federal contractors get ready for change: what ofccp’s …federal contractors get ready for...

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Wednesday, February 26, 2014 2:00 p.m. to 3:00 p.m. Eastern 1:00 p.m. to 2:00 p.m. Central

12:00 p.m. to 1:00 p.m. Mountain 11:00 a.m. to 12:00 p.m. Pacific

Presented by:

Susan Schoenfeld Senior Legal Editor, BLR

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Federal Contractors

Get Ready for Change:

What OFCCP’s New Disability and Veterans Regulations Mean for You

Federal Contractors Get Ready for Change:

What OFCCP’s New Disability and Veterans

Regulations Mean for YouSponsored by

© 2013 BLR®—Business & Legal Resources. All rights reserved. 2

Agenda

• What is happening at OFCCP?

• New regs and upcoming deadlines

• Changes to Section 503 and

VEVRAA

• What to do now (and later)


What is Happening at OFCCP?

• Support from current administration

• Increased funding and staffing

• Increased audits and regulatory action


New Regulations

• Published in 9/24/2013 Federal Register

• Effective 3/24/2014

• Extended effective date for Subpart C (program

requirements), but OFCCP says begin

compliance efforts ASAP


New Regulations: DeadlinesWhat happens on March 24, 2014?

• Subpart A (EO clause, job posting)

• Subpart B (nondiscrimination)

• Subpart D (enforcement)

• Subpart E (recordkeeping)


New Regulations: Subpart C Deadlines• Invitations to self-ID

• AA policies

• AAP contents

• Utilization goals and benchmarks


Subpart C: OFCCP’s “Recommendations”

• Begin complying with Subpart C before new plan year

• “Strongly encourage” compliance as soon as practicable

• Invite applicants to voluntarily self-identify, institute policies, document


New Regulations

What happens if you are not ready?

• Technical violations

• No discrimination findings, but must determine where impediments exist


Section 503: IWDs

• Nondiscrimination and affirmative action for individuals with disabilities (IWDs)

• Written Affirmative Action Plan (AAP): 50+ employees and covered contract of $50,000 or more

• NEW: includes construction contracts


Section 503: IWDs 7% utilization goal

• 100+ employees, apply 7% goal to job groups

• Smaller employers can use EEO-1 job categories

• Less than 100 employees, apply 7% to workforce as a whole


Section 503: IWDs—Outreach and Recruiting

• Undertake "appropriate outreach and positive recruitment activities”

• Track and fully report on all outreach and recruiting efforts

• Requires A LOT more effort


Section 503: IWDs—Outreach and Recruiting (cont.)Enlist the assistance and support of:

• State Vocational Rehabilitation Service Agency (SVRA)

• Employment One-Stop Career Center (One-Stop)

• American Job Center

• Nearest the contractor’s establishment


Section 503: IWDs—Outreach and Recruiting (cont.)Suggested actions to fulfill EEO opportunities for IWDs:

• Formal briefing sessions for recruiters

• Formal arrangements for referral of applicants, follow-up, and feedback on disposition

• Special efforts at educational institutions, work study


Section 503: IWDs —Assessment of Outreach and Recruiting

• Review efforts of past 12 months • Evaluate effectiveness of outreach and

recruiting efforts • Document each evaluation, list criteria and data

for each effort (current year and 2 previous years)


Section 503: IWDs —Assessment of Outreach and Recruiting (cont.)

• Conclude whether each effort was effective.• Conclude whether the totality of outreach and

recruiting efforts was effective for IWDs.• Important—If efforts were not effective, identify

and implement alternative efforts.


Section 503: IWDs—Data CollectionFor current year and two most recent previous years:• # of applicants who self-ID’d as IWDs, or

otherwise known as IWDs;• Total # job openings and total # jobs filled;• Total # applicants for all jobs;• # applicants with disabilities hired; • Total # applicants hired


Section 503: IWDs—Self-Identification

• Pre-offer and post-offer phases

• Use OFCCP form (available on http://dol.gov/ofccp)

• Do not alter form, electronic version permitted


Section 503: IWDs—Self-Identification (cont.)

Pre-offer

• When the applicant applies or is considered for employment

Post-offer

• After offer but before work starts


Section 503: IWDs—Self-Identification (cont.)

Incumbents

• Within first year of new requirements

• 5-year intervals thereafter

• Reminder at least once in years between invitations


Section 503: IWDs—Self-Identification (cont.) If an individual refuses to self-ID• Contractor may make its own visual identification

• Based on clearly observed disabilities (e.g., blindness) or accommodation request

• Contractors may not guess or speculate


Section 503: IWDs—Utilization Analysis

• Annually

• Assessment of problem areas

• Establish specific, action-oriented programs to address identified problems


Section 503: IWDs—Utilization Analysis (cont.)

If less than the 7% utilization goal:

• Take steps to determine if impediments to EO exist

• Develop and execute action-oriented programs to correct problem areas


Section 503: IWDs—Utilization Analysis (cont.)

• Failure to meet a utilization goal will not be a violation of the regulations

• Will not lead to a fine, penalty, or sanction, BUT

• Failure to set a goal, conduct utilization analysis, and assess problem areas will get you in trouble


Section 503: IWDs—Other Changes

• Definition of disability to align with Americans with Disabilities Act Amendments Act (ADAAA)

• EO clause (incorporate by specific reference clause)

• Tag lines in job ads for IWDs (“Disability,” not “D”)


Section 503: IWDs—Other Changes (cont.)

• Review personnel policies

• Self-audit

• Physical and mental qualifications

• Compliance evaluations (Frito-Lay, extending scope)


Section 503: IWDs—Other Changes (cont.)

• Record format and provide documents to OFCCP

• Electronic posting

• Availability of AAPs


VEVRAA: Protected Veterans

• Nondiscrimination and AA for protected veterans

• Written AAP: 50+ employees and covered contract of $100,000 or more

• Part 60-250 regs rescinded, pre-JVA 12/1/03


VEVRAA: 8% Hiring Benchmark

• New 8% hiring “benchmark” for protected veterans

• Apply to the workforce as a whole, by AAP establishment

• Not to individual job groups


VEVRAA: 8% Hiring Benchmark (cont.)

• May choose to set own benchmark

• Most contractors likely to use OFCCP’s 8% figure

• Either way, document the hiring benchmark used


VEVRAA: Setting Your Hiring BenchmarkBased on 5 factors• % vets in civilian labor force in state (BLS stats)• # of vets in state ESDS in previous 4 quarters• Applicant ratio and hiring ratio for the previous year• Contractor’s recent outreach and recruitment

assessments and• Any other factors (nature of job openings, location

affecting availability)


VEVRAA: Setting Your Hiring Benchmark (cont.)

• Document each of the factors

• The relative significance of each of the factors

• Retain benchmark records for 3 years


VEVRAA: Types of Protected Veterans

• Disabled veterans

• Recently separated veterans (3 years)

• Recipients of Armed Forces service medal

• Veterans who served in active duty in a war or campaign for which a campaign badge was authorized


VEVRAA: Job Listings

• Immediately list all employment openings

• List with state workforce agency job bank or with the nearest ESDS

• List with ESDS “at least concurrently” with any other effort

• Still exceptions for jobs outside U.S., exec jobs, and jobs < 3 days


VEVRAA: Job Listings (cont.)

Provide job vacancy information:

• In any “manner and format” permitted by the local ESDS

• Which will allow ESDS to provide veterans’ priority referrals

• Local ESDS rules vary, so beware


VEVRAA: Job Listings (cont.)Advise ESDS in each state with establishments:• You are a federal contractor, so ESDS

can ID you as such

• You want priority referrals of protected vets for job openings at all locations in the state


VEVRAA: Job Listings (cont.)Provide ESDS with:• Name and address of each hiring

location in state• Contact information for each

location’s hiring official• Contact information for any external

job search orgs used


VEVRAA: Job Listings (cont.)• Report information changes to ESDS

simultaneously with next listing• May advise if no longer bound by the

job listing requirements


VEVRAA: Outreach and Recruiting Resources“Suggested” resources for recruiting:• Local Veterans’ Employment Representatives

• Department of Veterans Affairs Regional Office

• Veterans’ counselors and coordinators (‘‘Vet-Reps’’) on college campuses

• Service officers of the national veterans’ groups active in the area


VEVRAA: Outreach and Recruiting Resources (cont.) New rule IDs “suggested” activities for recruiting:

• Hold formal briefing sessions for recruiters

• Efforts with educational institutions

• VA work study

• Career days and other activities


VEVRAA: Assessing Outreach and Recruiting

• Review efforts of past 12 months • Evaluate effectiveness of outreach and

recruiting efforts • Document each evaluation, list criteria and data

for each effort


VEVRAA: Assessing Outreach and Recruiting (cont.)

• Conclude whether each effort was effective• Conclude whether the totality of outreach and

recruitment efforts were effective • Important—If efforts were not effective, identify

and implement alternative efforts


VEVRAA: Data collectionFor current year and two most recent previous years:• # applicants who self-ID’d as PVs, or otherwise

known to be PVs;• Total # job openings and total # jobs filled• Total # applicants for all jobs• # of PV applicants hired• Total # applicants hired


VEVRAA: Self-IdentificationWith Subpart C, contractors must invite veterans to self-ID:• Pre-offer, no vet type required, same time as EO

11246 demographics collected

• Post-offer, ID vet type

• OFCCP sample self-ID form available


VEVRAA: Other Changes• EO clause

• Self-audit, review personnel policies

• Physical and mental qualifications

• Use of electronic posting

• Compliance evaluations


What To Do NowBefore March 24, prepare to:• Comply with new “job listing”

requirements

• Put disability/protected veteran “tag lines” in all job solicitations

• Use EO clause in all covered federal subcontracts


What to Do Now (cont.)Before March 24:

• Ensure policies are updated to reflect ADAAA and new protected veteran types

• Prepare to comply with OFCCP’s revised enforcement procedures

• Prepare to comply with OFCCP’s revised records/access provisions


What to Do on March 24 • Use prescribed EO clauses in all

covered contracts and subcontracts

• Send labor organizations notices

• Begin listing compliant job announcements with ESDS/other sources


What to Do on March 24 (cont.)• Use EEO tags for Disability/Vets

• Post revised bulletin board notices.

• May begin using new voluntary self-ID


What to Do When New AAP Year Begins (After 3/24/14)• MUST begin soliciting self-ID

• Track job openings, positions filled, etc. for AAP metrics

• Survey existing workforce for IWDs status

• Use new statistics, assessments, and utilization analyses in new plans


Affirmative Action Resources• BLR’s Regs for Federal Contractors Resource Center

http://hr.blr.com/resource-centers

• OFCCP’s VEVRAA sitehttp://www.dol.gov/ofccp/regs/compliance/vevraa.htm

• OFCCP’s Section 503 sitehttp://www.dol.gov/ofccp/regs/compliance/section503.htm


Questions


• A 100% flawless audit success rate.• 11 million jobs to date, delivered to career centers

nationwide.• First-in-class product features, some of which the Office of

Federal Contract Compliance (OFCCP) has adopted as new mandatory regulations.

• The only solution guaranteeing local outreach.• 700 committed, satisfied customers.

Contact SourceCast at 1-877-693-3326 or [email protected] today!

Disclaimers *This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

Susan Schoenfeld, J.D., is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and

counseling, covering topics such as affirmative action, disability discrimination, wrongful discharge, sexual harassment, and general employment discrimination. She has litigated numerous cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. In addition to litigating employment cases in state and federal court, she provided training and counseling to corporate clients regarding employment-related issues. Prior to entering private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the Office of Federal Contract Compliance Programs, the Directorate of Civil Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.

Susan Schoenfeld

SourceCast is the leading provider of Web-based HR compliance solutions with unsurpassable results. SourceCast specializes in providing Human Resources with hassle-free job distribution, reporting, and local outreach. With the inception of VETcentral, our VEVRAA solution, and VOCcentral, our Section 503 solution, SourceCast is able to build upon a 100% flawless audit success rate, 11 million jobs to date—delivered to career centers nationwide, first-in-class product features, some of which the Office of Federal Contract Compliance (OFCCP) has adopted as new mandatory regulations, the only solution guaranteeing local outreach, and 700 committed, satisfied customers. Originally, SourceCast provided compliance through our two main flagship products: VOCcentral and VETcentral. Recently, we added Divercity Outreach to the fleet, our unique local outreach tool. With this latest addition, we are proud to announce that we now provide an all-encompassing compliance solution for Section 503 and VEVRAA. SourceCast provides each product with a commitment and excellence, paired with a flawless audit success rate in order to deliver the only solution that accurately addresses OFCCP compliance requirements.

federal contractors get ready for change: what ofccp’s …federal contractors get ready for...

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