United States: A More Modern Approach To OFCCP's Functional Affirmative Action Programs?

Last Updated: September 19 2018
Article by Lance E. Gibbons and David J. Goldstein

Generally, federal contractors must develop a written affirmative action program for every physical location with 50 or more employees. Recognizing that the workforce is not always tied to an establishment, the Office of Federal Contract Compliance Programs (OFCCP) adopted regulations almost 20 years ago that permit contractors to adopt a Functional Affirmative Action Program (FAAP) based on functional operations instead of the establishments where employees are physically located. Contractors with clear functions or lines of business find that FAAPs make it easier to organize and analyze data, identify issues, establish clear lines of responsibility for implementing their affirmative action programs, and monitor progress towards goals. OFCCP recently issued a directive—which is open to public comment—revising its policies and procedures for requesting and maintaining FAAP agreements.

Other FAAP Benefits

Establishment-based affirmative action programs present significant challenges for employers with substantial numbers of remote employees, particularly when employees telework. A FAAP can represent a practical solution to such a challenge. For example, a contractor may have hundreds of salespeople working all over the country out of their homes. These salespeople may then report, in turn, to district or regional managers who also work out of their homes. An employer with establishment-based plans may have no choice but to include these hundreds of salespeople and their supervisors as an unwieldy addition to their headquarters' plan. By adopting a FAAP, the contractor could cover its sales force under a national FAAP (or, perhaps, several regional FAAP units) creating greater efficiency and better supporting meaningful affirmative action compliance.

Proposed Changes

Unfortunately, however, OFCCP has never been enthusiastic in its support of FAAPs. The regulation authorizing the use of FAAPs is very general in its language and has been implemented through directives outlining the procedures for obtaining approval of a FAAP.1 While establishment-based plans are reviewed by OFCCP only if the contractor is selected for an audit, FAAPs must be approved by OFCCP in advance and are then regularly audited. In addition, with every change in presidential administrations, OFCCP's approach toward FAAPs fluctuates, with the agency sometimes more and sometimes less supportive of FAAP agreements.

In this context, OFCCP's recently proposed FAAP Directive is an encouraging first step, but it is hoped that the final revisions will go even further in making FAAPs an attractive option for many more contractors.2

Importantly, the proposed revisions to the policies and procedures for requesting and maintaining FAAPs do not eliminate all of the requirements that contractors must meet before a FAAP agreement may be approved by the OFCCP director. However, the proposed revisions reflect OFCCP's intention to decrease the regulatory burden, increase transparency, and ensure a consistent application of its policies and procedures. The most significant proposed revisions include:

  • Increasing the agreement's effective period from three to five years;
  • Eliminating the requirement that FAAP contractors undergo at least one compliance evaluation during the term of the agreement;
  • Expanding the exemption period for FAAP units that have undergone a compliance evaluation from 24 months to 36 months from the date OFCCP closed the previous evaluation;
  • Eliminating the consideration of a contractor's equal employment compliance history and whether a contractor is under a conciliation agreement with a reporting requirement when deciding whether to approve a FAAP request;
  • Removing the three-year waiting period for reapplying for a FAAP following termination of an agreement;
  • Eliminating the annual requirement for contractors to modify their FAAP agreements;
  • Removing language permitting OFCCP to terminate a FAAP agreement where a contractor or any establishment or functional unit has been found in violation of the laws and regulations enforced by OFCCP; and
  • Allowing administrative closure of an establishment-based compliance evaluation received during the 120-calendar-day FAAP implementation period.

Public Input

Comments on these changes are due by November 13, 2018. Littler intends to file comments and is looking for feedback on the proposed revisions. Contractors interested in filing comments themselves are encouraged to do so.

Among the changes that we intend to propose are:

  1. Ending the requirement for advance approval of a FAAP and instead requiring only a filing of the contractor's FAAP structure. Whether that structure satisfies OFCCP's requirements would then be tested during routine compliance reviews the same way that a contractor's establishment-based structure is assessed.
  2. Incorporating the FAAP approval and review process into OFCCP's rules so that contractors know they can rely on consistent treatment over time and will not be subject to a new set of requirements with every change in presidential administration.

There are positive and negatives to a FAAP agreement. Contractors utilizing the traditional establishment-based AAP structure contemplating requesting a FAAP agreement should carefully consider the implications for their companies.


1 The First FAAP Directive, Directive 254, was published in 2002. The Directive was last modified in 2016

2 According to OFCCP, 71 contractors currently have FAAP agreements. This is a very small percentage of the approximately 500,000 contractors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions