On December 11, 2012, the Office of Management and Budget (“OMB”) approved the Office of Federal Contract Compliance Programs’ (“OFCCP’s”) directive to establish a new application process for contractors seeking approval to use functional affirmative action plans (“FAAPs”). A FAAP is an affirmative action plan that is structured by functional or business unit rather than establishment. Contractors have to receive approval from OFCCP before they can use FAAPs to analyze their workforce.
On June 14, 2011, OFCCP issued Directive Number 296, which announced a new process for contractors seeking to obtain approval to use FAAPs. Under the new procedures, OFCCP would only approve FAAP agreements if the contractor met certain threshold requirements, such as having functional or business units that have their own manager with at least 50 employees. OFCCP also established procedures that contractors must follow when requesting approval of FAAP agreements, including submitting detailed documentation that OFCCP would use to determine whether it would approve the agreement.
Earlier this year, OFCCP had to halt the implementation of this directive because it came to OFCCP’s attention that the FAAP directive constituted an information request that fell under the Paperwork Reduction Act (“PRA”) and required OMB approval. The PRA requires federal agencies to receive OMB approval before they issue the same information collection request to 10 or more contractors.
On May 22, 2012 and October 11, 2012, OFCCP published notices in the Federal Register that it was seeking OMB approval of the FAAP directive. Despite receiving comments from the contractor community about how these procedures were overly burdensome and discouraged contractors from seeking FAAP agreements, OMB found that the FAAP directive met the requirements of the PRA. As a result, OFCCP is authorized to collect information under the FAAP directive until the end of 2015.