Affirmative Action Plans/OFCCP CompliancePublications

March Comes in Like a Lion: Flurry of Action Steps Mandated for Government Contractors and Subcontractors

March 31, 2014Articles

The Office of Federal Contract Compliance Programs (OFCCP) issued new regulations, which went into effect on March 24, 2014, which impact data collection and analysis for veteran and disabled job candidates and employees. A summary of the action steps that federal contractors and subcontractors covered by Section 503 of the Rehabilitation Act, as amended (“Section 503”) and the Vietnam Era Veterans Readjustment Assistance Act ("VEVRAA") must take are provided below:

  1. Covered contractors must improve the effectiveness of the requirement of listing job openings with the appropriate state or local employment service agency. In this vein, covered contractors must ensure that the reporting of openings are in a format that the Employment Service Delivery System (“ESDS”) can access and use to make job listings available to protected veteran job seekers. For example, if the ESDS requires electronic transmission through a Web-based form, covered contractors must provide the job listings in that format. (As always, covered contractors must be able to prove the job openings were posted.) 
  2. When providing the listing of openings, covered contractors must inform each ESDS, as of the first job opening after 3/24/2014, that it is a federal contractor or subcontractor requesting priority referrals of protected veterans for job openings. Additionally, the address of each hiring location in the relevant state, as well as an HR contact who can verify information and receive referrals, must be provided. If the covered contractor uses outside job search companies (recruiters or temporary agencies) the outside company’s contact information must be provided so that the state can send the referrals to those outside agencies.
  3. Continue to post the “EEO is the Law Poster” in conspicuous places which are available to employees and applicants. A new poster which incorporates the new changes effective March 24 should be available soon on the DOL’s website at http://www1.eeoc.gov/eeoc/publications. The poster must be accessible and understandable. Also, as a reasonable accommodation to the disabled, alternate formats (Braille, large print, audio recording etc.,) may be ordered from the EEOC at 202-663-4191. Providing the poster in an alternate format is a form of reasonable accommodation. Therefore, making the poster available in such alternate format is required only when an applicant or employee requests the poster in such format, or when it is known that an applicant or employee is unable to read the poster because of a disability.

    NOTE: For remote employees, you can satisfy the posting obligation by posting electronically so long as the posting is accessible (e.g., e-mailed to employees or accessible on the company’s intranet).

    If an electronic application process is used, the EEO is the Law poster must be included as part of the electronic application. Such must be conspicuously stored with, or as part of, the electronic application. 
  4. If applicable, covered contractors must notify union officials of its EEO policy and commitment to affirmative action and non-discrimination against persons with disabilities and protected veterans. 
  5. Covered contractors must include new language in bold font in purchase orders/contracts/subcontracts. 
  6. Covered contractors must add language to the EOE Job Posting Tagline: In all solicitations/advertisements for employees, a statement must be included that all qualified applicants will receive consideration for employment without regard to their veteran status or on the basis of disability. 
  7. Covered contractors are encouraged but not required to develop a written procedure for processing requests for reasonable accommodation for disabled applicants and employees. 
  8. Covered contractors must keep any employment or personnel record made or kept for two (2) years after the record was made or the personnel action was taken, whichever is later. (The retention obligation is one year for contractors with fewer than 150 employees or a contract of less than $150,000.)

    There is a three (3) year retention period that applies to the new records which must be kept regarding applicants, hires, outreach/recruitment and benchmark/goal data for protected veterans and disabled individuals as part of the new written Affirmative Action Plan (AAP) requirements which are discussed below.

In addition to the personnel action steps set forth above, contractors and subcontractors who meet the higher dollar contract threshold amounts (under Section 503 a single contract or subcontract of $50,000 or more, and under VEVRAA a single contract or subcontract of $100,000 or more) and which have 50 or more employees , must prepare and update annually a written AAP for disabled individuals and protected veterans. Such covered contractors and subcontractors must abide by the new regulations for preparing compliant written AAP’s for individuals with disabilities and protected veterans as of the contractor’s next AAP year.

A summary of the obligations applicable to such covered contractors are set forth below: 

  1. Update AAP annually. 
  2. Make narrative sections available to employees or applicants upon request. Location and hours must be posted at each establishment. 
  3. Post affirmative action policy statement on bulletin boards. The notice must be accessible and understandable. 
  4. Invite applicants to self identify as protected veterans during the pre-offer stage. (Covered contractors do not need to begin using the new pre-offer self identification form until the next plan date, however the OFCCP encourages contractors to begin using it earlier). 
  5. Invite applicants to self identify as disabled at the pre-offer stage. The form prescribed by the OFCCP is the only form which can be used. These forms must be separate from the application and kept in a separate confidential AAP file. 
  6. In addition to the pre-offer invitation, contractors must invite applicants to self identify post offer as protected veterans and disabled. 
  7. Contractors must also invite employees to self identify as an individual with a disability every five years, beginning the first year the contractor becomes subject to the self identification requirements. In addition, at least once during the five year span, reminders to employees that they may voluntarily update their disability status at any time must be provided. 
  8. Periodically review personnel processes for effectiveness and determine whether they screen out protected veterans or disabled. 
  9. Create a schedule for periodic review of all physical and mental job qualifications to ensure any qualifications that eliminate applicants are job related and consistent with business necessity. 
  10. Send written notice to all subcontractors of the policy. 
  11. Develop a procedure against harassment due to protected veteran status. 
  12. Include the EEO policy in your manual or otherwise make it available. 
  13. Train all personnel involved in selection (i.e., hiring, promotions, etc.) about EEO and affirmative action obligations. 
  14. Collect and maintain the following records for three (3) years:
    The number of applicants who self identify as protected veterans or disabled.
    The total number of job openings and total number of jobs filled.
    The total number of applicants for all jobs.
    The total number of protected veterans and disabled applicants hired.
    The total number of applicants hired.
  15. Establish an annual hiring benchmark of protected veterans using 8% across the workforce.
    On March 21, 2014 the OFCCP posted the Benchmark Database required by the new regulations implementing VEVRAA. Federal contractors should use the VEVRAA Benchmark Database when establishing a hiring benchmark for protected veterans as required by 41 CFR 60-300.45. The database includes the annual national percentage of veterans in the civilian labor force for contractors that choose to use this number as their benchmark. It also includes data on the percentage of veterans in the labor force in each State and the number of veterans who participate in each State’s employment service, for use by those contractors choosing to develop an individualized benchmark.
    To help contractors use this database, OFCCP provides detailed user instructions and examples illustrating how a contractor could use the database to set an individualized VEVRAA benchmark.
  16. Set an annual utilization goal of hiring 7% disabled individuals in each job group. (For contractors with fewer than 100 employees, the measurement of the representation can be across the workforce instead of in each job group.) 
  17. Undertake appropriate outreach activities designed to recruit disabled individuals and protected veterans.

If you believe you are a government contractor or subcontractor and desire more information, please contact Colleen Lewis at [email protected]