The following post has been reposted from an Employement Practice Alert issued by Barley Snyder on August 28, 2013. The post was written by : Jennifer L. Craighead, Esquire and Joshua L. Schwartz, Esquire of Barley Snyder. Both can be reached through the Barley Snyder website at www.barley.com.
The Office of Federal Contract Compliance Programs (“OFCCP”) has taken the final step to implement controversial regulations regarding federal contractors’ hiring of veteran applicants and disabled applicants. These regulations significantly alter the metrics used by the OFCCP to determine federal contractor compliance with the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973 (Sec. 503).
As reported previously, on July 31, 2013, the OFCCP submitted new proposed regulations implementing VEVRAA and Sec. 503 to the Office of Management and Budget (“OMB”) for approval. The OMB had 60 days to review the proposed regulations, but took less than a month. The regulations will take effect 180 days following publication, likely in early 2014.
In its announcement on August 27th, the OFCCP highlighted the following changes to existing law:
•Hiring Benchmarks, Utilization Goals, and Outreach. The final rules require federal contractors to establish annual “hiring benchmarks” for protected veterans, based on the national percentage of veterans in the civilian labor force or other data collected nationally or locally. The applicable data will be posted in the “Benchmark Database.” Similarly, the final rules provide an across-the-board seven percent (7%) utilization goal for individuals with disabilities. Hand-in-hand with these goals are specific outreach, posting, and recruitment requirements, as well as new electronic posting
requirements about employee rights and employer obligations. It is important to note that the hiring benchmarks apply across the entire workforce rather than to each individual job group. Furthermore, the benchmarks are not quotas, but rather a yardstick to measure the effectiveness of federal contractors’ outreach and recruitment efforts for veterans and the disabled.
•Increased data collection and record-keeping requirements. Federal contractors and subcontractors will be required to document, maintain, and update documents and calculations annually regarding veterans and individuals with disabilities, such as referral data, applicant and hiring data, physical and mental job qualification requirements, and job fill ratios. This data must be maintained for three years and will be used during audits to spot trends.
•Changes to the current self-identification process. When an applicant is considered for employment, as well as at the post-offer stage, federal contractors are required to invite individuals to voluntarily self-identify as a veteran or an individual with a disability. The regulations include
sample invitations that federal contractors may use. The regulations implementing Sec. 503 also require employers to invite existing employees to self-identify as disabled every five years using prescribed language. Although ordinarily employers cannot invite applicants to self-identify as disabled before a job offer is made without running afoul of the Americans with Disabilities Act (ADA), the new regulations require federal contractors to do so. The Equal Employment Opportunity Commission (EEOC) appears to have concurred with the OFCCP on this issue, stating that federal contractors may invite applicants to voluntarily self-identify, so long as the questionnaire clarifies that the information is used solely in connection with the federal contractor’s affirmative action obligations and indicates the information will be kept confidential in accordance with the ADA.
• Records access. Federal contractors must permit the OFCCP to review documents, either on-site or off-site, upon the agency’s request. Federal contractors must provide these documents in whichever format the OFCCP requests, provided the federal contractor already maintains the documents in that format.
• Job listings. Federal contractors must provide job listing information in a manner and format permitted by the appropriate state or local job service for veterans, so that the service can access and use the information to make the job listings available to job seekers.
• Required language in subcontracts. The rules require specific language to be incorporated into the equal opportunity clause of subcontracts, so that subcontractors are aware of their responsibilities under VEVRAA and Sec. 503.
• ADAAA consistency/accommodation requests. The new regulations seek consistency with the Americans with Disabilities Act Amendment Act of 2008 by expanding the scope of “disability” to the same extent as that statute.
As noted above, the final rules go into effect 180 days from publication. Barley Snyder will hold a free webinar in late September/early October to discuss each of the significant rule changes in more detail. The attorneys and paralegals in Barley Snyder’s Employment Law Group have years of
experience assisting clients with creating Affirmative Action Plans, comprehensive self-audits, and compliance with OFCCP requests.