Memorandum
U.S. Department of Transportation
Federal Highway Administration

While the Federal Highway Administration does not require that contractors have a "separate" recall policy with respect to their EEO policy obligations, State Transportation Agencies may require that contractors include recalls in their employment practices policy. The relevant citations to support this position include the following:

In a May 17, 2004, Memorandum from HCR, "Clarification of Contract Compliance Responsibilities under Title 23 U.S.C. 140: Under B.4: Contractor's Employment Practices," it is stated that, "Information on new hires, rehires, name requests, and recalls for the entire review period should also be obtained....While it is the contractor's prerogative to select who will be hired, recalled, rehired, or name requested, it is also the contractor's responsibility to ensure equal employment opportunity for minorities and women."

In addition, the following relevant text is from a June 2, 1983, document, "Contract Compliance—Equal Employment Opportunity in Construction After Seasonal Shutdown in Union Areas" from the former FHWA Chief Counsel, Donald Ivers: "Allowing contractors to exhaust an informally maintained recall list where there is no obligation to do so would perpetuate patterns of discrimination and offer no relief to minorities and women held at bay by continual reliance on a facially neutral but discriminatory tool, especially where contractors cannot demonstrate that reasonable available avenues of recruitment have been exhausted."

The relevant section in document FHWA-1273 that addresses the contractor's requirements with respect to an EEO policy, and that indicate that the nondiscrimination provisions extend to the contractor's employment practices, solicitations for employment, selection of subcontractors and suppliers, and procurement of materials is the following:

Section II.1.b.: "The contractor is required to have an EEO policy that prohibits discrimination and provides for affirmative action in employment practices. The contractor shall adopt the following statement as his hiring policy:

'It is the policy of this company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin, age, or disability. Such action shall include: 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, pre-apprenticeship, and/or on-the-job training.'"

Further, if the State's procurement procedures include such a recall policy for State funded contracts, then the State would need to require that Federally funded contracts also include a recall policy.

FHWA acknowledges that circumstances related to recall differ from State to State with respect to actual equal employment opportunities for minorities and women. Therefore, while FHWA does not require that contractors have a "separate" recall policy statement or assurance, a State Transportation Agency may require that contractors include recalls in their employment practices policy.

If you need additional information, please do not hesitate to call Lisa MacPhee at 202-366-1392 or Candace Groudine at 202-366-4634.