New OFCCP Veterans and Disabilities Regulationsshared.littler.com/tikit/2014/14_Webinars/PDF/3-18... · Subpart D: The final regulations explicitly allow OFCCP to extend the temporal

New OFCCP Veterans and Disabilities Regulations

1

CCP

Overview

Section 503 of the Rehabilitation Act of 1973 ─ Applies to contractors with a covered Federal contract or subcontract

≥ $10,000 ─ Covered contractors and subcontractors with 50 or more employees

and a Government contract or subcontract ≥ $50,000 must develop and maintain a written §503 affirmative action program

─ Applies to supply and service and federal direct construction contractors (not federally-assisted construction contractors)

─ Implementing regulations are at 41 CFR Part 60-741

© Littler Mendelson 2

Overview

Vietnam Era Veterans’ Readjustment Assistance Act of 1974 ─ Applies to contractors with a covered

Federal contract or subcontract ≥ $100,000. • Alternative jurisdictional criterion for

contracts entered into prior to entered into before December 1, 2003 are no longer practically relevant

─ Applies to supply and service and federal direct construction contractors (not federally-assisted construction contractors)

─ Implementing regulations are at 41 CFR Part 60-300


Different implementation dates

Seven items need to be ready to go by March 24, 2014 because they are not associated with Subpart C of the regulations

The remainder of the obligations need to be complied with on or before the start date of your next affirmative action plan cycle, when that cycle starts again after March 24, 2014 ─ April 1 to March 31 cycles: start immediately ─ July 1 to June 30 cycles: three more months to get ready ─ January 1 to December 31 cycles: nine more months to get

ready


The Seven Items for March 24

1. Replacing the old “covered veteran” catch-all term with the new “protected veteran” catch-all term, and replacing the old “other protected veteran” with the new term “active duty wartime or campaign badge veteran” on intranet pages, handbook pages, and the like. ─ Everything EXCEPT the self-id form and the actual EEO

policy itself, both of which are “subpart C” requirements ─ The next time the top US executive has to re-issue the

policy, it needs to be updated


What MUST be in a Policy

top U.S. Executive’s support for the AAP provide for an audit and reporting system assign responsibility for implementation state, among things, that the contractor will recruit, hire,

train . . etc. without regard to veteran/disability status include the non-harassment/non-retaliation language (optional to have it in the policy itself) provide that the

nonconfidential portions of the AAP may be available upon request by contacting (insert name) during ___ hours. [it has to be communicated; not mandatory that it be in the same document that the executive signs]


Number Two

2. Advertisement language and tag line changes:

• EOE AA M/F/Vet/Disability • “Qualified applicants will receive consideration for

employment without regard to their race, color, religion, national origin, sex, protected veteran status or disability”


Number three

3. Insert new flow-down language in contracts entered into on or after 3/24/14 that places downstream vendors and suppliers on notice of their subcontractor obligations


Required Language for Purchase Orders and Subcontracts (VEVRAA)

The following language must be included in bold typeface in subcontracts and purchase orders:

“This contractor and subcontractor shall abide by the

requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and

requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment

qualified protected veterans.”


Required Language for Purchase Orders and Subcontracts (§503)

The following language must be included in bold typeface in subcontracts and purchase orders:

“This contractor and subcontractor shall abide by the

requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in

employment qualified individuals with disabilities.”


Who is “Covered”?

The VEVRAA Clause only applies to contracts ─ of $100,000 or more ─ For goods or services necessary to the

performance of the government contract

The §503 Clause only applies to contracts ─ In excess of $10,000 ─ For goods or services necessary to the

performance of the government contract


Can the Clauses be Made Conditional?

Example 1 ─ If Applicable, this contractor and

subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). . . .

Example 2 ─ The following provision applies to contracts of

$100,000 or more for goods or services necessary to the performance of a government contract: this contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). . . .


What about the EO 11246 Flow Down?

May combine Executive Order clause with vet and disability clauses “provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO "incorporation by reference" clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:

This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.


Number four

4. Job postings with employment service delivery system (state job board) (veteran obligation) ─ Identify as a federal government contractor ─ Request priority referrals from state of protected veterans for job

openings at all locations in the state ─ Provide the name and location of EACH hiring location within the

state AND the contact information for the contractor official responsible for hiring at each location • Could be chief hiring official, HR contact, senior management

contact or any other manager who can verify the information in the job listing and receive priority referrals

─ If you use recruiting firms, temp agencies, search firms, contractor must provide the contact information for those agencies, too.


Important side note about job listing

President’s proposal to revise the overtime exemption criteria will affect the scope of this listing

Currently, before the OT exemption change, all jobs must be posted to the employment service delivery system except ─ Temp jobs listing 3 days or less ─ Jobs filled internally (no external candidates) ─ Executive and senior management jobs

• Includes individuals compensated at not less than $455 per week

• When this $455 threshold increases, so do the types of jobs that federal contractors must list


Numbers 5 and 6

Posting of notice to advise applicants and remotely-located employees about their rights

5. Intranet: [Company] is an Equal Opportunity Employer that complies with the laws and regulations set forth in the following EEO Is The Law Poster: http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost.pdf

6. Electronic Applicant Tracking System (ATS) landing page/home page: [Company] is an Equal Opportunity Employer that complies with the laws and regulations set forth in the following EEO Is The Law Poster: http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost.pdf


http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost.pdf




More on 5 and 6

Must be in a conspicuous location and format on the company’s intranet or sent by email to employees who do not work at the employer’s physical location

Contractor must ensure that applicants or employees who are disabled, including disabled veterans, are provided the notice in a form that is accessible and understandable to the disabled veteran (e.g., providing Braille or large print versions of the notice, posting the notice for visual accessibility to persons in wheelchairs, providing the notice electronically or on computer disc, or other versions)

Accessibility notice on the ATS – alternate means to apply if applicant cannot use ATS


Seventh Item for March 24

7. Update record retention policies to 3 years ─ Not every record is subject to a 3 year retention ─ Not Executive Order ─ Very difficult to design a policy that specifies what records

may be kept for 2 versus 3 years ─ Best practice – keep for one year longer than OFCCP requires


Not really a ball in your court, but not Subpart C either . . .

Subpart D: The final regulations explicitly allow OFCCP to extend the temporal scope of desk audits beyond the period set forth in the scheduling letter if OFCCP deems it necessary to its investigation of potential violations of the VEVRAA or §503 regulations ─ OFCCP has not similarly revised its EO 11246 regulations to permit

such a temporal expansion of audit authority • Nevertheless, DOL’s Administrative Review Board found such

an expansion to be lawful in OFCCP v. Frito-Lay, Inc. (ARB, May 8, 2012), a decision now on appeal in federal court

Pre-award reviews now include Vets and Disability reg compliance ($10M or more)


What are the other compliance obligations –the ones in Subpart C?

The remainder of the obligations set forth in this presentation are tied to the contractor’s annual affirmative action plan cycle and are known as the Subpart C obligations

They include ─ Benchmarking veteran hires across an AAP at 8% ─ Setting job group by job group, plan by plan, 7% disability goals ─ Extending a pre-offer (applicant) self identification of veteran and

disability status, in addition to the existing post-offer self-id ─ Conducting a one-time survey of the employee population for

disability status (repeated every five years) ─ Collecting data on applicants, hires, vacancies, and jobs filled ─ Assessing the contractor’s good faith efforts at meeting the

veteran hiring benchmark and the disability utilization goal


Hiring Benchmark for Veterans

Examines the representation of veterans among the employer's hires

Establishing the Benchmark ─ OFCCP will publish and

annually update a hiring benchmark based on the national percentage of veterans in the civilian labor force

─ Currently 8% of hires per AAP ─ Alternatively, contractors may establish their own hiring

benchmark in accordance with OFCCP guidelines


Calculating the Benchmark

Contractors may set their own benchmarks taking into account: ─ The average percentage of veterans in

the civilian labor force in the state(s) where the contractor is located over the preceding three years, as calculated by the Bureau of Labor Statistics and published on the OFCCP website

─ The number of veterans, over the previous four quarters, who were participants in the employment service delivery system in the state where the contractor is located, as tabulated by the Veterans' Employment and Training Service and published on the OFCCP website


Calculating the Benchmark

─ The applicant ratio and hiring ratio for the previous year, based on the data collected by the contractor for its affirmative action plan data analyses

─ The contractor's recent assessments of the effectiveness of its external outreach and recruitment efforts

─ Any other factors, including but not limited to the nature of the contractor's job openings and/or its location, which would tend to affect the availability of qualified protected veterans


Assessment of Outreach and Recruitment

Contractors must annually review protected veteran hiring for the current and prior two plan years to assess external outreach and recruitment efforts and inform or direct its veteran outreach and positive recruitment efforts

Hiring may be assessed across the contractor’s AAP workforce rather than job group by job group


Utilization Goal for Individuals with Disabilities

Established by OFCCP at 7% in 2014 ─ Subject to future revision

Used to assess the representation of individuals with disabilities within the employer's existing workforce, similar to the way placement goals have worked under affirmative action plans for women and minorities

Goal is job group by job group, within each AAP, unless you are a small company with a total population of 100 or less. If 100 or less, goal is across the workforce.


Utilization Analysis

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Special Issues for Construction Contractors ─ They do not develop or use job

groups

─ The employee survey taken at a moment in time is not reflective of their total workforce, which changes from project to project and season to season

─ Being challenged in the courts

Inviting Applicants to Self-Identify

Contractors will be required to solicit protected veteran and disability status information at the applicant stage ─ The scope of the obligation will be the

same as the existing applicant solicitation obligations for gender and race/ethnicity information • Must invite every Internet Applicant to

voluntarily self-identify as a protected veteran and/or an individual with a disability


Veteran Pre-Offer Invitation to Applicants

Contractors may define/explain the four "protected" veteran categories but must invite the applicant to self-identify simply as a "protected veteran"

As a reminder, the four protected veteran categories are: ─ Armed Forces service medal veteran ─ Disabled veteran ─ Recently separated veteran ─ Active duty wartime or campaign badge veteran

On the pre-offer form: three choices (possibly 4) On the post-offer form: seven choices (possibly

8)


Veteran Self-Identification

Pre-offer: ─ I am a protected veteran ─ I am not a protected veteran ─ I choose not to self-identify

Post-Offer: ─ I am a recently separated veteran (discharge date) ─ I am an Armed Forces Service Medal veteran ─ I am a disabled veteran ─ I am an active duty wartime or campaign badge veteran ─ I am a protected veteran, but I decline to specify the category ─ I am not a protected veteran ─ I choose not to self-identify


I am a veteran, just not protected

Some employers participate in other veteran outreach initiatives, like Hire a Hero, Helmets to Hard Hats, 100,000 Jobs for Veterans

Those campaigns credit employers for hiring veterans beyond just protected veteran

Optional question recognizes service ─ I am a veteran but not a protected veteran


Invitation to Applicants (Veterans Status)

Contractors may develop their own forms provided that the form ─ States that the information

• Is being requested on a voluntary basis • Will be kept confidential • Will not be used in a manner inconsistent

with the law

─ States that the refusal to provide status will not subject the applicant to any adverse treatment


Active-Duty Wartime or Campaign Badge Veteran

At least for now, there has been no corresponding change to the VETS-100A form, where this category continues to be labeled as "Other Protected Veterans“ but VETS issued a NPRM in February 2014

VETS is required by law to disclose employers’ VETS-100A data

VETS wants to move to a post-offer, one category choice, not an every category choice ─ I am a protected veteran ─ I am not a protected veteran ─ I choose not to self-identify


Additional Issues with OFCCP Drafted Forms


Invitation to Self-Identify Disability (Pre-Offer and Post-Offer and Survey)

You HAVE to use the OFCCP’s form for the pre-offer self-id, the post-offer self-id, and the every-five-year survey ─ http://www.dol.gov/ofccp/regs/compliance/sec503/Volunta

ry_Self-Identification_of_Disability_CC-305_SD_Edit1.24.14.pdf

Coming very soon in Spanish


http://www.dol.gov/ofccp/regs/compliance/sec503/Voluntary_Self-Identification_of_Disability_CC-305_SD_Edit1.24.14.pdf




Building the Form into an ATS

May contractors create an electronically fillable copy of the form used to invite voluntary self-identification of disability? ─ Yes, contractors may create an electronically fillable version

of the form used to invite self-identification provided that form meets certain requirements. The e-form must: • Display the OMB number and expiration date; • Contain the text of the form without alteration • Use a sans-serif font, such as Calibri or Arial; and • Use at least 11-pitch for font size (with the exception of

the footnote and burden statement, which must be at least 10-pitch in size).


Invitation to Self-Identify (Pre-Offer and Post-Offer and Survey)


Using the Form in Hard Copy

Cover memo Translate cover memo into multiple languages based

on typical applicant pool Direct the applicant NOT to circle on of the examples

of a disability Direct the applicant not to write his or her disability

on the form What do you do with the form if the applicant circles

a disability or writes down something else?


Reasonable accommodation

“If an applicant identifies himself or herself as an individual with a disability or a disabled veteran in the post-offer self-identification . . . the contractor should inquire of the applicant whether an accommodation is necessary, and if so, should engage with the applicant regarding reasonable accommodation.”

Should, not shall Decide what your process will be


Invitation to Employees (Disability Only)

Contractors must invite all of their current employees to voluntarily self-identify as an individual with a disability within the first year after the new regulations become effective and at least every five years thereafter

At least once between each five-year resurvey, contractors must also remind employees that they may voluntarily update their disability status information


To summarize

Pre-offer veteran form – contractor develops Post-offer veteran form – contractor develops Pre-offer disability form – OFCCP’s form Post-offer disability form – OFCCP’s form This year, and once every five years thereafter survey

– OFCCP’s form Must begin doing this on the first day of your NEXT

AAP plan year cycle Should consider taking the baseline employee survey

sooner rather than later; use transition year wisely


Data Collection and Analysis

Contractors must annually analyze ─ Number of job openings ─ Number of jobs filled ─ Number of applicants for all jobs ─ Number of applicants who

self-identified as or are otherwise known to be individuals with disabilities and protected veterans

─ Number of applicants hired ─ Number of applicants with disabilities

and protected veteran applicants hired


Data Collection and Analysis

For each AAP, not job group by job group What is an opening and what is a fill?

─ The total number of job openings refers to the number of individual positions advertised as open in a job vacancy announcement or requisition. For example, if one job vacancy announcement or requisition includes 5 open positions and results in 4 hires, the contractor would document this as 5 job openings and 4 jobs filled.

What is the difference between a fill and a hire? ─ Jobs "filled" refers to all jobs the company filled by any means, be it

through a competitive process or non-competitively, e.g., through reassignment or merit promotion. It, therefore, should take into account both new hires into the company and those employees who were placed into new positions via promotions, transfers, and reassignments. In contrast, the number of those "hired" refers solely to those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions.


Promotion, Transfer, Reassignment

Must be able to distinguish between competitive and noncompetitive decisions in the HRIS/payroll system

Competitive, multiple applicant pool Competitive, single incumbent Noncompetitive Progress towards a goal typically does not include

intra-job group “fills”


Start Tracking in the Next AAP Cycle; Report Out in Two Cycles

End of the year worksheet tab - should have complete values for disability (Yes, No, Choose Not to Self-identify). You will not have complete information on veterans (only those hired since 2007)

Selections: disability and veteran status filled in completely (for disability: Yes, No, Choose Not To Self-Identify) (for Veterans: Disabled, Recently Separated, Armed Forces Service Medal, Active Duty Wartime, Not a Veteran, Choose Not to Self-Identify)

Applicants: disability and protected veteran status filled in completely (Yes, No, Choose not to self-identify)

Vacancy-filling movement: Distinguish between competitive and noncompetitive “fills.” A fill could be a transfer, a promotion, a new hire, a reassignment. A “hire” is a competitive selection.


Contractor Outreach Efforts and Action-Oriented Programs

The final regulations continue to permit a flexible, open-ended approach to outreach and action-oriented programs, consistent with the current version of the VEVRAA and §503 regulations as well as the EO 11246 regulations

One mandatory: annual letter to subcontractors, including subcontracting vendors and suppliers (.44(f)(1)(ii)) © Littler Mendelson 46

Contractor Outreach Efforts and Action-Oriented Programs

Activities must be documented ─ Contractors must prepare an annual

written assessment of the effectiveness of each activity

─ Contractor’s conclusion as to the effectiveness of its outreach efforts must be reasonable as determined by OFCCP

If the contractor’s efforts have not been effective, it must identify and implement alternative efforts


Reminder: Audit and Reporting System

Shall design and implement an audit and reporting system that will ─ Measure the effectiveness of the contractor’s affirmative action program ─ Indicate any need for remedial action ─ Determine the degree to which the contractor’s objectives have been

attainted ─ Determine whether known protected veterans and individuals with

disabilities have had the opportunity to participate in all company sponsored educational, training, recreational and social activities

─ Measure the contractor’s compliance with the affirmative action program’s specific obligations and

─ Document the actions taken to comply with the obligations set forth in the preceding five subsections (3 year record retention)


Revise the Notice on the Bulletin Boards and the Intranet

“Applicants and employees may view the non-confidential portions of the affirmative action plans for individuals with disabilities and veterans upon request by contacting [insert]. The plans may be viewed in Human Resources from [start time] to [end time].”

Alternatively, “The full affirmative action program for individuals with disabilities and veterans, absent the data metrics, is available to any employee or applicant for employment for inspection upon request. The plans may be viewed in Human Resources from [start time] to [end time.]”


When Should We Start?

The requirements under the new regulations will go into effect on March 24, 2014, however compliance with Subpart C is not mandated until the employer’s first new AAP cycle, after March 24, 2014

Subpart C includes: ─ The plan documents themselves ─ All new self-identification solicitation requirements ─ Hiring benchmarks for protected veterans ─ Utilization goals for individuals with disabilities ─ All of the new data collection and analysis requirements

Employers with April – March AAP years will need to be ready by April 1, 2014. Employers with calendar year AAPs will not have to begin these new processes until January 2015


Implementation Checklist (page 1 of 4)

HR/Recruiting ─ Applicant tracking system

• Identify all screen shots that solicit self-identification • Identify all pages that include definitions • How will you store the notice of employee rights with the data?

[300.5(a)(9); 741.5(a)(4)] • Try to track “How did you hear about us” /Referral source

─ In the database that collects the self-identification data, what is the protocol if the person checks “yes”?

─ Can the ATS database PLEASE start interacting with the payroll or HRIS database?

─ New hire forms • Revise Self Identification Forms to include new language and new

definitions (once the OFCCP releases its form) • Re-solicit “How did you hear about us” / Referral source

─ Identify all policies, handbooks, intranet pages that define the veteran categories and update them

─ Revise the AAP narratives to be compliant with the new regulations


Checklist (page 2 of 4)

HR/Recruiting (continued) ─ Ensure that you are able to provide “Actual notice to people with

disabilities” [e.g., Braille] ─ Ensure that the required notice language is in all advertisements and

solicitations ─ Change the signs relating to AAPs for vets and disabilities being available

upon request to: “absent the data metrics” upon request, or non-confidential data portions will be made available

─ Identify all personnel involved in recruitment, screening, selection, promotion, disciplinary and related processes and ensure they are trained

─ Confirm that the state workforce agency job bank or local employment service delivery system has each job listed and that each posting has the contractor official responsible for hiring listed in the advertisement

─ Send out the annual notices of company AA policy to all subcontractors (see accounts payable below) and, if applicable, to unions

─ Determine when and how you are going to do the first annual disability survey of the population and ensure the confidentiality of responses © Littler Mendelson 52

Checklist (Page 3 of 4)

Legal ─ Revise the affirmative action policy – (300.43; 741.43)

[Subpart C] ─ Subcontracts – work with procurement determine which

ones are necessary to the performance of the prime contract or assume obligations of the direct contractor

─ Decide whether to include the flow down clauses in all contracts, or make that determination on an individual contract basis

─ Update record retention policies (reminder “current year” and two “prior plan years”)

─ Prompt for reasonable accommodation or not?


Checklist (Page 4 of 4)

Procurement ─ Incorporate the new EO flow-down language into covered

contracts

Accounts Payable ─ Produce list of all subcontractors, including subcontracting

vendors and suppliers (to whom letters will be sent annually advising them of your AA policy) [Subpart C; 300.44(f)(1); 741.44(f)(1)]

─ Research the ones where you don’t have a human to contact (e-billing)


Alissa Horvitz OFCCP Practice Group Co-Chair [email protected]

Josh Roffman [email protected] Lance Gibbons [email protected]

George Chaffey OFCCP Practice Group Co-Chair [email protected]

David Goldstein [email protected] William Weissman [email protected]


Contact Information

mailto:[email protected]




Documents

New OFCCP Veterans and Disabilities Regulationsshared.littler.com/tikit/2014/14_Webinars/PDF/3-18... · Subpart D: The final regulations explicitly allow OFCCP to extend the temporal