AboutJohn Fuller Expertise I can answer questions pertaining to Affirmative Action, how an affirmative action plan is developed, definitations included within an affirmative action plan, goals versus quotas, misperceptions, rolling out the affirmative action plan with specific action items and areas that are action items. I can answer questions pertaining to Civil Rights violations, investigations of violations and methods and means to be proactive to ensure awareness of civil rights. I am not an attorney and cannot answer or provide information relating to legal, court-related, or case law.
Experience Experience in the area
Diversity,EEO, and Affirmative Action Officer for Johns Hopkins Hospital
EEO, Ethics, and Affirmative Action Officer for Fortune 300
Deputy Director, Equal Opportunity for the Department of Defense
Equal Opportunity Management Institute
Organizations
Board of Directors, National Council for Support of Disability Issues
Board of Direcdtors, Institute for MultiTrack Diplomacy
Maryland Association of Affirmative Action Officers
Publications
Guest expert discussing discrimination, sexual harassment in the workplace and affirmative action on over 45 radio stations nationwide
Education/Credentials
Doctor of Education
Master of Science, Leadership & Business Ethics
Master of Arts, Education
Virginia and Florida Supreme Court Certified Mediator
Department of Defense Certified Mediator
Expert: John Fuller Date: 6/5/2008 Subject: Functional Affirmative Action Plans
Question Hello Mr. Fuller,
I am currently presenting a proposal to restructure my company's corporate plans. I am petitioning the OFCCP to allow me to develop Functional AAPs instead of the Standard AAPs.
My question may be two-fold. First, are you aware of any companies using the Functional AAPs. I’m wondering about the process – what is the OFCCP interpretation of “somewhat autonomous” activities. My company has approximately 8,000 employees in 13 plans (or establishments). However it is difficult to set feasible placement goals and make accountability measures when one “establishment” can contain employees under different hiring managers. My job groups also contain job titles which do dissimilar tasks. I figure that restructuring the AAPs to line up the employees along their direct lines of management and activities will resolve many issues. But not many companies are doing this and the directive has been in effect since 2002. Do you know of any companies that have been burned by restructuring their people (the groups tends to make the employee pool larger, hence greater potential for systemic findings). Is it difficult to convince the OFCCP that your units are truly distinct and functional?
Answer Hi Tara,
Your situation is not as difficult as it appears on paper. I am very familiar working with functional AAPs since I use them at Johns Hopkins. I have six establishments to work with and understand your situation.
As far as placement goals, that goal is the goal that is derived as you know from the workforce analysis, reasonable recruiting area, and availability of qualified people for the position. You can certainly place the accountability where it belongs regardless of the location of the hiring manager. In that way, it brings the goal to reality stage and may actually create new ideas for recruiting and retention from those hiring managers who may have felt before they were isolated from accountability due to their geographical distance. Your idea of restructuring the AAPs to line up the employees is the current thought amongst AA practioners so you are on the righ track there. I would not be concered with the OFCCP in how you set up your functional AAP as much as getting it to work right for you so you should go ahead and request this from them. One of the best sites from DOL to answer your question regarding somewhat autonomously is: http://www.dol.gov/esa/media/reports/ofccp/directive/02aapdir.htm
You should have both sides of this functional/establishment AAP opinion. I do want to present the other side of functional versus establishment AAPs for you and a law firm I worked with for several years has this opinion:
"Despite these events, contractors should not scrap their establishment AAPs just yet for several reasons. First, the OFCCP may not accept the proposed structure. Second, even if the OFCCP approves, submitting a formal application for an exception may put the company on the OFCCP's audit "radar screen." Finally, the Agency has stated that although "a contractor may receive permission to use functional or business unit affirmative action programs, OFCCP could still conduct an evaluation of a facility at a single geographic location." See 41 C.F.R. 60-2.1(d)(4). This means that despite approving the functional plan structure, the OFCCP could still "turn around" and insist upon review of any given facility included within the FAAP. The OFCCP's option to audit a single facility included in a broader "functional" plan poses significant risks because the OFCCP may identify compensation or employee selection problems -- resulting in significant monetary exposure -- at the facility level that may not be apparent in the "functional" plan. Furthermore, the Directive fails to articulate any standards that the OFCCP may use to insist upon a facility-specific audit."
So you can see that it may or may not be difficult to convince the OFCCP. I was able to do so and feel that you will also. You just have to feel right in what you are doing given its complexity.
The American Bar Association has another good summary on OFCCP fundamentals:
I do not know of any restructuring efforts that have resulted in compliance violations from the OFCCP as long as sthey were done without any obvious disparate treatment of protected categories. I understand what you say about the greater potential for systemic findings however, your thoughts are in line with this not being the case.
If you have any additional questions, please feel free to submit. Good Luck!
