Background
When I established my law firm in 2010, I wanted to find a way to fill a need for the federal contracting community. As I reflected on my own experience working with contractors in many different industries, I realized that the academic community was largely underserved by consultants and misunderstood by the enforcement agency, the Office of Federal Contract Compliance Programs (OFCCP). The regulations were developed for the supply and service sector, and in some instances, were difficult to apply to academic institutions. It was the square peg trying to fit in the round hole, and it wasn't working very well.
I decided to do something about it. During the ILG National Conference in 2010, I invited representatives from the academic compliance community to meet and discuss areas of concern. I later began working with the American Association for Affirmative Action (AAAA), which is now the American Association for Action, Equity and Diversity (AAAED). Dr. Inderdeep Chatrath (Duke University) and I began leading the discussion through AAAED, including several meetings with OFCCP officials.
In September 2011, Schuyler Affirmative Action Practice hosted a Listening Session on academic issues at the OFCCP office, which provided an opportunity for the academic community to speak directly to former OFCCP Director Shiu, and the leadership of OFCCP, about the challenges academic institutions face in complying with the regulations.
Seven years later, I proposed that AAAED should host a Listening Session. During the 2018 AAAED Annual Conference, held in Atlanta June 6-8, several members met with then Senior Advisor Craig Leen to discuss academic compliance issues and to request a Listening Session with OFCCP. During our discussion with him, Mr. Leen shared with us that OFCCP was developing an Academic Technical Assistance Guide, which would be helpful in addressing some of the issues we raised with him. And he agreed to hold an Academic Listening Session with AAAED.
OFCCP's Academic Listening Session with AAAED
On September 25, 2018, Acting OFCCP Director Leen and other OFCCP officials discussed the following areas of concern to academic institutions:
- Inclusion/Exclusion of positions from affirmative action plans
- Structure of academic affirmative action plans
- Compensation
- Recruitment
- Unknown race/ethnicity and/or gender
- Dual Appointments
The decision…provides little guidance in determining whether certain positions, filled by students, should be included in one's affirmative action plan. 
Academia has been struggling with issues of inclusion for years. In practice, many higher education federal contractors simply exclude all full-time students, regardless of the position they hold. Others include everyone who receives a "paycheck" from the institution. The rest fall somewhere in between these two extremes. There are no bright line rules. In fact, various government entities have provided conflicting guidance.
In 2014, OFCCP introduced the Darden1 factors as a means for clarifying inclusion issues, through the publication of a Frequently Asked Question (FAQ). The decision in Nationwide Mutual Insurance Co. v. Darden established several factors which are very useful in determining whether someone is an employee or a contractor, but it provides little guidance in determining whether certain positions, filled by students, should be included in one's affirmative action plan.
The Department of Labor's Wage and Hour Division chimes in:
On May 18, 2016, the Department of Labor's Wage and Hour Division issued "Guidance for Higher Education Institutions on Paying Overtime under the Fair Labor Standards Act (FLSA)," which provided clarification on some positions at academic institutions, stating that postdoctoral fellows and graduate teaching assistants should be considered employees, but that research assistants and student residential assistants (generally) should not be considered employees.
In January 2018, the Department of Labor issued revised Fact Sheet #71: "Internship Programs Under the Fair Labor Standards Act," which outlines a "primary beneficiary test" that courts use to determine whether an intern (or student) is an employee under the FLSA.
Many types of workers are not addressed in the guidance (i.e. undergraduate teaching assistants, graduate research associates, instructional officers, and work study students), but it provides some insight as to how the Department of Labor's Wage and Hour Division regards several classes of student employment.
The National Labor Relations Board (NLRB) chimes in:
On August 23, 2016, the NLRB, in The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia–GWC, UAW. Case 02–RC–143012, overturned a prior decision, Brown University, 342 NLRB 483 (2004), and defined "employees" to include graduate and undergraduate teaching assistants, graduate research associates, instructional officers, graduate fellows assistants, and work study students for the purposes of collective bargaining.
There is still more clarification needed regarding which workers to include in affirmative action plans.
Structure of Academic Affirmative Action Plans
Academic institutions typically include all buildings on a campus in one affirmative action plan. The regulations do not specifically endorse this practice. The regulations at CFR 60-2.1(b)(1) state that "Each nonconstruction contractor must develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees" and if it meets other threshold requirements. The OFCCP Directive 2013-01 Revision 1 defines "establishment" as:
- A facility or unit which produces goods or services, such as a factory, office, store, or mine. In most instances, the unit is a physically separate facility at a single location. In appropriate circumstances, OFCCP may consider as an establishment several facilities located at two or more sites when the facilities are in the same labor market or recruiting area. The determination as to whether it is appropriate to group facilities as a single establishment will be made by OFCCP on a case-by-case basis.
Compensation
During the Listening Session, we discussed how compensation systems in academia differ significantly from their supply and service counterparts. One of the most significant issues is the lack of comparators for a wide variety of positions. The Nobel Laureate, for example, has no comparator, as her compensation will always far exceed that of her counterparts in the same field of study.
Recruitment
While there are some supply and service industries that require last minute hiring, it is a common occurrence each semester at almost every academic institution. A high number of student registrants for a particular course may necessitate a short recruitment period, precluding the ability to provide the appropriate notice to fulfill OFCCP's posting requirements. Thus, academic institutions rely on waivers and other "search exceptions" to meet their hiring needs under these circumstances.
Spousal hires are unique to academia, but are quite common and considered part of the total package offered to talented faculty during the recruitment process. Such hires are not addressed in OFCCP's regulations as an exception to the posting requirement, so academia would benefit from clarity on this point, as well.
Unknowns in the workforce
While most supply and service contractors file an EEO-1 each year, academic institutions instead file a report for the Integrated Postsecondary Education Data System (IPEDS). One significant difference between the two reports, is the ability to provide unknown race/ethnicity for employees. There is resistance among members of the academic community to self-identify race, ethnicity, and/or sex in the limited categories provided. Many reject labels which are perceived as constraining and non-reflective of their individual circumstances, particularly in an environment in which everyone is encouraged to think more broadly.
There are two issues relevant to unknowns in the workforce. First, while OFCCP has informally indicated that there is some level of tolerance for unknowns in the workforce, there has been no official endorsement of this position. The regulations at 41 CFR 60-1.12(c) state, "For any record the contractor maintains pursuant to this section, the contractor must be able to identify the gender, race, and ethnicity of each employee." Academia would benefit from an acknowledgement from OFCCP that some level of unknowns in the workforce is unavoidable.
The second issue relates to analysis of data in which employees of unknown race/ethnicity and/or gender are included. One approach would be to exclude all employees from the analysis who do not specify both a race/ethnicity and gender. At the other end of the spectrum, an analysis might include unknowns as a separate race category. Both academia and non-academic federal contractors would benefit from guidance on this issue.
Dual appointments
Dual appointments occur when one employee has two or more sets of responsibilities, resulting in multiple listings on a roster of filled positions. During the Listening Session, guidance was requested on how to account for this set of multiple titles for a single employee when putting together the various analyses for the affirmative action plan.
Summary
The Listening Session, hosted by AAAED on September 25, 2018, provided callers with an opportunity to speak directly with Acting Director Leen and his staff. Those of us who develop affirmative action plans for academic institutions hope that the information discussed on the call will be useful to OFCCP as they finalize the Academic Technical Assistance Guide.
Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © Schuyler Affirmative Action Practice 2018.
1. Factors for determining whether a person is an employee or a contractor were provided in the opinion of the Supreme Court case of Nationwide Mutual Insurance Co. v. Darden, 503 US 318 (1992).