EEO Compliance Training

The use of Race and Ethnic Categories in Affirmative Action Training Programs

The use of Race & Ethnic categories in affirmative action programs requires compliance training.

--USERRA applies to every employer, regardless of size or business sector. There is no minimum number of employees threshold as in many other employment laws.

--All employers must grant military leave, on request of the service member involved. Employers may ask for documentary proof that the leave is military, which often comes in a letter from the unit's commander. Leave can be for required training as well as for extended service.

--Leave is unpaid under the law, although some companies pay leave-takers their salary or the difference between their military and civilian pay, for purposes of both patriotism and retention. Employers must also continue to offer health benefits for up to 24 months. The first 31 days are at the employee's normal rate of contribution. The remainder is handled like COBRA, with the employee liable for 102 percent of the full premium.

--In normal times, the employee's job is protected for up to 5 years of cumulative military service. When leave-takers return, they must be placed in the position they would have had if they had stayed. Credit toward pensions and seniority must be awarded as if the individual never left.

Beginning in 2007, employers, including Federal contractors, will report data about the racial, ethnic, and gender composition of their workforces on a revised Standard Form 100, Employer Information Report (commonly referred to as the "EEO-1 Report"). The revised EEO-1 Report must be filed for the first time by September 30, 2007.

OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race and ethnic categories used on the previous EEO-1 Report: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. In light of the changes to the EEO-1 Report, OFCCP is drafting proposed amendments to the recordkeeping and affirmative action program (AAP) regulations at 41 CFR parts 60-1 and 60-2 designed to require the use of consistent race and ethnic categories in the Executive Order 11246, as amended (Executive Order) program.

Comments:  OFCCP will publish a proposed regulatory change in the Federal Register “soon,” which means it will be several months before the final rule is published.  It is not feasible for the government to expect contractors to have it/report it both ways, therefore, OFCCP will allow the new standards (required by EEOC) to be utilized and no citations (based upon the race and ethnic categories) will be issued if an audit is conducted, i.e., contractors are permitted to prepare AAPs using the racial and ethnic categories provided under the OFCCP regulations or the EEOC new categories. 

To review this OFCCP guidance, go to their web site at:

http://www.dol.gov/esa/regs/compliance/ofccp/EEO1_Interim_Guidance.htm