Tony Pickell`s Presentation Here

October 23, 2013
© 2013 by Precision Planning. These materials may not be reproduced, transmitted, or
distributed without the express written consent of the author. They are for training only
and are not to be considered legal advice.
Today’s Presenter
Tony Pickell
6215 Meridian Street West Drive
Indianapolis, Indiana 46260
[email protected]
What Was Changed
• Individuals with Disabilities Regulation (Section 503)
changes revise 41 CFR Part 60-741
• Veteran Regulation (VEVRAA) changes revise 41 CFR Part
60-300 & rescind 41 CFR Part 60-250
• Significant changes to:
– Self-identification of applicants, hires and current workforce;
– Outreach, self-assessment and documentation;
– Metrics and benchmarks/goals for veteran and individuals with
disabilities (IWD representation in your workforce
• Applicable to supply & service and construction
contractors, but excludes federally assisted contracts
• IWD Regs - $10K or more contract
• Vet Regs - single contract of $100K or more
• Consider evaluation of contracts and applicability
Effective Date
• March 24, 2014
• AAPs in place on the effective date of the final rule
remain unchanged until the next AAP period
• Companies with April – March AAP years will need to
have compliant AAP by April 1, 2014
• Consider earlier renewal of annual AAP if current
AAP expires shortly after regulation effective date
Effective Date
• Compliance with Subpart C not mandated until your first new AAP cycle,
after March 24, 2014. Compliance with other Subparts by March 24,
• Subpart C includes:
– The AAP documents
– New self-identification solicitation requirements
– Hiring benchmarks for protected veterans
– Utilization goals for individuals with disabilities
– New data collection and analysis requirements
• Many may choose to implement changes before next AAP renewal, but
AAPs renewed after effective date will contain only partial-year data for
veterans and IWD for first year
• OFCCP estimated costs for implementing both
regulations are:
– $11,380 - $16,836 per company for first year, or
– $3,075 - $4,550 per facility for first year
• While actual costs may vary, it is clear there will
increased compliance costs and you should ask for
additional funds now
6 Areas of Change
AAP content
Data collection and analysis
• Changes to definition of who is an IWD and
accommodation bring regulations in line with existing
law under ADAAA - Not new law
• “Other Protected Veteran” category name changed to
“Active Duty Wartime or Campaign Badge Veteran”
– Definition is the same
– Update self-id forms, ATS and HRIS accordingly
– Vets-100A form continues to use “Other Protected Veteran”
AAP Required Contents
Required AAP Contents same for vets and IWD:
Policy Statement
Review of personnel processes
Physical and Mental Qualifications
Reasonable accommodation to physical and mental limitations
External dissemination of policy, outreach, and positive recruitment
Internal dissemination of policy
Audit and reporting system
Responsibility for implementation
Training (New)
Data Collection Analysis (New)
AAP Required Contents
Policy Statement:
• EO policy must be provided to IWD in an accessible
form (i.e. large print, electronically, etc.)
• Top US official's support needs to be referenced in
AAP Required Contents
Physical and Mental Qualifications:
• Must identify a schedule for when periodic review of
Physical & Mental qualifications for a job are reviewed
• Recommend this be done at the time a position is posted
• Beware of basic qualification knockout questions that do
not consider possible accommodations (i.e.
lifting/standing requirements) - not new, but likely to get
increased OFCCP scrutiny
AAP Required Contents
External dissemination of policy, outreach, and positive
• Assess effectiveness of outreach/recruitment efforts for a period of
3 years
• Strongly recommend you track recruitment/referral source and
evaluate effectiveness of each source used as part of your
evaluation process
• Also consider current and prior 3 years of applicant/hire data as
part of your assessment (but only include current year data in AAP)
AAP Required Contents
Internal dissemination of policy:
• Must still make AAP available to applicants
and employees, but can exclude metrics/data
• Recommend structuring your AAP in a way
that makes exclusion of this data easier
AAP Required Contents
Audit and reporting system:
• Contractors must now establish benchmarks/goals for
first time and evaluate attainment:
– Veterans: May use OFCCP’s current 8% hiring benchmark for
entire workforce (not by job group) or use cumbersome
alternate method to set benchmark
– IWD: 7% utilization goal (not hiring goal) by job group unless
fewer than 100 ee's then may conduct a single analysis for
entire workforce
AAP Required Contents
Audit and reporting system:
• Evaluate goal/benchmark attainment (8% vet hiring
for whole workforce and 7% utilization in each job
group for IWD)
• Standard for goal attainment is likely “any
difference”, but less than 1 person difference may be
acceptable in some situations
AAP Required Contents
Audit and reporting system:
• Per OFCCP, difference between a goal and a benchmark is that
"a benchmark is only used to measure progress and is not a
reasonably attainable target"
• Recommended language for veteran benchmark assessment:
"National benchmark data includes all veterans in the civilian
labor force, not just veterans protected by VEVRAA.
Accordingly, it is not surprising [Company's] hiring of
protected veterans does not meet the benchmark established
by the OFCCP."
AAP Required Contents
Training (New Section):
• All personnel involved in the recruitment, screening, selection, promotion,
disciplinary, and related processes shall be trained to ensure that the
commitments in the contractor’s affirmative action program are
• Translation = Review EEO policy, discuss goal attainment, that Company is
AA employer and that it takes measures to recruit diverse candidates
including veterans and individuals with disabilities
AAP Required Contents
Data Collection Analysis (New Section):
Must report on the following for entire workforce (not by EEO-1 Category or
job group):
# of total applicants
# of total hires
# of IWD/Veteran applicants
# of IWD/Veteran hires
# of openings
# of jobs filled
OFCCP says it will not use veteran and IWD data to conduct impact analyses
Data Collection and
3 year record retention requirement only applies to
outreach, outreach assessment and metrics, not
applications, interview notes, etc, which still follow 2
year retention requirement
However, practically speaking many contractors will
now simply keep everything for 3 years
Notice to employees and applicants of Affirmative Action policy still required
Post on Company bulletin board
Electronic posting acceptable when employees do not work at a physical location if
computer access provided or the contractor has actual knowledge that such
employees otherwise are able to access the notice
Actual knowledge does not require knowing an employee has accessed, only that
he/she could (i.e. e-mailed to employee, posted on intranet, etc.)
Notice must be posted online as part of an ATS in a “conspicuous” manner or emailed
• Affirmative action policy must be either in handbook or otherwise
made available to employees (recommend not including in
handbook as federal contractor status may change)
• Notify union of policy that company is an affirmative action
employer and include a non-discrimination statement
• Written notification of company policy related to its affirmative
action efforts to subcontractors, vendors and suppliers used to be
recommended, but is now required
• Additional dissemination is suggested by the OFCCP, but not
mandated (i.e. publishing in annual reports, etc.)
• Requires EO tagline to include "protected veteran status" or "an
abbreviation thereof" and reference to individuals with disabilities
• Note: abbreviation language in vets preamble, but not IWD
• Nevertheless, it appears as if minimum EO tagline will now be "EOE
• Required for all external job postings
EO clause reference language modified
Recommend adding “when applicable” in lieu of evaluating which contracts,
subcontracts and purchase orders are covered
Shortest EO clause reference now possible (must be in bold):
“When applicable, this contractor and subcontractor shall comply with the EEO Clause
in Section 202 of Executive Order 11246, as amended, which is incorporated herein by
specific reference.
When applicable, this contractor and subcontractor shall abide by the requirements of
41 CFR 60-741.5(a) and 41 CFR 60-300.5(a). These regulations prohibit discrimination
against qualified individuals on the basis of disability and against qualified protected
veterans, and require affirmative action by covered prime contractors and
subcontractors to employ and advance in employment qualified individuals with
disabilities and qualified protected veterans.“
Self Identification
• Pre and Post-offer self-id now required
• Self-id information may not be kept with application, resume,
personnel file or medical file. Should be kept in "data
analysis" file (i.e. HRIS and ATS systems)
• Pre-offer self-id administered at same time as race/gender
consistent with internet applicant rule (update ATS
Self Identification
• IWD self-id language is prescribed by OFCCP. Form sent to OMB for
approval in September can be viewed at following link, but should not yet
be used:
• Final, approved form will be published to OFCCP's webpage when
• Same form will be used for pre and post self-identification as well as selfidentification of workforce
Self Identification
• Veteran pre-offer and post-offer self-id language recommended by
OFCCP can be found at Appendix B to Part 60-300 of final rule
– Categories listed and defined, but only self-id as "protected veteran" not
for specific category on pre-offer
– Post offer self-id is for specific category
– Recommend tailoring veteran self-id closely to OFCCP suggested language
– Recommend adding "I choose not to identify“ as option on form
– Do not include Uniformed Services Employment and Reemployment
Rights Act (USERRA) language in pre-offer self-identification as only
applicable to employees
– Consider asking new hires if they are a veteran (even if not protected) as a
possible metric against benchmark
Self Identification
Disability Status Only
• Self-id entire workforce during first year subject to
regulations, which means completed by 3/24/2015 at latest
• Repeat every 5th year
• Interim reminder in between that employees may
change/update/self-id at any time
Self Identification
Disability Status Only
• May count an IWD as disabled even if he/she declines to selfid if:
– Disability is obvious
– Disability is known
• Recommend alerting administrators of FMLA, disability,
benefits, etc. of this provision
• State Employment Service notification still required
• State posting must be provided to state in state's desired format
– Third party may be engaged, but still contractors liability
• State posting must
– request priority referrals of veterans
– indicate company is a "VEVRAA Federal Contractor“
– identify "contractor official" (can be official or HR contact) and hiring
location for first posting and then update/provide only when changed
– provide contact information for any outside job search companies (temp
agencies, etc.) assisting with hiring process
• Note: some of this information is requested by state services as part
of the online registration process, but not all and not in all states
• Outreach must be substantive and just sending an e-mail won't
cut it!
• Documentation of outreach may include
– The number and types of outreach and recruitment events attended,
groups targeted and types of participants as well as when/where event
occurred, who conducted and who attended from Company
– Notes/memo of in person meetings and facility tours
– Notes of phone discussions
– Copies of notices to sources for job openings
Additional Implementation
Contact Precision Planning to receive a complimentary implementation
guide, which includes:
– Implementation Checklist detailing necessary changes to reach compliance with new
– Veteran pre-offer and post-offer self-id language recommended by OFCCP
– Draft OFCCP disability status self-id form (Note: Do not use – not yet approved by OMB)
– Sample EO Clause language for Contracts, Subcontracts and Purchase Orders
– Sample written notification of company policy related to its affirmative action efforts to
subcontractors, vendors and suppliers
– Listing of OFCCP Recommended Outreach and Recruitment Activities
Tony Pickell
Precision Planning
6215 Meridian Street West Drive
Indianapolis, Indiana 46260
[email protected]