As we all move farther forward into the new era of EEO compliance during President Trump’s Administration, we are learning just how much the revocation of EO 11246 complicated the compliance landscape for organizations across the country.
There has long since been a hodgepodge of state, city, and even county requirements for organizations that either do business with, or simply do business in, these particular jurisdictions. But if an organization was a federal contractor required to prepare annual federal affirmative action plans (AAPs) by sex and race/ethnicity, many of these state and local obligations were satisfied. Except for a few outlier states, organizations typically did not have to worry much about their state and local AAP or other EEO certification or filing requirements.
Those days are gone.
Today, organizations need to map out where they “do business” and what government entities they do business with, then identify those jurisdictions with specific AAP or other obligations, figure out what those obligations are, and finally formulate a plan for compliance going forward.
This is no small task because the state and local compliance landscape is not only less transparent and more prone to change, but also more prone to change without notice. So how are organizations supposed to navigate their compliance obligations in this new era?
Our Recommended Approach
Most of the state and local AAP or EEO certification requirements apply to contractors, which is why we are encouraging employers to start by “mapping out” their government contracting activity.
We understand that the most common impulse is to find a reliable state and local obligation resource to narrow the search of contracts, but that could be a mistake, particularly since some requirements are contract-specific and because state and local requirements may change, especially in the current environment.
Instead, we recommend organizations catalog all their current and proposed state and local contracting activity, including grants. Gathering this information will be the start of mapping your obligations and tracking them going forward. A Berkshire consultant can then map out all of the various state and local requirements, develop a comprehensive plan for compliance going forward, and keep your organization on track with due dates that will likely vary (some are one-time requirements, some annual, semi-annual, every four years, etc.). Berkshire consultants will also monitor identified jurisdictions for changes, along with our general efforts to catch entirely new developments.
Overview of State Requirements
The requirements for states and local jurisdictions are varied and can range from contract clauses regarding anti-discrimination policies to EEO-1 type reports to full AAP programs. Not all state or local jurisdictions require a written AAP and for those that do, the requirements can be similar to, but not identical to, the federal AAP prepared under EO 11246. Some have no additional obligations for contractors or businesses.
In addition, some state and local requirements only apply to employers with a certain number of employees, although the threshold can be as few as five employees. There also may be a contract value threshold amount that must be met in some states or local jurisdictions. Finally, some states have annual EEO/AAP certification requirements, and others require certification on a less frequent basis, including every four years.
The penalties for non-compliance also vary by jurisdiction, but can include monetary penalties, withholding contract payments, and barring your organization from entering into new contracts until you are in compliance.
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