FEDERAL CONTRACT LAW
Labor eases up a bit on contractor reporting
size="2" color="#FF0000">Joseph J. Petrillo
For the first time in 30 years, the Labor Department has rewritten the affirmative action rules for government contractors.
The rules have long had a broad impact. They require an affirmative action plan for all contractors that have more than 50 employees and $50,000 worth of annual contracts.
The new rules are an example of a trend toward simpler, more user-friendly regulations. The movement to plain English is gradually changing the shape of federal requirements. Someday this movement could extend to standard government contract clauses.
Whether the new regulations, plainly written or not, will be easier or harder to administer than the old ones is a toss-up. There are several major changes. Some appear to cut contractors' workload, but at least one will increase it.
The major simplification is in the new rules for affirmative action plans. Currently, contractors must do a work force analysis, essentially a listing of job titles grouped by pay rates within each department or similar organizational unit. For each job title, the employer is obligated to identify the race, ethnicity and sex of the current job holder.
The new regulations permit contractors to continue to use the work force analysis or to substitute an organizational profile, a simpler study that goes only as deep as the organizational unit level instead of individual job title.
Another simplification in the plan requirements is in the so-called availability analysis, which seeks to determine the degree to which women and minority group members can fill future vacancies.
Current regulations set forth an eight-factor analysis. The new regulations substitute a two-part test. The employer must determine internal availability'women and minorities within the organization. They also must determine external availability'women and minorities outside the company.
Labor will let companies with 150 employees or fewer use the profile information they must file annually in their Equal Employment Opportunity Employer Information Reports.
Not all the changes decrease the compliance burden, however. Under the new rules, Labor will require all nonconstruction contractors to submit a survey every other year.
The survey asks for details about full-time employees and their compensation, personnel activity and affirmative action plans. Contractors are encouraged to file their reports via the Internet. Labor uses the survey results to select contractors for compliance evaluations.
Labor estimates that it takes a respondent an average of 21 hours to answer all the questions, which is probably an understatement.
The administrative burden of the new regulations could depend on contractors administer them. For instance, changing the eight-part test of availability to a two-part standard won't be much help if Labor auditors continue to refer to all the old factors when assessing compliance. And, if the new surveys lead to more audits, the burden will surely increase.
The new regulations establish a framework for equally fair process. It is up to Labor to fulfill this promise.Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo & Powell, PLLC. E-mail him at firstname.lastname@example.org.