OFCCP’S
Groundbreaking New
Section 503 and
VEVRAA Regulations
OutSolve, LLC Annual Client
Seminar
June 2014
Presented by:
Celia M. Joseph
Phone: (610) 230-2144
Email: cjoseph@laborlawyers.com
www.laborlawyers.com
Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport
Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans
Orlando · Philadelphia · Phoenix · www.laborlawyers.com
Portland · San Antonio● ·Phone
San Diego
· San Francisco · Tampa · Washington, DC
(610) 230-2150
"Strengthening these
regulations is an important step
toward reducing barriers to real
opportunities for veterans and
individuals with disabilities."
Patricia A. Shiu, OFCCP Director
September 2013
www.laborlawyers.com ● Phone (610) 230-2150
2
OFCCP Overview
•
OFCCP requires compliance for
covered contractors;
- Executive Order 11246
- Section 503 of the
Rehabilitation Act of 1973
(Section 503)
- Vietnam War-Era Veterans’
Readjustment Assistance Act of
1974 (VEVRAA)
• 25% of U.S. workers are employed
by Federal contractors
www.laborlawyers.com ● Phone (610) 230-2150
3
Final Rules: VEVRAA and Section 503
• Historic first revisions to these two regulations in 40
years
• Published September 24, 2013
• Effective date: March 24, 2014
• Different effective date for Affirmative Action Plan
requirements (Subpart C)
• Transition example for AAP with March 1, 2014 date
– March 1, 2015: Compliance with Subpart C
– March 1, 2016: AAP fully reflects results of all new
regulatory requirements
www.laborlawyers.com ● Phone (610) 230-2150
4
VEVRAA: Rationale for Revision
• Applies to contractors with
50 employees and $100k
contract
• First major revision since
1976
• Fewer “Vietnam Veterans”
• Veterans’ unemployment
rates higher than average
• Protect Gulf War-Era II vets
• NPRM comments affected
final rule
www.laborlawyers.com ● Phone (610) 230-2150
5
VEVRAA: “Protected Veteran”
Categories
• “Protected Veteran” definition
added
– Disabled veterans
– Recently separated veterans (3
years)
– Recipients of Armed Forces service
medal
– “Active duty wartime or campaign
badge veteran” replaced “other
protected veteran”
– “Pre-JVA veteran” added
www.laborlawyers.com ● Phone (610) 230-2150
6
VEVRAA: Job Postings, Solicitations,
Contracts and Notices
• Equal Opportunity (EO) Clause
required
– Equal employment opportunity
employer of protected veterans; may
be combined with 503 and EO
– Add mandatory EO clause to
contracts
– Accessible notice of rights and
application process and employees
– Notify union
• Employment Service Delivery
System (ESDS) – provide in usable
format
www.laborlawyers.com ● Phone (610) 230-2150
7
VEVRAA: Job Postings, Solicitations,
Contracts and Notices
• “EEO is the Law” poster will be
revised; not required to be stored
with each application (ex: link to
poster with application)
• Electronic format
– Reasonable accommodation
(accessible and understandable,
Braille, large print only when
requested or disability known)
– Current employees who work
virtually; actual knowledge of
accessibility
• Allowable abbreviations (vets, not v)
www.laborlawyers.com ● Phone (610) 230-2150
8
On-Line Application Process:
Accessibility
• Focus of OFCCP compliance
officers
• Contractor’s website use with
technology for inter-operation
• Prominence of contractor’s
accessibility statements
• Contractor’s contact
information
• Retain records of
accommodation requests
www.laborlawyers.com ● Phone (610) 230-2150
9
VEVRAA: New Self-Identification Rules
• OFCCP sample form
• Pre-offer (new): rationale
– Ask applicants to identify as
protected veteran in general
– Disabled veteran not
specifically identified
– Application materials
• Post-offer
– Specific categories
• Use data to assess outreach and
recruitment
• Data analysis file confidentiality
www.laborlawyers.com ● Phone (610) 230-2150
10
VEVRAA: New Data Collection Analysis
Requirements
• Meaningful data to evaluate and
tailor outreach; flexibility; records
retention
• Steps where efforts not effective
• Five factors required:
1. Number of protected veteran
applicants
2. Number of job openings and
jobs filled
3. Number of all applicants
4. Number of protected vets
hired
5. Number of applicants hired
www.laborlawyers.com ● Phone (610) 230-2150
11
VEVRAA: New Data Collection Analysis
Requirements (Clarification)
• Job opening:
– number of individual positions advertised as open in
announcement or requisition
– Ex: 5 open positions with 4 filled; contractor would document as
5 job openings and 4 jobs filled
• Jobs filled:
– all jobs the company filled by any means (competitive or
noncompetitive), including reassignment or merit promotion)
– Both new hires and employees placed in new positions via
promotions, transfers, reassignments
• Hired: Solely refers to applicants (both internal and
external) hired through competitive process, including
promotions
www.laborlawyers.com ● Phone (610) 230-2150
12
VEVRAA: What are Benchmarks?
• Established by each contractor
required to prepare AAP;
applied to hiring for each
establishment
• A tool and “yardstick”; not a
goal, not a quota
• Data availability issues
• Measurement of effectiveness
of outreach efforts
• No violation or penalty for
failure to meet benchmark
www.laborlawyers.com ● Phone (610) 230-2150
13
VEVRAA: Establishing Benchmarks
•
National benchmark (currently 7.2%) OR
•
Five-Factor Option (Contractor may customize its analysis
and provide reasons; explain factors, but no need to
assign numerical values)
1.
Consider state statistics
2.
Number of vets in prior 4 quarters
3.
Compare hiring ratio of vets to total
4.
Assessment of efforts
5.
Any other unique factor
•
Required: apply to total workforce, not by job groups
•
Different contractor establishments can use different
methods
www.laborlawyers.com ● Phone (610) 230-2150
14
VEVRAA: Training, Outreach, and
Recordkeeping
•
•
•
•
Linkage agreements not required
Training is mandatory
Assess effectiveness of outreach
Same obligation to periodically review
physical and mental job requirements
• Retain records for 3 years
• Best practices for successful OFCCP
audits in this regard
– Number of sources
– Identifying applicant referral sources in
written and oral questions
– Review applicant information from referral
sources
www.laborlawyers.com ● Phone (610) 230-2150
15
VEVRAA: State Workforce Agency
Listing Requirements
• General obligation to list jobs with
State Workforce Agency
• List in permitted manner and format
• Provide to State Workforce Agencies:
– Federal contractor status, hiring official
contact information, and request for
priority referrals; update contract
information
– Contact information of any outside search
agencies used by contractor
• OFCCP counts number of contract
hires and listings with State
Workforce Agencies
www.laborlawyers.com ● Phone (610) 230-2150
16
VEVRAA: Proving Recruitment and
Outreach Effectiveness
• No violation solely for failing to meet
benchmarks; a focus of compliance
evaluations will be on proving
outreach and recruitment
• Document and review referral sources
of applicants
• Address failure of referral sources to
send qualified applicants to contractor
• Role of third parties who conduct
outreach and recruitment;
responsibility of contractor for action
or inaction of vendors
www.laborlawyers.com ● Phone (610) 230-2150
17
VEVRAA Recordkeeping: Three Years
• Evaluation of outreach and
recruitment
• Records pertaining to data
collection comparisons
regarding applicants and
employees
• Records relating to hiring
benchmark requirements
• Temporal scope of OFCCP
audits
www.laborlawyers.com ● Phone (610) 230-2150
18
VEVRAA: Contractors Now Required To:
• Comply with old regulations
– Review personnel processes and job
qualifications
– Make reasonable accommodation
available
– Develop harassment prevention
policies
– Engage in outreach
– Have procedures to distribute EO
and affirmative action efforts
• New EO clause and accessibility
requirements
www.laborlawyers.com ● Phone (610) 230-2150
19
VEVRAA: OFCCP Strongly Encourages
Contractors to Begin Subpart C Compliance
• Pre-offer self-ID process
• EO statements with top executive support in AAP
• Assess, document & retain effectiveness of outreach
and recruitment efforts annually
• Document required audit and reporting system actions
• Train employees engaged in key personnel activities
• Conduct applicant and employee data analysis
• Establish benchmarks
www.laborlawyers.com ● Phone (610) 230-2150
20
VEVRAA Requirements of First AAP
After March 24, 2014
• Evidence of new self-ID
process
• EO policy statement (exec)
• Review of personnel
processes
• Schedule and proof of review
of job qualifications standards
• Anti-harassment procedures
• Outreach and recruitment
• Document activities
• Implementation and
dissemination of AA actions
•
•
•
•
•
•
•
Evidence of audit and
reporting system
Responsible individual
Data collection
Benchmark
Address both new and old
AAP requirements
If not in compliance, explain
steps taken
No violation if contractor
shows it acted reasonably in
light of particular
circumstances
www.laborlawyers.com ● Phone (610) 230-2150
21
Section 503: Rationale for Revision
• Higher unemployment of
individuals with disabilities
• Harmonize with ADAAA
• “Historic” protection similar to
those for race, national origin and
gender
• Director Shiu: “What gets
measured, gets done.”
• Public comments: concern with
new self-ID rule/ADA; 7% goal;
changes from NPRM to Final Rule
www.laborlawyers.com ● Phone (610) 230-2150
22
Section 503 Goal – 7%
• Applies to job groups at site (no
minimum size of group)
• If 100 or fewer employees, apply to
entire workforce (sheltered workshops
not counted in 7%; under some
circumstances can mention in AAP)
• Percentage may be adjusted periodically
by OFCCP
• OFCCP prepared suggested forms and
charts
• EO 11246 80% rule inapplicable to
503 goal
www.laborlawyers.com ● Phone (610) 230-2150
23
Section 503: Failure to Meet the Goal
• “It’s not a quota”
• No fine, penalty, sanction as a
result if no impediments to equal
employment opportunity exist
• Not an automatic violation; “signal”
of possible problem area
• Contractor to: 1) determine if and
where impediments exist; and 2)
develop and execute actionoriented programs
• OFCCP enforcement during first
new AAP year
www.laborlawyers.com ● Phone (610) 230-2150
24
Section 503: Contractor Actions
• Contractor must take steps
to:
• Assess personnel
processes
• Assess effectiveness of
outreach and recruitment
• Review AAP audit
• Develop and execute
action-oriented programs
• Affirmative Action Policy in
policy manuals
www.laborlawyers.com ● Phone (610) 230-2150
25
Section 503: New Voluntary SelfIdentification Requirements
• Mandatory form - January 2014
• Pre-offer – provide with request for
race, gender, veteran status; separate
from applications but may be with
materials; after meet Internet applicant
requirements (including basic
qualifications)
• Post-offer
• Employee:
– Within first year
– Every five years
– Provide at least one interim reminder
www.laborlawyers.com ● Phone (610) 230-2150
26
Section 503: If Voluntary Self-ID is
Declined
• No coercion
• Employer may identify as
disabled if:
– Disability is obvious or
– Disability is otherwise
known
• No guessing!
• Can provide contact and
other information on
reasonable accommodation
www.laborlawyers.com ● Phone (610) 230-2150
27
Section 503: Electronic Version of SelfID Form Provided That:
• OMB Number and
expiration date
• Contain text of form
without alteration
• Sans-serif font, such as
Calibri or Arial
• At least 11-pitch font size
(footnote and burden
statement in 10-pitch)
www.laborlawyers.com ● Phone (610) 230-2150
28
Section 503: Solicitations and Equal
Opportunity Clause
• Equal employment opportunity employer
of individuals with disabilities (disability,
not “d”)
• Specific equal opportunity language
included in contract clauses, not just
incorporated by reference (can combine)
• Electronic notice requirements (virtual
employees; post notices; accommodation
even for employees working at site;
Braille only if requested)
• No mandatory job listings; required
appropriate outreach and positive
recruitment activities
www.laborlawyers.com ● Phone (610) 230-2150
29
Section 503: Data Collection Metrics
1. Number of applicants who
are individuals with
disabilities
2. Total number of applicants
3. Total number of job
openings and jobs filled
4. Number of individuals with
disabilities hired
5. Total number of hires
3-year retention period
www.laborlawyers.com ● Phone (610) 230-2150
30
Section 503: New Data Collection
Analysis Requirements (Clarification)
• Job opening:
– number of individual positions advertised as open in
announcement or requisition
– Ex: 5 open positions with 4 filled; contractor would document as 5
job openings and 4 jobs filled
• Jobs filled:
– all jobs the company filled by any means (competitive or
noncompetitive), including reassignment or merit promotion)
– Both new hires and employees placed in new positions via
promotions, transfers, reassignments
• Hired: Solely refers to applicants (both internal and
external) hired through competitive process, including
promotions
www.laborlawyers.com ● Phone (610) 230-2150
31
Section 503: Reasonable
Accommodation
• Appendix provides
suggestions for written
policy
• Best practice, but not
mandatory
• Performance issues:
required inquiries by
supervisors if may be
related to a disability
www.laborlawyers.com ● Phone (610) 230-2150
32
Section 503: Analysis and
Recordkeeping
• Annually assess
effectiveness of outreach
efforts, in writing
• Identify alternatives, if
necessary
• Linkage agreements not
required
• Document outreach
• Retain records for 3 years
www.laborlawyers.com ● Phone (610) 230-2150
33
Section 503: Audits
•
•
•
•
Temporal scope
Format of employer’s records
On-site or off-site
Pre-award compliance audit
procedure (similar to EO)
www.laborlawyers.com ● Phone (610) 230-2150
34
Section 503: Contractors Now Required
To:
• Comply with old regulations
–
–
–
–
–
Review personnel processes and job qualifications
Make reasonable accommodation available
Develop harassment prevention policies
Engage in outreach
Have procedures to distribute EO and affirmative
action efforts
• New EO clause and accessibility requirements
www.laborlawyers.com ● Phone (610) 230-2150
35
Section 503: OFCCP Strongly Encourages
Contractors to Begin Subpart C Compliance
•
Pre-offer self-ID process; initial employee self-identification survey
•
EO statements with top executive support in AAP
•
Applicants and employees have equal access to personnel processes,
including electronically
•
Assess, document & retain effectiveness of outreach and recruitment
efforts annually
•
Document required audit and reporting system actions
•
Train employees engaged in key personnel activities
•
Conduct applicant and employee data analysis by calculating applicant
and hire data
•
Conduct annual workplace assessment; apply 7%
•
Develop action plans for resolving problems identified in utilization of
individuals with disabilities
www.laborlawyers.com ● Phone (610) 230-2150
36
Section 503 Requirements of First AAP
After March 24, 2014
•
•
•
•
•
•
•
•
•
•
Evidence: new self-ID processes
EO policy statement
Review of personnel processes
Schedule and proof of review of job
qualifications standards
Anti-harassment procedures
Assess and document effectiveness
of outreach and recruitment
Document activities
Implementation and dissemination
of AA actions
Evidence of audit and reporting
system
Responsible individual
•
•
•
•
•
Data collection
Snapshot of disability
composition of workforce, results
of utilization analysis and
application of goal, discussion of
problem areas and actions to
address
Address both new and old AAP
requirements
If not in compliance, explain steps
taken
No violation if contractor shows it
acted reasonably in light of
particular circumstances
www.laborlawyers.com ● Phone (610) 230-2150
37
Questions?
Presented by:
Celia M. Joseph
Phone: (610) 230-2144
Email: cjoseph@laborlawyers.com
www.laborlawyers.com
Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport
Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans
38
Orlando · Philadelphia · Phoenix · www.laborlawyers.com
Portland · San Antonio● ·Phone
San Diego
· San Francisco · Tampa · Washington, DC
(610) 230-2150
Thank You
Presented by:
Celia M. Joseph
Phone: (610) 230-2144
Email: cjoseph@laborlawyers.com
www.laborlawyers.com
Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport
Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans
39
Orlando · Philadelphia · Phoenix · www.laborlawyers.com
Portland · San Antonio● ·Phone
San Diego
· San Francisco · Tampa · Washington, DC
(610) 230-2150