” OFCCP points out that entering into a FAAP agreement is not the
same as a compliance evaluation. When requesting a FAAP, it is the contractor or
subcontractor engaging the agency and the responsibility lies on the requestor to provide
sufficient information to show that it meets the program criteria.
•

Eliminate the requirement that all functional or business units must contain at
least 50 employees in order to qualify for a FAAP agreement.

The requirement that a functional unit have 50 or more employees has been in the directive
since it was initially approved by OMB in 2012. It is critical that this requirement remain as
OFCCP does not conduct compliance evaluations of establishments or functional or business
units with fewer than 50 employees. It is important to point out that since the directive came
into place, no request for a FAAP agreement has ever been denied. OFCCP works with the
contractor or subcontractor to identify a suitable way of combining employees into functional
or business unit or identifying them as an establishment.
For the reasons outlined above, OFCCP respectfully declines to make the two requested
changes. To increase participation of contractors in the FAAP program, OFCCP already
revised it to make it less burdensome for contractors while the current criteria are necessary for
maintaining its integrity and utility.

1