Jackson Lewis Presents
for
The INDUSTRY LIAISON GROUP
2012 National Conference
Veterans Affirmative Action Requirements:
The New Rules
Mickey Silberman
(303) 225-2400
silbermanm@jacksonlewis.com
Jennifer L. Seda
www.jacksonlewis.com
(303) 225-2411
sedaj@jacksonlewis.com
ABOUT JACKSON LEWIS
Jackson Lewis LLP is dedicated to representing
management exclusively in workplace law and related
litigation. With 48 offices and almost 700 attorneys
nationwide, the firm has a national perspective and
sensitivity to the nuances of regional business
environments.
Guided by the principle that a positive work environment
results in enhanced morale and increased productivity,
the firm devotes a significant portion of its practice to
management education and preventive programs. This
approach helps limit exposure to grievances, charges
and lawsuits.
www.jacksonlewis.com
© 2012 Jackson Lewis LLP
2
ABOUT THE AFFIRMATIVE ACTION PRACTICE GROUP
We have unparalleled experience preparing AAPs and
defending them before the OFCCP in all industries
and areas of the country. Our diverse team of 35
attorneys, paralegals, and support staff prepares
approximately 2,500 AAPs a year.
Since 2010, we have defended over 250 OFCCP
audits, including successful defense of Corporate
Management
(“Glass
Ceiling”)
Compliance
Evaluations. As a law firm, we offer more than
consulting services, we offer strategic thinking and
sophisticated legal representation.
© 2012 Jackson Lewis LLP
3
ABOUT MICKEY SILBERMAN
Mickey is the Managing Partner of the firm’s Denver office
and Chair of the Jackson Lewis National Affirmative Action
Practice Group.
Mickey represents management
exclusively in all areas of employment law and specializes
in EEO, affirmative action and diversity.
Mickey spends much of his time counseling employers on
complex, “real world” issues relating to Equal Employment
Opportunity, including pay equity. He has helped employers
develop strategic compliance processes relating to pay
systems, applicant tracking, recruitment, pre-employment
testing, performance assessment, succession planning, etc.
silbermanm@jacksonlewis.com
© 2012 Jackson Lewis LLP
4
ABOUT JENNIFER SEDA
Jennifer is a senior attorney in the firm’s Affirmative Action
Practice Group in the firm’s Denver, Colorado office. Jennifer
represents management exclusively in all areas of
employment law and specializes in EEO, affirmative action and
applicant tracking.
Jennifer works with employers to prepare approximately 60
OFCCP audit plans throughout the country and prepares
approximately 300 affirmative action plans each year for
employers. Jennifer also spends a significant amount of time
counseling employers about the strategic development and
implementation of applicant tracking systems.
sedaj@jacksonlewis.com
© 2012 Jackson Lewis LLP
5
Proposed Revisions to
VEVRAA Regulations
© 2012 Jackson Lewis LLP
6
DATA COLLECTION
• OFCCP proposes that contractors be required to track and
analyze data concerning veterans, including:

Ratio of priority referrals to total referrals (referral ratio);

Ratio of jobs filled to job openings;

Ratio of protected veteran applicants to all applicants
(applicant ratio); and

Ratio of protected veterans hired to all hires (hiring ratio).
• Contractors will be required to invite applicants to selfidentify their protected veteran status both before and after
an offer of employment is extended.
© 2012 Jackson Lewis LLP
7
HIRING BENCHMARKS
• Contractors will be required to establish annual hiring
benchmarks based upon:

The average percentage of veterans in the civilian labor force
in the state(s) where the contractor is located;

The number of veterans who were participants in the
employment service delivery system in the state(s) where the
contractor is located for the previous four quarters;

The previous year’s referral, applicant and hiring ratios;

The contractor’s self-assessment of its recruitment and
outreach efforts; and

Other factors including the nature of the contractor’s job
openings and/or its location.
© 2012 Jackson Lewis LLP
8
ADDITIONAL REQUIREMENTS
• Formal Linkage Agreements – Contractors will be
required to establish three linkage agreements enlisting
assistance and support in recruiting and developing
training opportunities for protected veterans.
• Increased Outreach and Annual Evaluation – Contractors
will be encouraged to supplement current required
outreach efforts (OFCCP has a list of suggestions) and
required to perform an annual evaluation of outreach
and recruitment efforts.
• Document Retention – Five years.
© 2012 Jackson Lewis LLP
9
ADDITIONAL REQUIREMENTS
• Internal Dissemination – Contractors will be required to
maintain and disseminate an affirmative action policy
for qualified protected veterans through a variety of
channels.
• Training – Contractors will be required to provide
training on the benefits of employing protected
veterans,
appropriate
sensitivity
and
legal
responsibilities. All personnel involved in the
recruitment, screening, selection, promotion, disciplining
and related processes must be trained.
© 2012 Jackson Lewis LLP
10
Current OFCCP Veteran and
Disabled Enforcement
© 2012 Jackson Lewis LLP
11
SAMPLE OFCCP VETERAN REQUESTS
• State job postings during the review period
• Three years of VETS-100/VETS-100A Reports
• Self-ID forms
• Executed contracts or purchase orders with correct
language
© 2012 Jackson Lewis LLP
12
SAMPLE OFCCP VETERAN REQUESTS (CONT.)
• Posting informing employees when/where they can view
the AAP
• Invitation to veterans to self-identify and information on
where posted
• List of employees who have identified as veterans (often in
conjunction with accommodations requested)
• List of applicants who have identified as veterans, hired
(yes/no) and if not, why not
© 2012 Jackson Lewis LLP
13
VETERANS CONSIDERED FOR ALL OPENINGS?
• In an OFCCP audit out of the Pacific Region, OFCCP has
sought to enforce regulations requiring “careful,
thorough, and systematic consideration” of veterans for
all positions
• Review of personnel processes. The contractor shall
ensure that its personnel processes provide for careful,
thorough, and systematic consideration of the job
qualifications of applicants and employees who are
known special disabled veterans, veterans of the
Vietnam era, recently separated veterans, or other
protected veterans for job vacancies filled either by
hiring or promotion, and for all training opportunities
offered or available. 41 CFR 60-250.44(b).
© 2012 Jackson Lewis LLP
14
SAMPLE OFCCP DISABILITY REQUESTS
• Leave and accommodation policies
• Job descriptions (for medical and physical requirements)
• Information on review of medical and physical requirements
• Employees or applicants who have been denied promotion
or hire due to medical or physical job requirements
• Online accessibility
© 2012 Jackson Lewis LLP
15
SAMPLE OFCCP DISABILITY REQUESTS (CONT.)
• Accommodation request list (name, date of hire, request,
granted (yes/no), if not, why not)
• Disability leave list (name, job title and salary before leave
and job title and salary after leave)
• Maternity leave list (name, job title and salary before leave
and job title and salary after leave)
• Disabled applicant list, hired (yes/no), and if not, why not
© 2012 Jackson Lewis LLP
16
How to Get Proactive
Despite the Uncertainty
© 2012 Jackson Lewis LLP
17
START THINKING ABOUT GOOD FAITH
OUTREACH EFFORTS . . . NOW
•
Even though proposed regulations have not been
approved yet, OFCCP aggressively scrutinizes employer
good faith outreach efforts to veterans and the disabled
•
We cannot wait until the regulations are finalized to start
reviewing and bolstering good faith efforts
•
Employers must be able to demonstrate a commitment
to outreach. Employers who appear to have just gone
through the motions will face greater scrutiny
•
If OFCCP finds the contractor was deficient in
recordkeeping and/or outreach, the Agency will issue
technical violations
© 2012 Jackson Lewis LLP
18
HOW TO BOLSTER
GOOD FAITH OUTREACH EFFORTS
•
Identify at least one strong diversity source for females,
minorities, disabled and veterans
•
Post jobs with appropriate state delivery system
•
Monitor the number and quality of applicants referred
by diversity recruitment sources and, as appropriate,
change these sources
© 2012 Jackson Lewis LLP
19
OTHER THINGS TO THINK ABOUT RIGHT AWAY
•
Timely file EEO-1 and Vets 100/100A reports
•
Do not ask for veteran or disability status of applicants
•
Include an online accessibility statement on website
•
Review medical and physical job requirements on a
regular basis
•
Send annual letters to vendors and subcontractors
© 2012 Jackson Lewis LLP
20
OTHER THINGS TO THINK ABOUT RIGHT AWAY
(CONT.)
•
Update purchase order to include EO 11246, VEVRAA,
Section 503 and EO 13496
•
Keep maternity leave, disability leave and
accommodation request documentation in a central
place that will allow you to respond to requests quickly
• “Careful, thorough and systematic” consideration of
known covered veterans for hiring, training and
promotion opportunities
© 2012 Jackson Lewis LLP
21
Thank you for attending!
Please contact us with any questions:
Mickey Silberman, Esq.
silbermanm@jacksonlewis.com
P: (303) 225-2400
Jennifer L. Seda, Esq.
sedaj@jacksonlewis.com
P: (303) 225-2411
Jackson Lewis LLP
www.jacksonlewis.com
© 2012 Jackson Lewis LLP
22