Labor & Employment Law

OFCCP directs employers on counting employees in setting affirmative action plan goals

The Office of Federal Contract Compliance Programs (?OFCCP?) has updated its existing interim guidance regarding the use of the ?new? race/ethnicity categories as part of affirmative action plan preparation. As part of the updated interim guidance, the OFCCP has advised that employers should count employees identifying themselves as ?Two or More Races? as minorities in analyzing minority representation as compared to availability (when conducting utilization analyses and setting placement goals). Prior to this guidance, the OFCCP had not provided clear direction to employers about how to classify employees properly who identify themselves as ?Two or More Races.?

In 2007, the EEOC changed its EEO-1 report form. Among other things, it:

1. Separated ?Hispanic or Latino? from other race categories and instead classifying it as a separate ?ethnic? category;

2. Added a ?Two or More Races? race category; and

3. Divided the former ?Asian or Pacific Islander? race category into two separate categories ? ?Asian? and ?Native Hawaiian or Pacific Islander.?

The OFCCP then issued an interim guidance indicating it would not cite employers for violations for using the new race/ethnicity classifications in their affirmative action plans. Employers, however, were left without guidance as to how to classify the new ?Two or More Races? category in their plans? statistical goal-setting.

The OFCCP?s new guidance supplies this information by directing employers to count employees identifying as ?Two or More Races? as minorities. The OFCCP indicated as well that employers should continue to establish single overall placement goals for minorities and need not set specific sub-minority placement goals.

The OFCCP also acknowledged the need for additional guidance. It said that it is ?considering amendments to the record keeping and affirmative action program (AAP) regulations,? but the Agency gave no indication when it expects to publish such additional guidance.

The agency reiterated that until further guidance is issued, employers may continue to use in their affirmative action plan goal-setting analyses either the pre-existing five mutually exclusive race categories or the ?new? race/ethnic categories employed by the EEOC for EEO-1 reporting.

[N.B. Jackson Lewis LLP, one of the country's leading workplace law firms, has opened an office in Albany, N.Y. With this expansion, the firm now has over 100 attorneys working in four locations in the state including New York City, Long Island and White Plains.]

Full post as published by New York Public Personnel Law on September 18, 2008 (boomark / email).