It is late Spring. For a Government contractor or subcontractor, that means it is time for equal employment opportunity (“EEO”) housekeeping. After tax season is over, and before proposal season really heats up, there is EEO Spring. Indeed, if you see the geraniums bloom, it is time to think about EEO. And this Spring, contractors and subcontractors have two June filing deadlines to think about—June 21, 2022 for the EEO-1 Report, and June 30, 2022 for the brand new Affirmative Action Program Certification. More on that below.
So, what does EEO housekeeping look like? In a nutshell, management is going to inspect, gather information, communicate with stakeholders, perform analyses, evaluate results and procedures, update documents, file reports, and ensure that efforts are documented in case of audit by a Contracting Officer or the U.S. Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”).
The housekeeping checklist should include, but is not necessarily limited to, the following.
1) Who’s In Charge?
OFCCP regulations state that “[t]he contractor must provide for the implementation of equal employment opportunity and the affirmative action program by assigning responsibility and accountability to an official of the organization.” Hence, someone must be identified as the head of the EEO program (e.g., an EEO Compliance Officer, EEO Manager, or EEO Coordinator). Maybe it is not a full-time position, but an additional duty for an HR Manager or General Counsel. Maybe the responsibility rotates between the company’s senior managers. However a contractor/subcontractor does it, at any given time, there has to be an individual who is assigned primary responsibility for the company’s EEO program.
2) Review and Update the EEO Policy Statement
A contractor/subcontractor needs an EEO policy statement.
OFCCP regulations for veterans and workers with disabilities provide that “[t]he contractor shall include an equal opportunity policy statement in its affirmative action program, and shall post the policy statement on company bulletin boards.” An EEO policy statement is also required for virtually all construction contractors/subcontractors.
Among other things, the EEO policy statement is the contractor’s/subcontractor’s written affirmation that it is does not discriminate against applicants or employees based upon one of the classes protected by Executive Order No. 11,246 of 1965 (and related regulations), Section 503 of the Rehabilitation Act of 1973 (“Section 503”), or the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”). The EEO policy statement should also identify the person in charge of the company’s EEO program.
For everything to be addressed in an EEO policy statement, the contractor/subcontractor should consult, as applicable, the OFCCP Federal Contract Compliance Manual, the OFCCP Construction Contractors Technical Assistance Guide, the OFCCP Supply and Service Contractors Technical Assistance Guide, and/or the Small Federal Contractor Technical Assistance Guide.
3) Develop New Hiring Goals
A contractor/subcontractor Affirmative Action Program (“AAP”) must establish hiring goals.
OFCCP regulations for veterans state that “[h]iring benchmarks shall be set by the contractor on an annual basis.” The process for determining veteran hiring benchmarks is provided at 41 C.F.R. § 60-300.45. Alternatively, a contractor/subcontractor can use the OFCCP-published National Percentage of Veterans in the Civilian Labor Force.
Similarly, for workers with disabilities, “OFCCP has established a utilization goal of 7 percent for employment of qualified individuals with disabilities for each job group in the contractor’s workforce, or for the contractor’s entire workforce [if the total workforce is 100 or fewer employees.]”
For other prospective employees, “[t]he contractor must separately determine the availability of minorities and women for each job group.” “The purpose of the availability determination is to establish a benchmark against which the demographic composition of the contractor’s incumbent workforce can be compared in order to determine whether barriers to equal employment opportunity may exist within particular job groups.” The process for determining availability is provided at 41 C.F.R. § 60-2.14. “When the percentage of minorities or women employed in a particular job group is less than would reasonably be expected given their availability percentage in that particular job group, the contractor must establish a placement goal[.]”
For construction contractors/subcontractors, a solicitation that includes FAR Clause 52.222-27 (Affirmative Action Compliance Requirements for Construction) (which is generally included in any construction contract/subcontract in excess of $10,000 and performed in the U.S.) is supposed to expressly state goals of minority and female participation—“expressed as percentages of the total hours of employment and training of minority and female utilization that the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area[.]”
A hiring goal is not a hiring quota. A quota constitutes illegal discrimination. “OFCCP regulations do not permit quotas, preferences, or set-asides. They are strictly forbidden.” Hence, a contractor/subcontractor is generally expected to hire the best applicant for the job (premised upon non-discriminatory basic and preferred qualifications). However, if that does not result in a workforce that meets contractor/subcontractor hiring goals (which, generally speaking, should reflect a diversity comparable to the demographics of the available labor pool), then the contractor/subcontractor is supposed to make improvements. Possible improvements include, among other things, better outreach and positive recruitment, honing the accuracy of qualifications, encouraging applicants to more accurately report demographic information, and making process improvements to application submission, application review, and/or interviewing. The key takeaway is that achieving a hiring goal is not about being preferential in a hiring decision. It is about getting more diverse qualified candidates to apply. And if more diverse qualified candidates apply, that likely will naturally result in more diverse hires. This is how a contractor/subcontractor realizes its hiring goals in an all-around non-discriminatory way.
Despite the foregoing, OFCCP regulations do permit contractors/subcontractors to preference hiring Native Americans. Specifically, “[i]t shall not be a violation of the equal opportunity clause for a construction or nonconstruction contractor to extend a publicly announced preference in employment to Indians living on or near an Indian reservation in connection with employment opportunities on or near an Indian reservation.” “There are approximately 326 Indian land areas in the U.S. administered as federal Indian reservations[.]” “The use of the word ‘near’ would include all that area where a person seeking employment could reasonably be expected to commute to and from in the course of a workday.”
In fact, OFCCP states that “if the contractor utilizes a publically announced Indian employment preference and has a sufficient number of qualified Native American applicants to fill job vacancies[,] it may not need to consider non-Native American applicants.” That said, beware the phrase “may not need to consider,” which is not the same as “does not need to consider.” Consequently, a contractor/subcontractor would do well to consult a labor & employment lawyer before disregarding all non-Native American applicants.
4) Review and Update the Written AAP(s)
Generally, every non-construction (supply and service) contractor/subcontractor that has at least 50 employees, and is performing a contract/subcontract of $50,000 or more, must have a written AAP.
For a construction contract/subcontract in excess of $10,000 (regardless of the number of employees), a contractor/subcontractor must undertake (16) affirmative action steps. And the contractor/subcontractor is going to document those steps in writing. Hence, although not required apart from Section 503 or VEVRAA, a construction contractor/subcontractor might as well have a written AAP.
Pursuant to Section 503, a contractor/subcontractor must have an AAP that addresses affirmative action for workers with disabilities if the contractor/subcontractor has at least 50 employees, and is performing a contract/subcontract of $50,000 or more.
Pursuant to VEVRAA, a contractor/subcontractor must have an AAP that addresses affirmative action for veterans (particularly disabled veterans) if the contractor/subcontractor that has at least 50 employees, and is performing a contract/subcontract of $150,000 or more.
Section 503 and VEVRAA AAPs also apply (when thresholds are met) to a construction contractor/subcontractor on a Federal construction project, but not for a construction project that is merely Federally-assisted.
OFCCP regulations state that an AAP “must be developed within 120 days from the commencement of a contract and must be updated annually.” Moreover, a contractor/subcontractor may be required to have multiple AAPs. Particularly, per OFCCP, there are two types of AAPs—establishment-based or functional. Typically, an AAP is establishment-based, meaning that the contractor/subcontractor has an AAP for each geographical worksite, unless the worksite has less than 50 employees (in which case the employees at that worksite may be rolled up into the AAP where, for that worksite, management and/or human resources sits). Alternatively, after obtaining OFCCP approval, the contractor/subcontractor may have a Functional AAP (“FAAP”), which is an AAP with coverage based on a business function/unit, regardless of worker locations.
A construction contractor/subcontractor operating in excess of $10,000, but below the Section 503 and VEVRAA thresholds, could write an AAP that is not establishment-based or functional, but addresses the OFCCP-mandated (16) affirmative action steps for construction.
A written AAP is meant to be a meaningful, living document that is updated every year. Per OFCCP, “[a]n affirmative action program is . . . more than a paperwork exercise. An affirmative action program includes those policies, practices, and procedures that the contractor implements to ensure that all qualified applicants and employees are receiving an equal opportunity for recruitment, selection, advancement, and every other term and privilege associated with employment.” At the AAP’s core are the analyses and writings required by 41 C.F.R. § 60-2.10(b) (AAPs generally), id. at § 60-4.3(a) ¶ 7 (construction), id. at § 60-300.44 (veterans), and id. at § 60-741.44 (workers with disabilities).
Hence, an AAP generally includes, but is not necessarily limited to, the following: an EEO policy statement; review of personnel processes; physical/mental qualification standards review (to ensure that basic qualifications do not exceed minimum needs — not to be confused with preferred qualifications); reasonable accommodation procedures (including for religious observance and practice); anti-harassment procedures; policy dissemination (including to unions); outreach and recruitment (including efforts to maintain source lists); audit and reporting system; training (not just on EEO policies and procedures, but apprenticeship/trainee programs to create more opportunities); responsibilities for implementation; recordkeeping; data collection and analyses, supervisor compliance analysis; and identification of problem areas and action-oriented programs to address problem areas.
OFCCP provides sample AAPs here (general AAP); here (Section 503-specific AAP); and here (VEVRAA-specific AAP). Creating a meaningful AAP is time-intensive, particularly in gathering the needed data. Hence, leveraging technology (e.g., applicant tracking system (“ATS”) or AAP-customized software) to collate the needed data minimizes that burden. OFCCP regulations also require that, in ascertaining qualified persons available for employment in a job group, “[t]he contractor must use the most current and discrete statistical information available to derive availability figures.” Accordingly, the U.S. Census Bureau EEO Tabulation tool is a preferred resource. Further, creating a proper AAP often requires obtaining assistance, whether from a lawyer or consultant.
5) Check the Posters
Ensure that the EEO notices are posted in workspaces.
FAR Clause 52.222-26 (Equal Opportunity), which is generally in any contract or subcontract valued at $10,000 (unless it is being performed outside the U.S. by personnel not recruited in the U.S.), states that “[t]he Contractor shall post in conspicuous places available to employees and applicants for employment the notices to be provided by the Contracting Officer that explain this clause.”
The three notices to be posted are the “EEO is the Law” Poster, the “EEO is the Law” Supplemental Poster, and the Pay Transparency Nondiscrimination Provision.,  Also, recall from above, the company’s EEO policy statement must be posted on company bulletin boards.
Generally speaking, placement of these notices is required at all locations where work is performed (e.g., headquarters, satellite office, jobsite, etc.). For individuals who work from home full-time, and for job applicants, notices should be posted electronically (e.g., in a job application portal, in the company intranet/network, on company computers, or on the company website). However, whereas OFCCP is generally okay with posting a notice physically or electronically, the Equal Employment Opportunity Commission (“EEOC”) generally views electronic posting as merely supplemental to physical posting. So, where practicable, physically post.
“Posting of the notice in languages other than English is not required.” However, depending on worksite demographics, a contractor/subcontractor will demonstrate more dedicated compliance by providing notice in more than one language (assuming that an appropriate translation is available).
OFCCP does not require a posted notice to be of a certain font size, only that the overall notice is conspicuous. However, EEOC states that “[p]rinted notices should also be made available in an accessible format, as needed, to persons with disabilities that limit the ability to see or read.” And, for the EEO policy statement, OFCCP regulations state that “[t]he contractor must ensure that applicants or employees with disabilities are provided the notice in a form that is accessible and understandable to the individual applicant or employee (e.g., providing Braille or large print versions of the notice, or posting a copy of the notice at a lower height for easy viewing by a person using a wheelchair).” So, obviously, larger print is better, and do not place the bulletin board too high.
The EEOC offers a free print service for up to (5) copies of EEO posters, but it is unclear what size posters are provided. And FAR 22.805(b) states that “[t]he contracting officer shall furnish to the contractor appropriate quantities of the poster entitled ‘Equal Employment Opportunity Is The Law.’ ”
A final word on checking the posters. Generally, checking the posters should occur only once a year. Management is typically too busy to conduct more frequent inspection. However, for once-a-year inspection to work, management needs to simultaneously check all the posters (e.g., notices for the Service Contract Act, Family and Medical Leave Act, National Labor Relations Act, Employee Polygraph Protection Act, etc.), not just the EEO posters. Accordingly, DoL’s online Poster Advisor is a good resource—after answering a few questions, it recommends the notices that should be posted. DoL also provides information on state labor offices, from which state law notices can be obtained.
6) Review the Employee Handbook
FAR Clause 52.222-26(c)(5)(ii)(A) (Equal Opportunity) requires that the pay transparency nondiscrimination provision is stated in the employee handbook. Further, OFCCP regulations for veterans and workers with disabilities require that an EEO policy is included “in the contractor’s policy manual or otherwise make the policy available to employees[.]” Furthermore, the OFCCP Construction Contractors Technical Assistance Guide recommends as best practices that the EEO policy is included in the employee handbook, and that an employee sign a receipt for a copy of the employee handbook.
Therefore, an employee handbook is a primary means of disseminating to employees EEO policies and procedures. In turn, since it is a primary method of internal communication, the employee handbook should be checked and updated.
7) Ensure that all Job Solicitations Include the Equal Opportunity Legend
FAR Clause 52.222-26 (Equal Opportunity) provides that “[t]he Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.”
OFCCP regulations provide, where applicable, that “[t]he contractor must, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment and will not be discriminated against on the basis of disability.”
OFCCP regulations also provide, where applicable, that “[t]he contractor must, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to their protected veteran status.”
Therefore, all job solicitations should state the contractor’s/subcontractor’s commitment to EEO. Accordingly, the OFCCP Federal Contract Compliance Manual offers the following.
“For contractors only covered by Executive Order 11246, it is acceptable to use the phrase ‘Equal Opportunity Employer’ or list out all the bases. However, for those covered by Section 503 or VEVRAA, the tagline should at a minimum state ‘disability’ and ‘vet.’ For example, a contractor could satisfy all three laws by stating in job solicitations that ‘all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.’ It could also use the abbreviation ‘Equal Opportunity Employer – vets, disability’ on its job advertisement taglines.”
8) Publish Openings with Appropriate Job Boards and Recruitment Sources, and Annually Evaluate Outreach and Recruitment Efforts
A big part of affirmative action is outreach and positive recruitment.
Accordingly, OFCCP regulations for veterans provide that “[t]he contractor shall undertake appropriate outreach and positive recruitment activities . . . that are reasonably designed to effectively recruit protected veterans.” As part of this, a contractor/subcontractor is obligated to list job openings with the appropriate employment service delivery system(s) (“ESDS”).,  An ESDS is “[a]n employment service office in a state or locality that provides labor exchange services, including employment, training, and placement services, as part of the national One-Stop/American Job Center service delivery network established by the states.”
The DoL Employer Guide to Hiring Veterans recommends that the contractor/subcontractor seek assistance from the local American Job Center, which in turn can help disseminate job openings on state and local job banks, or the Veterans National Labor Exchange. Another potential resource is the DoL Regional Veterans’ Employment Coordinator. Other outreach examples are provided at 41 C.F.R. § 60-300.44(f)(2).
Turning to workers with disabilities, OFCCP regulations likewise require that the contractor/subcontractor conduct outreach and positive recruitment. Outreach examples are provided at 41 C.F.R. § 60-741.44(f)(2). A primary resource is the Employer Assistance and Resource Network on Disability Inclusion (“EARN”), which is a “free, nationwide service that educates employers about effective strategies for recruiting, hiring, retaining and advancing people with disabilities.”
As addressed above, construction contractors/subcontractors must perform (16) affirmative action steps, some of which are related to outreach and positive recruitment. Specifically, among other things, a construction contractor/subcontractor is required to do the following:
- “Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses.”
- “Maintain a current file of the names, addresses and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source or community organization and of what action was taken with respect to each such individual.”
- “Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor.”
- “Direct its recruitment efforts, both oral and written, to minority, female and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process.”
- “Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer and vacation employment to minority and female youth both on the site and in other areas of a Contractor’s work force.”
Not only must a contractor/subcontractor actually perform outreach and positive recruitment, but OFCCP regulations for veterans and workers with disabilities expressly require a contractor/subcontractor to “on an annual basis, review the outreach and recruitment efforts it has taken over the previous twelve months to evaluate their effectiveness in identifying and recruiting qualified individuals[.]” So, like most aspects of an AAP, the contractor/subcontractor must annually assess its efforts.
9) Inform the Union
FAR Clause 52.222-26(c)(6) (Equal Opportunity) states that “[t]he Contractor shall send, to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, the notice to be provided by the Contracting Officer advising the labor union or workers’ representative of the Contractor’s commitments under this clause[.]”
OFCCP regulations for veterans and workers with disabilities require vis-à-vis an EEO policy that “[i]f the contractor is party to a collective bargaining agreement, it shall notify union officials and/or employee representatives to inform them of the contractor’s policy, and request their cooperation[.]”
Additionally, FAR Clause 52.222-27 (Affirmative Action Compliance Requirements for Construction) states that a contractor/subcontractor must disseminate its EEO policy by “[p]roviding notice of the policy to unions and to training, recruitment, and outreach programs, and requesting their cooperation in assisting the Contractor in meeting its contract obligations;” and “[i]ncluding the policy in any policy manual and in collective bargaining agreements[.]”
Hence, OFCCP contemplates that full implementation of EEO involves union involvement (assuming there is a union). In turn, part of compliance is keeping the union apprised of policies and policy changes.
10) Check the Subcontracts and Subcontractors
FAR Clause 52.222-26 (Equal Opportunity), FAR Clause 52.222-27 (Affirmative Action Compliance Requirements for Construction), FAR Clause 52.222-35 (Equal Opportunity for Veterans), and FAR Clause 52.222-36 (Equal Opportunity for Workers with Disabilities) are all flowed down to subcontractors at the same low thresholds that apply to primes.
Therefore, a prime’s first EEO responsibility vis-à-vis a subcontractor is to ensure that applicable flowdown clauses are included in the subcontract. If a subcontract does not include an applicable EEO flowdown clause, the subcontract should be administratively modified to expressly include it. And if a subcontractor balks at that notion, it is already there by operation of law. Hence, if necessary, a prime can issue notice of the incorporation unilaterally, which is nothing more than giving the subcontractor express notice for something to which the subcontractor already received notice through statute and regulation. Importantly, the OFCCP Federal Contract Compliance Manual states that checking a sampling of subcontracts is part of reviewing a prime’s compliance.
Second, a prime is supposed to provide a copy of its EEO policy to a subcontractor, and request that the subcontractor take appropriate action to comply. Email the policy, ask the subcontractor to comply, and put the email in the file as proof of compliance.
Third, Executive Order 11,246 (as amended) expressly states that “[e]ach contractor having a contract containing the provisions prescribed in Section 202 shall file, and shall cause each of his subcontractors to file, Compliance Reports with the contracting agency or the Secretary of Labor as may be directed.” Stated another way, “Contractors must notify subcontractors, including vendors who are subcontractors, of their obligation to file an EEO-1 Report annually.” Therefore, as part of EEO Spring housekeeping, send an email to all of the subcontractors reminding them of the upcoming deadline for the annual EEO-1 report, and then put a copy of the email in the file as proof of compliance.
Fourth, for construction primes working in geographical areas specified by the OFCCP Director, “Federal construction contractors are required to give written notice to OFCCP within 10 working days of awarding a construction subcontract more than $10,000.” The procuring agency is supposed to be able to provide a list of covered geographical areas. Information on where to send a notice is available here.
Fifth, construction contractors/subcontractors are also supposed to “[d]ocument and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.”
Last, for any non-construction contract or first-tier subcontract of $10 million or more, the Contracting Officer is supposed to send a request to the pertinent OFCCP Regional Office to conduct a check of the prime’s and applicable first-tier sub’s ability to meet affirmative action requirements (called a pre-award clearance).
The request need not be sent for a prime or sub. already in OFCCP’s National Preaward Registry. And OFCCP has 15 days to inform the Contracting Officer whether it will act on the request, and if it does, OFCCP has 20 days to perform the clearance evaluation(s).
Therefore, if the prime is contemplating a subcontract of $10 million or more, the prime may want to be more proactive in ensuring the sub’s compliance. For example, the prime may put in the subcontract a guarantee that the sub actually has an AAP, review the sub’s AAP and other pertinent documents, and/or conduct a fulsome review of the sub’s EEO policies and procedures.
11) Commit to the Once-A-Year Self-Audit
As should be clear from above, being EEO-compliant and having an effective AAP entails more than creating policies and procedures and only revisiting them when there is a problem. Rather, OFCCP regulations require a contractor/subcontractor to make annual/periodic self-assessments.
Overall, “[t]he contractor must perform in-depth analyses of its total employment process to determine whether and where impediments to equal employment opportunity exist.”
As part of this, OFCCP is particularly interested in pay disparities. OFCCP does not require a contractor/subcontractor to use a specific method of analysis for assessing whether any pay disparities exist. However, as stated in the Federal Contract Compliance Manual, “[r]egression analysis is the statistical method of analysis most often used by OFCCP to analyze systemic patterns in compensation.” Regression analysis is “[a] statistical analysis used to evaluate the interrelated effects of independent variables (such as education, prior experience) on a dependent variable (such as hire, compensation). Regression analyses frequently are a significant element of OFCCP’s proof used in systemic discrimination cases.” Since regression analysis is the method OFCCP will likely use, budget permitting, a contractor/subcontractor should seriously consider doing the same.
Other examples of annual/periodic self-assessments include, but are not necessarily limited to, the following.
- “[T]he contractor must develop and implement an auditing system that periodically measures the effectiveness of its total affirmative action program.”
- “[T]he contractor must establish a percentage annual placement goal at least equal to the availability figure derived for women or minorities, as appropriate, for that job group.”
- “The affirmative action programs . . . must be updated annually.”
- “Periodically inform[ ] all employees of the employer’s commitment to equal employment opportunity for all persons, without regard to religion or national origin.”
- For construction, “[r]eview, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions including specific review of these items with onsite supervisory personnel such as Superintendents, General Foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.”
- Also for construction, “[c]onduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities.”
- Also for construction, “[c]onduct a review, at least annually, of all supervisors’ adherence to and performance under the Contractor’s EEO policies and affirmative action obligations.”
- For veterans, “[t]he contractor shall, on an annual basis, review the outreach and recruitment efforts it has taken over the previous twelve months to evaluate their effectiveness in identifying and recruiting qualified protected veterans.”
- Also for veterans, “[t]he contractor shall document the following computations or comparisons pertaining to applicants and hires on an annual basis and maintain them for a period of three (3) years: . . . .”
- Also for veterans, “[h]iring benchmarks shall be set by the contractor on an annual basis.”
- For workers with disabilities, “[t]he contractor shall, on an annual basis, review the outreach and recruitment efforts it has taken over the previous twelve months to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities.”
- Also for workers with disabilities, “[t]he contractor shall document the following computations or comparisons pertaining to applicants and hires on an annual basis and maintain them for a period of three (3) years: . . . .”
- Also for workers with disabilities, “[t]he contractor shall annually evaluate its utilization of individuals with disabilities in each job group, or in its entire workforce[.]”
- Also for workers with disabilities, “[t]he contractor should provide annual training for its supervisors and managers regarding the implementation of the reasonable accommodation procedures.”
In light of the foregoing, a contractor/subcontractor ought to commit to EEO Spring housekeeping. It is the ideal time to inspect, collect new data, communicate with stakeholders, perform required analyses, update documents, and ultimately prepare and file the EEO-1 and VETS-4214 reports.
12) Prepare and Annually File the EEO-1 Report(s), VETS-4212 Report(s), and the AAP Certification(s)
For a prime or first-tier subcontractor who has at least 50 employees and an agreement valued at $50,000 or more, this year’s deadline for submitting to the EEOC the 2021 EEO-1 snapshot demographic data (Component 1) report(s) is June 21, 2022. The report(s) can be filed here.
For a prime contract or subcontract (regardless of tier) valued at $150,000 or more, this year’s deadline for submitting to DoL the VETS-4212 protected veteran employment report(s) is September 30, 2022. The report(s) can be filed here.
Additionally, brand new this year, any non-construction contractor/subcontractor that is obligated to have a written AAP (addressed above), “must certify, on an annual basis, whether they are meeting their requirement to develop and maintain annual AAPs.” The certification(s) must be to OFCCP on OFCCP’s Contractor Portal, available here. “OFCCP does not require uploading of AAP(s) during the certification process.” This year’s deadline is June 30, 2022.
“OFCCP is currently only requiring annual certification for supply and service contractors. Contractors that are only construction contractors and not also supply and service contractors are not required to certify compliance, and should not register for the portal.” However, to be clear, that does not relieve of construction contractor/subcontractor of its obligation to have an AAP if it is required to do so by Section 503 or VEVRAA.
OFCCP published a User Guide for registering and certifying, available here. It is also worth noting that, where included, FAR Clause 52.222-25 (Affirmative Action Compliance) includes an offeror check box representation that the offeror has written AAPs.
13) Check the Corporate Scheduling Announcement List (“CSAL”)
Periodically (and no less than annually), OFCCP posts a CSAL, which, in OFCCP’s words, “is a courtesy notification to contractors selected to undergo a compliance evaluation.” Basically, OFCCP publishes a list of contractors/subcontractors in an excel document, typically by AAP establishment, and that gives each contractor/subcontractor notice that it will undergo an OFCCP compliance evaluation. The list also specifies which type of evaluation the contractor/subcontractor will undergo (e.g., establishment review, FAAP review, Corporate Management Compliance Evaluation (“CMCE”), Section 503-focused review, VEVRAA-focused review, etc.).
OFCCP will also directly send to a contractor/subcontractor a Scheduling Letter (ideally, but not guaranteed, after the CSAL is published). Per OFCCP Directive 2022-02 (March 31, 2022), after receiving a Scheduling Letter, a contractor/subcontractor is supposed to have 30 calendar days to submit records pertinent to the type of evaluation being performed.
OFCCP characterizes a CSAL as merely a courtesy, because OFCCP’s actual legal notice obligation is the Scheduling Letter. Nonetheless, it is a useful courtesy because it will often give a contractor/subcontractor advance notice of the impending evaluation. And, in turn, give the contractor/subcontractor more time to prepare. On May 20, 2022, OFCCP published its latest CSAL (applicable to supply and service contractors), available here. Accordingly, as part of EEO Spring housekeeping, a contractor/subcontractor should be on the lookout for any OFCCP-issued CSAL.
Other Contractor/Subcontractor EEO Issues
Federal Ban the Box Requirements
The Fair Chance to Compete for Jobs Act of 2019 contained provisions applicable to Government contractors that are codified at 41 U.S.C. § 4714 and 10 U.S.C. § 4657. These provisions are implemented in solicitations and contracts issued after December 20, 2021.
Basically, “the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant.” Here, the notion is to give the once-convicted a chance to compete for employment and win over a potential employer before criminal background information is sought.
The law has exceptions—mainly, where other law requires the information to be obtained earlier, or where the position requires handling classified information. Nonetheless, the law takes a significant step in attempting to provide employment opportunities to rehabilitated Americans. In turn, as part of its EEO program, a contractor/subcontractor must implement hiring practices that comply.
Host Country Discrimination
Next, Executive Order No. 11,246, Section 503, and VEVRAA only apply to contracts/subcontracts performed in the U.S., or for employees performing outside the United States that were recruited in the U.S. Nonetheless, under FAR Clause 52.222-29 (Notification of Visa Denial)—which applies wherever FAR Clause 52.222-26 (Equal Opportunity) does, and “the contractor is required to perform in or on behalf of a foreign country[ ]”—the contractor/subcontractor still has EEO obligations. Particularly, the Clause states the following.
“It is a violation of Executive Order 11246 for a Contractor to refuse to employ any applicant or not to assign any person hired in the United States, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, or Wake Island, on the basis that the individual’s race, color, religion, sex, sexual orientation, gender identity, or national origin is not compatible with the policies of the country where or for whom the work will be performed (41 CFR 60-1.10).”
Moreover, “[t]he Contractor shall notify the U.S. Department of State, Assistant Secretary, Bureau of Political-Military Affairs (PM), 2201 C Street NW, Room 6212, Washington, DC 20520, and the U.S. Department of Labor, Deputy Assistant Secretary for Federal Contract Compliance, when it has knowledge of any employee or potential employee being denied an entry visa to a country where this contract will be performed, and it believes the denial is attributable to the race, color, religion, sex, sexual orientation, gender identity, or national origin of the employee or potential employee.”
Citizenship Status Discrimination
Finally, in Federal Government contracts, there is no general rule that a contractor/subcontractor only employ U.S. citizens and permanent residents (a.k.a., green card holders). Nonetheless, limitations may apply.
- For example, under export control regulations, absent an export control license, export-controlled information and items are not to be shared with someone who is not a U.S. person, and is a foreign national of a country for which a license is required. Basically, a U.S. person is a U.S. citizen, U.S. national (e.g., born in American Samoa), U.S. permanent resident, refugee, asylee, or a specific, temporary resident under Immigration Reform and Control Act of 1986 amnesty provisions. Sharing export-controlled technology with an unauthorized person, and the sharing occurs inside the U.S., is called, in export control parlance, a “deemed export.” An unlicensed deemed export is an export control violation.
- As another example, “[c]ontractors must make every effort to ensure that non-U.S. citizens are not employed in duties that may require access to classified information[,]” although, occasionally, “compelling reasons may exist to grant access to classified information to a non-U.S. citizen.”
- For a contractor/subcontractor handling controlled unclassified information (“CUI”), sometimes information is marked as “NOFORN” or “No Foreign Dissemination,” meaning that it cannot be disseminated to a foreign national.
- A contract itself may contain terms that limit individual involvement based upon citizenship or immigration status (e.g., HSAR Clause 3052.204-71(k) (Contractor Employee Access)).
In contrast to the preceding, the Immigration and Nationality Act of 1952 (“INA”) generally makes it unlawful for an employer to discriminate in hiring or firing based upon citizenship status. Citizenship status discrimination is not the same as national origin discrimination, unless the factual circumstances are such that citizenship status is merely a pretext for national origin discrimination. At the same time, an employer may discriminate based upon citizenship status if it is “otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government.” Importantly, the DOJ Civil Rights Division, Immigration & Employee Rights Section (“IER”), interprets this exception narrowly.
So, how does a contractor/subcontractor balance these competing obligations? Unfortunately, the solution may not be practical. Generally speaking, regardless of the nature of the position, applicants should not be limited to U.S. citizens and green card holders.
A recent example of this occurred with Aerojet Rocketdyne, Inc. at its Jupiter, FL facility. On May 17, 2021, Aerojet Rocketdyne settled with IER, and paid a $37,008 civil penalty, because it restricted (12) mechanic positions to U.S. citizens due to the mechanics handling export-controlled technology. In this type of circumstance, IER’s general view is that the contractor/subcontractor is supposed to, as needed, seek a deemed export license for the worker. As stated, may not be practical.
In addition to applicants not being limited to U.S. citizens and green card holders, IER states that it is a best practice to avoid asking applicants anything about their citizenship status, beyond “ask[ing] job applicants if they have the legal right to work in the United States and if they will need sponsorship for an employment visa.” Nonetheless, generally, it is okay to state the requirements of the job, and make clear that any job offer is contingent upon the applicant meeting the requirements. Further, contractors/subcontractors are obligated to “employ in the United States only individuals who are eligible to work in the United States[,]” and, at the appropriate time, use the I-9, and (as applicable), E-Verify processes.
EEO requirements have been a significant part of Government contracts since at least 1965. And the requirements are virtually ubiquitous, applying even to commercial service/item contractors/subcontractors. Hence, EEO is part of a contractor’s fundamental compliance.
The potential consequences for non-compliance include contract termination, being denied a contract award, suspension or debarment, having to implement costly remediation, having to make backpay payouts with interest, DOJ initiating suit, loss of goodwill, and increased risk of employee and/or union litigation.
There is no such thing as perfect compliance. Nonetheless, as in everything, good faith matters. So, as elaborate and tedious as some of the requirements may be, try.
Therefore, as stated, commit to doing the Spring housekeeping, including:
- Figure out who’s in charge;
- Review and update the EEO Policy Statement;
- Develop new hiring goals;
- Review and update the written AAP(s);
- Check the posters;
- Review the employee handbook;
- Ensure that all job solicitations include the Equal Opportunity Legend;
- Publish openings with appropriate job boards and recruitment sources, and evaluate the past year’s outreach and recruitment efforts;
- Inform the union;
- Check the subcontracts and subcontractors;
- Conduct the self-audit;
- Prepare and file the EEO-1 Report, VETS-4212 Report, and the AAP Certification(s); and
- Check the CSAL.
 41 C.F.R. §§ 60-300.44(a) and 60-741.44(a).
 41 C.F.R. § 60-4.3(a) ¶ 7(f)-(h).
 See OFCCP Construction Contractors Technical Assistance Guide (Oct. 2019), www.dol.gov (last viewed June 6, 2022), available at https://www.dol.gov/sites/dolgov/files/ofccp/Construction/files/ConstructionTAG.pdf.
 See OFCCP Supply and Service Contractors Technical Assistance Guide (Nov. 2020), www.dol.gov (last viewed June 13, 2022), available at https://www.dol.gov/sites/dolgov/files/OFCCP/SupplyService/files/508_sstag_12032020.pdf.
 See OFCCP Small Federal Contractor Technical Assistance Guide (Dec. 2020), www.dol.gov (last viewed June 13, 2022), available at https://www.dol.gov/sites/dolgov/files/OFCCP/CAGuides/files/SmallContractorsGuide-508_1222020.pdf.
 VEVRAA Hiring Benchmark, Important Terms, www.dol.gov (last viewed June 7, 2022), available at https://www.dol.gov/agencies/ofccp/vevraa/hiring-benchmark.
 41 C.F.R. § 60-741.45(a).
 41 C.F.R. § 60-2.14(b).
 41 C.F.R. § 60-2.15(b).
 FAR 22.810(f); FAR Clause 52.227-27(b).
 FAR Clause 52.222-27(b)-(d).
 DoL, Affirmative Action Frequently Asked Questions, May a contractor set quotas as a way to meet its affirmative action obligations?, www.dol.gov (last viewed June 7, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/AAFAQs.
 41 C.F.R. § 60-1.5(a)(7).
 DoL, Indian Preference FAQs, What is an Indian reservation?, www.dol.gov (last viewed June 7, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/indian-preference.
 DoL, Indian Preference FAQs, What OFCCP regulation allows federal contractors to afford an Indian preference?, www.dol.gov (last viewed June 7, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/indian-preference.
 DoL, Indian Preference FAQs, If I have qualified Native American and non-Native American applicants, do I have to consider all qualified candidates?, www.dol.gov (last viewed June 7, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/indian-preference.
 41 C.F.R. § 60-2.1(b); FAR 22.804.
 41 C.F.R. Part 60-4.
 41 C.F.R. Part 60-4.
 41 C.F.R. § 60-741.40(b)(1); while the AAP requirements under Section 503 and VEVRAA don’t apply to Federally assisted construction contractors and subcontractors, they do apply to direct Federal construction contractors and subcontractors.
 See Federal contractor affirmative action and related requirements, www.employer.gov (last viewed June 3, 2022), available at https://www.employer.gov/EmploymentIssues/Federal-contractor-requirements/Reporting/ (“You must also have an AAP under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) if you have 50 or more employees and at least one contract of $150,000 or more.”); see also 41 C.F.R. § 60-300.40(a).
 Federal contractor affirmative action and related requirements, www.employer.gov (last viewed June 9, 2022), available at https://www.employer.gov/EmploymentIssues/Federal-contractor-requirements/Reporting/ (“Additionally, while the AAP requirements under Section 503 and VEVRAA don’t apply to Federally assisted construction contractors and subcontractors, they do apply to direct Federal construction contractors and subcontractors.”).
 41 C.F.R. § 60-2.1(c).
 See Developing and Maintaining Establishment-Based Affirmative Action Programs for Campus-Like Settings Frequently Asked Questions, www.dol.gov (last viewed June 3, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/campus-settings#Q1.
 41 C.F.R. § 60-2.1(d).
 See also OFCCP Construction Contractors Technical Assistance Guide (Oct. 2019), www.dol.gov (last viewed June 3, 2022), available at https://www.dol.gov/sites/dolgov/files/ofccp/Construction/files/ConstructionTAG.pdf.
 41 C.F.R. § 60-2.10(a)(3).
 41 C.F.R. § 60-2.14(d).
 FAR 22.807(b)(1).
 FAR Clause 52.222-26(c)(3); see also 41 C.F.R. § 60-1.42 (notices to be included).
 41 C.F.R. §§ § 60-300.44(a) and 60-741.44(a).
 See OFCCP Postings & Notice Requirements, www.dol.gov, at 7 (last viewed May 31, 2022), available at https://www.dol.gov/sites/dolgov/files/ofccp/CAGuides/files/Postings&NoticesGuide-CONTR508c.pdf.
 See “EEO is the Law” Poster, www.eeoc.gov, available at https://www.eeoc.gov/employers/eeo-law-poster (“In most cases, electronic posting supplements physical posting but does not itself fulfill the employer’s basic obligation to physically post the required information in its workplaces.”).
 See FirstStep Poster Advisor, Results, www.webapps.dol.gov (last viewed May 31, 2022) available at https://webapps.dol.gov/elaws/firststep/results.htm?fs=CP0000000B0NN0000000NNNNYD00Y00Y0VA.
 41 C.F.R. § 60-741.44(a).
 FAR 22.805(b).
 See FirstStep Poster Advisor, www.webapps.dol.gov (last viewed June 2, 2022) available at https://webapps.dol.gov/elaws/posters.htm?_ga=2.61772271.2118856677.1654195505-1523792881.1654195505.
 41 C.F.R. §§ 60-300.44(g)(2) and 60-741.44(g)(2).
 See OFCCP Construction Contractors Technical Assistance Guide (Oct. 2019), at 26, www.dol.gov (last viewed June 6, 2022), available at https://www.dol.gov/sites/dolgov/files/ofccp/Construction/files/ConstructionTAG.pdf.
 FAR Clause 52.222-26(c)(4); see also 41 C.F.R. §§ 60-1.4(a)(2) and 60-1.41.
 FAR Clause 52.222-36(a) (Equal Opportunity for Workers with Disabilities); see also 41 C.F.R. § 60-741.5(a) ¶ 7.
 FAR Clause 52.222-35(b) (Equal Opportunity for Veterans); see also 41 C.F.R. § 60-300.5(a) ¶ 12.
 See OFCCP Federal Contract Compliance Manual, at 123, www.dol.gov (last viewed June 3, 2022), available at https://www.dol.gov/agencies/ofccp/manual/fccm; see also OFCCP Construction Contractors Technical Assistance Guide (Oct. 2019), at 10, www.dol.gov (last viewed June 6, 2022), available at https://www.dol.gov/sites/dolgov/files/ofccp/Construction/files/ConstructionTAG.pdf (“A contractor can use the phrase ‘equal opportunity employer’ or ‘EOE’ as a substitute for listing all the protected bases.”).
 41 C.F.R. § 60-300(f)(1)(i).
 41 C.F.R. § 60-300.5(a) ¶ 2
 “Employment service delivery system means a service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act.” 41 C.F.R. § 60-300.2(j).
 VEVRAA Hiring Benchmark, Important Terms, www.dol.gov (last viewed June 7, 2022), available at https://www.dol.gov/agencies/ofccp/vevraa/hiring-benchmark.
 DoL, Employer Guide to Hiring Veterans, www.dol.gov, at 7 (last viewed June 7, 2022), available at https://www.dol.gov/sites/dolgov/files/VETS/files/Employer-Guide-to-Hiring-Veterans.pdf.
 See 41 C.F.R. § 60-741.44(f)(1)(i).
 DoL, Hiring People with Disabilities, www.dol.gov (last viewed June 7, 2022), available at https://www.dol.gov/general/topic/disability/hiring.
 41 C.F.R. § 60-4.3(a) ¶ 7(b).
 41 C.F.R. § 60-4.3(a) ¶ 7(c).
 41 C.F.R. § 60-4.3(a) ¶ 7(e).
 41 C.F.R. § 60-4.3(a) ¶ 7(i).
 41 C.F.R. § 60-4.3(a) ¶ 7(j).
 41 C.F.R. §§ 60-300.44(f)(3) and 60-741.44(f)(3).
 FAR Clause 52.222-26(c)(6).
 41 C.F.R. §§ 60-300.44(g)(2)(ii) and 60-741.44(g)(2)(ii).
 FAR Clause 52.222-27(g)(6).
 See FAR 22.807(b)(1); FAR Clause 52.222-27(b); FAR Clause 52.222-35(c); FAR 22.1303(a); FAR Clause 52.222-36(b); FAR 22.1408(a).
 See 41 C.F.R. § 60-1.1 (“The regulations in this part apply to all contracting agencies of the Government and to contractors and subcontractors who perform under Government contracts, to the extent set forth in this part.”); see also id. at § 60-2.33 (preempting other law).
 See 41 C.F.R. §§ 60-4.3(a) ¶ 7(h), 60-300.44(f)(1)(ii), and 60-741.44(f)(1)(ii).
 Exec. Order No. 11,246 § 203(a).
 OFCCP Construction Contractors Technical Assistance Guide (Oct. 2019), at 12, www.dol.gov (last viewed June 7, 2022), available at https://www.dol.gov/sites/dolgov/files/ofccp/Construction/files/ConstructionTAG.pdf; see also 41 C.F.R. § 60-4.2(d) ¶ 3; FAR 22.804-2(b).
 FAR 22.804-2(b).
 41 C.F.R. § 60-4.3(a) ¶ 7(o).
 See FAR 22.805.
 See FAR 22.805(a)(4)(i); https://www.dol.gov/agencies/ofccp/pre-award/registry.
 See FAR 22.805(a)(7).
 41 C.F.R. § 60-2.17(b).
 DoL, Analysis of Contractor Compensation Practices During a Compliance Evaluation Frequently Asked Questions, www.dol.gov (last viewed June 9, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/compensation.
 See id.
 41 C.F.R. § 60-2.17(d).
 41 C.F.R. § 60-2.16(c).
 41 C.F.R. § 60-2.1(c); see also id. at §§ 60-300.40(c) and 60-741.40(b)(3).
 41 C.F.R. § 60-50.2(b)(3).
 41 C.F.R. § 60-4.3(a) ¶ 7(g).
 41 C.F.R. § 60-4.3(a) ¶ 7(l).
 41 C.F.R. § 60-4.3(a) ¶ 7(p).
 41 C.F.R. § 60-300.44(f)(3).
 41 C.F.R. § 60-300.44(k).
 41 C.F.R. § 60-300.45(b).
 41 C.F.R. § 60-741.44(f)(3).
 41 C.F.R. § 60-741.44(k).
 41 C.F.R. § 60-741.45(d)(3).
 41 C.F.R. Part 60-741, App’x B ¶ 14.
 See 41 C.F.R. § 60-300.1(b); FAR 22.1303(a); 80 Fed. Reg. 38,293, 38,298, No. 60 (Effective Oct. 1, 2015).
 OFCCP Contractor Portal, www.dol.gov (last viewed June 9, 2022), available at https://www.dol.gov/agencies/ofccp/contractorportal?utm_medium=email&utm_source=govdelivery#Access.
 Contractor Portal Frequently Asked Questions, Certification Q&A No. 10, www.dol.gov (last viewed June 9, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/contractorportal#g4.
 OFCCP Contractor Portal, www.dol.gov (last viewed June 9, 2022), available at https://www.dol.gov/agencies/ofccp/contractorportal?utm_medium=email&utm_source=govdelivery#Access.
 Contractor Portal Frequently Asked Questions, General Q&A No. 4, www.dol.gov (last viewed June 9, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/contractorportal#g4.
 OFCCP Contractor Portal, Federal Contractor User Guide (March 31, 2022 Version), www.dol.gov (last viewed June 9, 2022), available at https://www.dol.gov/sites/dolgov/files/OFCCP/aavi/Contractor-Portal-User-Guide.pdf.
 DoL, Corporate Scheduling Announcement List (CSAL) Frequently Asked Questions, Q&A No. 4, www.dol.gov (last viewed June 9, 2022), available at https://www.dol.gov/agencies/ofccp/faqs/scheduling-lists.
 41 U.S.C. § 4714(a)(1)(B); 10 U.S.C. § 4657(a)(1)(B).
 41 U.S.C. § 4714(a)(2)-(3); 10 U.S.C. § 4657(a)(2)-(3).
 See also FAR Clause 52.222-3(b) (Convict Labor) (“The Contractor is not prohibited from employing persons- (1) On parole or probation to work at paid employment during the term of their sentence; (2) Who have been pardoned or who have served their terms; or (3) Confined for violation of the laws of any of the States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, or the U.S. Virgin Islands who are authorized to work at paid employment in the community under the laws of such jurisdiction[.]”).
 FAR 22.807(b)(2) (“Contracts are exempt from the requirements of E.O.11246 for work performed outside the United States by employees who were not recruited within the United States.”); FAR Clause 52.222-26(a)(2) (“United States, means the 50 States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island.”); 41 C.F.R. § 60-300.4(a)(3) (“This part applies only to employment activities within the United States and not to employment activities abroad. The term ‘employment activities within the United States’ includes actual employment within the United States, and decisions of the contractor made within the United States pertaining to the contractor’s applicants and employees who are within the United States, regarding employment opportunities abroad (such as recruiting and hiring within the United States for employment abroad, or transfer of persons employed in the United States to contractor establishments abroad).”); id. at § 41-300.2(dd) (“United States, as used in this part, shall include the several States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and Wake Island.”); id. § 60-741.4(a)(3) (“This part applies only to employment activities within the United States and not to employment activities abroad. The term employment activities within the United States includes actual employment within the United States, and decisions of the contractor made within the United States, pertaining to the contractor’s applicants and employees who are within the United States, regarding employment opportunities abroad (such as recruiting and hiring within the United States for employment abroad, or transfer of persons employed in the United States to contractor establishments abroad).”); id. at § 60-741.2(dd) (“United States, as used herein, shall include the several States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and Wake Island.”).
 FAR 22.810(g).
 FAR Clause 52.222-29(b)(1).
 FAR Clause 52.222-29(b)(2).
 See 22 C.F.R. § 120.15; 15 C.F.R. § 772.1.
 32 C.F.R. § 117.10(k)(1) (NISPOM).
 See 8 U.S.C. § 1324b(a)(1).
 See, e.g., Stankovic v. Newman, 2013 WL 6842530, at 3 (D. Conn. 2013) (“Title VII does not protect against discrimination on the basis of citizenship status. Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86 (1973) (employer’s refusal to hire a person because he is not a United States citizen does not constitute employment discrimination on the basis of ‘national origin’ in violation of Title VII). An employer is permitted to consider citizenship in making employment decisions as long as citizenship is not a proxy for national origin.”).
 8 U.S.C. § 1324b(a)(2)(C); see also 28 C.F.R. § 44.200(b)(1)(iii).
 IER, Information for Employers About Citizenship Status Discrimination, at ¶ 4 (July 2018), available at https://www.justice.gov/crt/page/file/1080256/download.
 Id. at ¶ 3.
 See FAR 22.1802(a).
 See, e.g., 41 C.F.R. § 60-2.35 (“Each contractor’s compliance with its affirmative action obligations will be determined by reviewing the nature and extent of the contractor’s good faith affirmative action activities as required under § 60-2.17, and the appropriateness of those activities to identified equal employment opportunity problems.”).