§ 60-40.8 Facilities and procedures for disclosure.

(a) Procedural matters such as where the information may be inspected, forms of requests, time for reply to requests, forms of denials, appeals from denials, and fees for special services and copying services, shall be controlled by the general regulations of the custodial agency except to the extent modified herein. (b) Procedures relating to the availability of records in the custody of the OFCC shall be governed by the Department of Labor regulations, 29 CFR 70.35 to 29 CFR 70.64.

(c) Copies of all requests for disclosure of information made directly to the Compliance Agencies shall be submitted to the OFCC within 5 calendar days of receipt. The compliance agencies shall thereafter allow 5 working days from the time the request is submitted to the OFCC for comment by the OFCC. Delay by the OFCC may be waived at the request of the compliance agency.

(d) The compliance agencies shall furnish the OFCC with copies of all initial actions by the agencies granting or denying a request for information. The OFCC shall be given an opportunity by the Compliance Agencies to consult on all appeals from initial decisions denying requests for information.

PART 60-50-GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION OR NATIONAL ORIGIN

Sec.

60-50.1 Purpose and scope.

60-50.2 Equal employment policy.

60-50.3 Accommodations to religious observance and practice.

60-50.4

60-50.5

Enforcement.

Nondiscrimination.

AUTHORITY: Sec. 201, E.O. 11246, 30 FR 12319, and E.O. 11375, 32 FR 14303. SOURCE: 38 FR 1933, Jan. 19, 1973, unless otherwise noted.

§ 60-50.1 Purpose and scope.

(a) The purpose of the provisions in this part is to set forth the interpretations and guidelines of the Office of Federal Contract Compliance regarding the implementation of Executive Order 11246, as amended, for promoting and insuring equal employment opportunities for all persons employed or seeking employment with Government contractors and subcontractors or with contractors and subcontractors performing under federally assisted construction contracts, without regard to religion or national origin.

(b) Members of various religious and ethnic groups, primarily but not exclusively of Eastern, Middle, and Southern European ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic groups, continue to be excluded from executive, middle-management, and other job levels because of discrimination based upon their religion and/or national origin. These guidelines are intended to remedy such unfair treatment.

(c) These guidelines are also intended to clarify the obligations of employers with respect to accommodating to the religious observances and practices of employees and prospective employees.

(d) The employment problems of blacks, Spanish-surnamed Americans, orientals, and American Indians are treated under Part 60-2 of this chapter and under other regulations and procedures implementing the requirements of Executive Order 11246, as amended. Accordingly, the remedial provisions of § 6050.2(b) shall not be applicable to the employment problems of these groups.

[38 FR 1933, Jan. 19, 1973; 38 FR 3511, Feb. 7, 1973]

§ 60-50.2 Equal employment policy.

(a) General requirements. Under the equal opportunity clause contained in section 202 of Executive Order 11246, as amended, employers are prohibited from discriminating against employees or applicants for employment because of religion or national origin, and must take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their religion or national origin. Such action includes, but is not limited to the following: Employment, upgrading, demotion, or transfer recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

(b) Outreach and positive recruitment. Employers shall review their employment practices to determine whether members of the various religious and/or

ethnic groups are receiving fair consideration for job opportunities. Special attention shall be directed toward executive and middle-management levels, where employment problems relating to religion and national origin are most likely to occur. Based upon the findings of such reviews, employers shall undertake appropriate outreach and positive recruitment activities, such as those listed below, in order to remedy existing deficiencies. It is not contemplated that employers necessarily will undertake all of the listed activities. The scope of the employer's efforts shall depend upon all the circumstances, including the nature and extent of the employer's deficiencies and the employer's size and resources. (1) Internal communication of the employer's obligation to provide equal employment opportunity without regard to religion or national origin in such a manner as to foster understanding, acceptance, and support among the employer's executive, management, supervisory, and all other employees and to encourage such persons to take the necessary action to aid the employer in meeting this obligation.

(2) Development of reasonable internal procedures to insure that the employer's obligation to provide equal employment opportunity without regard to religion or national origin is being fully implemented.

(3) Periodically informing all employees of the employer's commitment to equal employment opportunity for all persons, without regard to religion or national origin.

(4) Enlisting the assistance and support of all recruitment sources (including employment agencies, college placement directors, and business associates) for the employer's commitment to provide equal employment opportunity without regard to religion or national origin.

(5) Reviewing employment records to determine the availability of promotable and transferable members of various religious and ethnic groups.

(6) Establishment of meaningful contacts with religious and ethnic organizations and leaders for such purposes as advice, education, technical assistance, and referral of potential employees.

(7) Engaging in significant recruitment activities at educational institutions with substantial enrollments of students from various religious and ethnic groups.

(8) Use of the religious and ethnic media for institutional and employment advertising.

§ 60-50.3 Accommodations to religious observance and practice.

An employer must accommodate to the religious observances and practices of an employee or prospective employee unless the employer demonstrates that it is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business. As part of this obligation, an employer must make reasonable accommodations to the religious observances and practices of an employee or prospective employee who regularly observes Friday evening and Saturday, or some other day of the week, as his Sabbath and/or who observes certain religious holidays during the year and who is conscientiously opposed to performing work or engaging in similar activity on such days, when such accommodations can be made without undue hardship on the conduct of the employer's business. In determining the extent of an employer's obligations under this section, at least the following factors shall be considered: (a) Business necessity, (b) financial costs and expenses, and (c) resulting personnel problems. § 60-50.4 Enforcement.

The provisions of this part are subject to the general enforcement, compliance review and complaint procedures set forth in Subpart B of Part 60-1 of this chapter.

§ 60-50.5 Nondiscrimination.

The provisions of this part are not intended and shall not be used to discriminate against any qualified employee or applicant for employment because of race, color, religion, sex, or national origin.

PART 60-60-CONTRACTOR EVALUATION PROCEDURES FOR CONTRACTORS FOR SUPPLIES AND SERVICES

AUTHORITY: 5 U.S.C. 553(a) (3) (B), 29 CFR 2.7; sec. 201, E.O. 11246, 30 FR 12319, and E.O. 11375, 32 FR 14303.

SOURCE: 39 FR 5630, Feb. 14, 1974, unless otherwise noted.

§ 60-60.1 Purpose and scope.

SUBPART A-GENERAL

This part shall be known as "Revised Order No. 14" and is intended to establish standardized contractor evaluation procedures for compliance agencies, in their conduct of compliance reviews of contractors for supplies and services subject to the Equal Employment Opportunity Requirements of 41 CFR 60-1.40 and 41 CFR Part 60-2 (Revised Order No. 4) for the development of written affirmative action programs.

§ 60-60.2 Background.

(a) Each prime contractor or subcontractor with 50 or more employees and a contract of $50,000 or more is required to develop a written affirmative action program for each of its establishments (§ 60-1.40 of this chapter). If a contractor fails to submit an affirmative action program and supporting documents, including the workforce analysis within 30 days of a request therefor, the enforcement procedures specified in OFCC Order No. 4 (§ 60-2.2 (c) of this chapter) shall be applicable.

(b) Required affirmative action programs must contain a utilization analysis and goals and timetables as required in § 60-2.11 and § 60-2.12 of this chapter.

SUBPART B-PROCEDURES FOR CONTRACTOR EVALUATION

§ 60-60.3 Agency actions.

Basic steps. A contractor evaluation should proceed as follows: (1) A desk audit of the contractor's affirmative action program with special attention directed to the included workforce analysis, using the format set forth in the Standard Compliance Review Report, (2) an on-site review of those matters which still are not fully or satisfactorily addressed in the affirmative action program and workforce analysis, using the format set forth in the Standard Compliance Review Report and (3) where necessary, an off-site analysis of information supplied by the contractor during or pursuant to the on-site review. (The standard compliance review report will be published on or before the effective date of this part.) Contractors may reach agreement with their respective compliance agencies on nationwide AAP formats or on frequency of updating statistics with the approval of the Director of OFCC.

(a) Desk Audit. Using OFCC approved methods of priority selection, compliance agencies shall routinely request from among the Federal contractors within their jurisdiction affirmative action programs and supporting documentation, including the workforce analysis and support data for audit. As used throughout this part, the term "Affirmative Action Program (AAP) and supporting documentation" means the Required Contents of Affirmative Action Programs, as set forth in Subpart B of 41 CFR Part 60-2 and Methods of Implementing the Requirements of Subpart B, set forth in Subpart C of 41 CFR Part 60-2. "Workforce analysis" is defined as a listing of each job title as appears in applicable collective bargaining agreements or payroll records (not job groups) ranked from the lowest paid to the highest paid within each department or other similar organizational unit including departmental or unit supervision. If there are separate work units or lines of progression within a department a separate list must be provided for each such work unit, or line, including unit supervisors. For lines of progression there must be indicated the order of jobs in the line through which an employee could move to the top of the line. Where

there are no formal progression lines or usual promotional sequences, job titles should be listed by department, job families, or disciplines, in order of wage rates or salary ranges. For each job title, the total number of incumbents, the total number of male and female incumbents, and the total number of male and female incumbents in each of the following groups must be given: Blacks, Spanishsurnamed Americans, American Indians, and Orientals. The wage rate or salary range for each job title must be given. All job titles, including all managerial job titles, must be listed.

(1) Exceptions to the desk audit requirements. For pre-award reviews and for complaint investigations with the approval of the agency Contract Compliance Officer (as defined at § 60-1.6(b)), the desk audit need not be carried out or an abbreviated desk audit may be performed and an immediate on-site review performed. Special reports that meet the criteria in (b) (1) below may be requested from contractors, as required, for submission to the agency for complaint investigations and follow-up reviews performed within 1 year of a full compliance review. The Director may approve other special compliance reviews when the circumstances require an immediate on-site review.

(b) On-site review. If upon selection of an AAP and included workforce analysis for desk audit, the compliance agency finds that the material submitted does not demonstrate a reasonable effort by the contractor to meet all the requirements of subparts B and C of Order No. 4 (Part 60-2 of this chapter) the onsite review need not be carried out and the enforcement procedures specified in Order 4 shall be applicable. Otherwise following a desk audit of the affirmative action program and supporting documentation the agency will schedule an on-site review of the establishment, provided, that an on-site review need not be carried out when the agency can determine that the contractor's affirmative action program is acceptable. This determination must be based on the current desk audit and an on-site review conducted within the preceeding 24 months and also must include an affirmative determination that the circumstancés of the previous on-site review have not substantially changed.

(1) Each agency is to request from those contractors scheduled for on-site reviews that information necessary to perform the review be made available on-site. Specifically, this includes (i) information necessary to conduct an indepth analysis of apparent deficiencies in the contractors utilization of women or minorities, (ii) information required for a complete and thorough understanding of data contained in or offered as support for the affirmative action program and (iii) information concerning matters relevant to a determination of compliance with the requirements of Executive Order 11246 (as amended), but not adequately addressed in the affirmative action program. However, the contractor should be requested to furnish only the specific items of information which the compliance officer determines are:

(a) Necessary for conducting the review and completing the standard compliance review report, and

(b) Not contained in or able to be derived from the material submitted by the contractor.

(2) In order to pursue certain issues uncovered in the compliance review, it may be necessary for the compliance officer to request certain additional information on-site even though such data have not been previously identified. Such additional information must also meet the above criteria.

(c) Off-site analysis. Where necessary, the compliance officer may take infor mation made available during the on-site review off-site for further analysis. An off-site analysis should be conducted where issues have arisen concerning deficiencies or an apparent violation which, in the judgment of the compliance officer, should be more thoroughly analyzed off-site before a determination of compliance is made.

SUBPART C-DISCLOSURE AND REVIEW OF CONTRACTOR DATA

60-60.4 Confidentiality and relevancy of information.

(a) Desk audit data. If the contractor is concerned with the confidentiality of such information as lists of employees, employee names, reasons for termination and pay data, then alphabetic or numeric coding or the use of an index of pay and pay ranges are acceptable for desk audit purposes.

(b) On-site data. The contractor must provide full access to all relevant data on-site as required by § 60-1.43 of this chapter.

(c) Data required for off-site analysis. The contractor must provide all data determined by the Compliance officer to be necessary for off-site analysis pursuant to § 60-60.3 (c) above. Such data may only be coded if the contractor makes the code available to the compliance agency. If the contractor believes that particular informatoin which is to be taken off-site is not relevant to compliance with the Executive Order, the contractor may request a ruling by the agency Contract Compliance Officer. The contract compliance officer shall issue a ruling within 10 days. The contractor may appeal that ruling to the Director of OFCC within 10 days. The Director of OFCC shall issue a final ruling within 10 days. Pending a final ruling, the information in question must be made available to the compliance officer off-site, but shall be considered a part of the investigatory file and subject to the provisions of paragraph (d) below. The agency shall take all necessary precautions to safeguard the confidentiality of such information until a final determination is made. Such information may not be copied by the agency and access to the information shall be limited to the compliance officer and agency personnel involved in the determination of relevancy. Data determined to be not relevant to the investigation will be returned to the contractor immediately.

(d) Public access to information. Information obtained from a contractor under Subpart B will be subject to the public inspection and copying provisions of the Freedom of Information Act, 5 U.S.C. 552. Contractors should identify any information which they believe is not subject to disclosure under 5 U.S.C. 552, and should specify the reasons why such information is not disclosable. The Contract Compliance Officer will consider the contractors claim and make a deter mination, within 10 days, as to whether the material in question is exempt from disclosure. The contract compliance officer will inform the contractor of such a determination. The contratcor may appeal that ruling to the Director of OFCC within 10 days. The Director of OFCC shall make a final determination within 10 days of the filing of the appeal. However, during the conduct of a compliance review or while enforcement action against the contractor is in progress or contemplated within a reasonable time, all information obtained from a contractor under Subpart B except information disclosable under §§ 60-40.2 and 60-40.3 of this chapter is to be considered part of an investigatory file compiled for law enforcement purposes within the meaning of 5 U.S.C. 552(b)(7), and such information obtained from a contractor under Subpart B shall be treated as exempt from mandatory disclosure under the Freedom of Information Act during the compliance review.

(e) Examination and copying of documents. Nothing contained herein is intended to supersede or otherwise limit the provisions contained in part 60-40 of this chapter for public access to information from records of the OFCC or its various compliance agencies.

§ 60-60.5 Employee interviews.

The compliance officer should contact, where appropriate, a reasonable number of employees for interviews as part of the on-site review of the contractors' employment practices. The number, scope and manner of conducting such interviews should be discussed in advance with the contractor.

§ 60-60.6 Exit conference.

(a) Upon completion of the on-site review (and off-site analysis, if one is undertaken) the compliance officer should schedule an exit conference with contractor officials to review the findings of the review. This exit conference should itemize the apparent violations that lend themselves to immediate correction, and solicit the contractor's agreement to take adequate corrective action by specified dates. The contractor's commitments should be contained in a written conciliation agreement signed at the exit conference. However, in cases where the apparent deficiencies require further analysis subsequent to the on-site review, the compliance officer will advise the contractor of the areas of concern, secure the data necessary to his ultimate compliance determination, complete the review later by notifying the contractor in writing of all apparent violations found, and obtain the contractor's commitments in a written conciliation agreement to correct such deficiencies.

(b) The contractor may at any time avail himself of the provisions of § 60-1.24 (c) (4) of this chapter which provides as follows:

When a prime contractor or subcontractor, without a hearing, shall have complied with the recommendations or orders of an agency or the Director and believes such recommendations or orders to be erroneous, he shall, upon filing a