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EEO and Affirmative Action Update
National Contract Management Association
March 13, 2013
Stan Koper and Catherine Gray
Agenda
New requirement under FAR for service
contracts
OFCCP proposed regulations
AAP best practices
What to expect from the OFCCP
Non-Displacement of Qualified
Workers Under Service Contracts
Executive Order 13495 (1/30/2009)
It is the policy of the Federal Government that service contracts and
solicitations for such contracts shall include a clause that requires the
contractor, and its subcontractors, under a contract that succeeds a
contract for performance of the same or similar services at the same
location, to offer those employees (other than managerial and
supervisory employees) employed under the predecessor contract
whose employment will be terminated as a result of the award of the
successor contract, a right of first refusal of employment under the
contract in positions for which they are qualified. There shall be no
employment openings under the contract until such right of first refusal
has been provided.
Non-Displacement of Qualified
Workers Under Service Contracts
29 CFR Part 9 implementing Executive Order
Applies to all new solicitations after
January 18, 2013
All service contracts above the simplified
threshold of $150,000 and their solicitations
except those excluded, that succeed
contracts for the same or similar service at
the same location.
Non-Displacement of Qualified
Workers Under Service Contracts
The definition of service contract or contract means any contract or subcontract for services entered into by the Federal Government or its contractors that is covered by the McNamara-O’Hara Service Contract Act of 1965 (SCA), as amended, 41 U.S.C. 6701 et seq., and its implementing regulations.
Non-Displacement of Qualified
Workers Under Service Contracts
Contracting agency requirements
Contract Clause
Notice
Disclosures
Actions on complaints
Report contents
Non-Displacement of Qualified
Workers Under Service Contracts
The Contracting Officer shall provide the
incumbent contractor’s list of employees to
the successor contractor and, on request, to
employees or their representatives. See 29
CFR 9.12(e) and 48 CFR 22.1204.
Non-Displacement of Qualified
Workers Under Service Contracts
Right of first refusal
May not fill employment opening under the
contract prior to making good faith offers of
employment
To employees employed under the successor
contract:
– Who are qualified for positions
– Whose employment will be terminated as a result of
the reward or the expiration of the contract
Non-Displacement of Qualified
Workers Under Service Contracts
Obligation to offer right of first refusal exists
even if the successor contractor has not
been provided with a list of the predecessor
contractor’s employee, or if an employee’s
name was left off the list
Non-Displacement of Qualified
Workers Under Service Contracts
Bona fide express offer of employment
Establish time limit for response, but not
less than 10 days
May be for a different job or position
May be for different terms and conditions
so long as not intended to deter employee
from accepting in order to hire someone
else
Non-Displacement of Qualified
Workers Under Service Contracts
Termination of employment after
commencement of contract may be
evidence that it was not a bona fide offer of
employment
Non-Displacement of Qualified
Workers Under Service Contracts
Nondisplaced employees
Successor’s current employees
Non-service employees
Employee’s past unsuitable service
Non-federal work
Reduction in staffing levels
Non-Displacement of Qualified
Workers Under Service Contracts
30 days prior to the end of a contract, the
contractor must furnish the Contracting
Officer with a list of the names of all service
employees working under the contract and
any subcontract at the time the list is
submitted
Non-Displacement of Qualified
Workers Under Service Contracts
Exclusions:
Executive, administrative, and professional employees exempt under 29 CFR 541.
Contracts or subcontracts for services under the simplified acquisition threshold.
Contracts for commodities or services produced or provided by the blind or severely handicapped, and agreements for vending facilities operated by the blind.
Exclusions Continued
Guard, elevator operator, messenger, or
custodial services provided to the federal
government under contracts with sheltered
workshops employing the severely
handicapped.
Federal service work constituting only part
of employee’s job.
Contracts exempted by Federal Agency.
Non-Displacement of Qualified
Workers Under Service Contracts
Recordkeeping
Wage and Hour Division Investigations
Exhaustion of administrative remedies
Status of Proposed Regulations for
Veterans and the Disabled
Goals for hiring
Self-identification
Recordkeeping
Possible Timing
Best Practices
Executive Order 11246/Section 503 of the
Rehabilitation Act of 1973
Over $10,000
Aggregate or single contract
Obligations:
Post EEO Poster
Include Contract Clause in subcontracts
Applicants and Employees protected
» By Race/Ethnicity, Gender, Disability
Best Practices
$50,000 or More
Single Contract (includes Bills of Lading, Blanket
Purchase Orders)
Obligations
Same as $10,000 Plus
Develop Affirmative Action Program
For Minorities/Women/Disabled
Goals for Minorities, Women
Outreach, Positive Recruiting for Disabled
Best Practices
Vietnam Era Veterans’ Readjustment Assistance
Act (38 U.S.C. 4212)
$100,000 or more
Single Contract
Covered Veterans:
• Other Protected (served in war or receive
campaign or expeditionary badge)
• Recently Separated (three years)
• Armed Forces Service Medal Veterans
Best Practices
Vietnam Era Veterans’ Readjustment Assistance Act
– (38 U.S.C. 4212)
– Obligations
• List all jobs with local State Employment Office
• Outreach, Positive Recruiting for Veterans
• Applicants/Employees Protected by Veteran
Status
Best Practices
Executive Order Program
– Goals/Good Faith Efforts
– Personnel Activity Analysis
• Applicant Flow, Hires, Promotions,
Terminations
– Recordkeeping: Accurate, Comprehensive
– Compensation Analysis
• Qualitative vs. Quantitative
Best Practices
Vets/Disabled Affirmative Action Programs
– Two Recruiting Sources for Veterans
– Two Recruiting Sources for Disabled
– Establish Personal Relationship with Each
– Invitation to Self-Identify
• Disabled/Disabled Veterans at Hire
• Other Covered Veterans at Hire or Before
What to Expect
OFCCP Audits 4,000 -4,500 Locations Annually
Out of 285,000 Contractor Establishments
• Works out to 1.5% Chance of Selection
If Selected, What Next?
Scheduling Letter
AAP and Supporting Documentation
30 Day Response Time
What to Expect
The Full Desk Audit
– Extensive Data Requests
– Policies, Practices, Procedures
– Filing VETS-100A?
– EEO-1 Reports?
– Personnel Activity Reports • Applicants, Hires, Promotions, Terminations
– Goal Attainment, Good Faith Effort
What to Expect
Examine Differences in Selection
– Male or Female, Minority or non-Minority
• Reasons for non-Selection: Hires, Promotions
• Reasons for Termination
Outreach, Recruitment Efforts
– Documentation of Contacts with Agencies
• Proof of Job Listing
Maternity Leave
Verify Self-Identification Procedures
What to Expect
A Long Time to Complete Audit
Incessant, Often Detailed Data Requests
Short Turn-Around Times Demanded
Long Periods of Inactivity, Followed by New Demands
Closure with Conciliation Agreement
– Most with Insufficient Outreach
– Many with Inadequate Recordkeeping,
Documentation
– Some with Financial Remedies
• Mostly Failure to Hire
Questions?
Stan Koper
Senior Vice President
Gaucher Associates
50 Oliver Street, Suite 212
North Easton, MA 02356
617-965-3589 [email protected]
Catherine Moreton Gray
Attorney
McCarter & English, LLP
CityPlace I
185 Asylum Street
Hartford, Connecticut 06103
860-275-6709 [email protected]