Regardless of where the Trump Administration takes the OFCCP, it seems likely that meaningful outreach for veterans and individuals with disabilities will remain a priority. Government contractors need to be mindful of what the regulations require as to the assessment of that outreach, what proof OFCCP is likely to ask for in an audit, and how contractors can meet these obligations.
Background and Introduction of Assessment Requirement
One of the regulatory sections that OFCCP strengthened in its 2014 revisions of the veteran and disability regulations was its section on external dissemination and outreach. Prior to March 2014, the veteran regulations at 41 CFR Section 60-300.44(f) or the disability regulations at 41 CFR Section 60-741.44(f) contained no requirement that a contractor perform an assessment of its outreach efforts. During compliance reviews under the old framework, OFCCP often would ask the contractor to demonstrate that it had engaged in outreach, and it was relatively easy to provide OFCCP with a list of the websites to which job advertisements had been distributed, or a list of the veteran-focused or disability-focused job fairs that the employer had attended. The compliance officer could ask for proof or verification that the employer had indeed engaged in such outreach through copies of emails, or documentation proving that the employer had registered to attend the job fair, and the like. This proof was one-directional. It simply required the contractor to keep tabs on its own communication outward; it did not require any evaluation of the results of that outreach.
That regulatory obligation changed when OFCCP’s revised veteran and disability regulations began to take effect in the spring of 2014, and continued throughout 2015 as more and more government contractor AAP data cycles required them to start complying with the new regulations. Recall that the outreach obligation falls under “Subpart C” of OFCCP’s regulations, and thus compliance was not instantaneous on March 24, 2014. As the contractor’s AAP data cycle renewed again, the contractor was expected to begin complying with the new regulations. Thus, not all employers began to comply in 2014. Some didn’t have to begin complying until as late as March of 2015. For that reason, calendar year 2015 saw little OFCCP enforcement on this topic. OFCCP honored its promise to the contractor community that it would afford employers a chance to ramp up and become compliant with these new outreach and assessment regulations, and OFCCP focused on compliance assistance during this timeframe.
Calendar year 2016, not surprisingly, saw an uptick in the number of questions that OFCCP began to ask during compliance evaluations about the contractor’s compliance with the new assessment regulation. This article is designed to help contractors meet their regulatory obligation by giving them some tips and tools to do an effective assessment of their outreach.
What Does the Regulation Require?
Because OFCCP’s veteran and disability regulations are mirror images of each other, we are going to quote only the veteran regulation here, which is known in shorthand as (f)(3):
“The contractor shall, on an annual basis, review the outreach and recruitment efforts it has taken over the previous twelve months to evaluate their effectiveness in identifying and recruiting qualified protected veterans. The contractor shall document each evaluation, including at a minimum, the criteria it used to evaluate the effectiveness of each effort and the contractor’s conclusion as to whether each effort was effective. Among these criteria shall be the data collected pursuant to paragraph (k) of this section for the current year and the two most recent previous years. The contractor’s conclusion as to the effectiveness of its outreach efforts must be reasonable as determined by OFCCP in light of these regulations. If the contractor concludes the totality of its efforts were not effective in identifying and recruiting qualified protected veterans, it shall identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations.”
There is a lot in that regulation, so we are going to break it down into its subparts, including an explanation of some of the other regulation sections that are cross-referenced.
- The obligation to self-evaluate is an annual obligation. It presumes that the contractor has kept an accurate record of each initiative it took over the past 12 months. Thus, it would be a best practice to develop an internal tool to help the recruiters, who are on the front lines of outreach, to track what they are doing as they do it. It’s always easier to do it as you go, than to try to remember what you did a year ago. (We have a tool, if you want one). Also, if the recruiters don’t track as they go, and then the recruiter resigns or is terminated, you’ve got a problem on your hands.
- You need to develop the criteria you are going to use to assess the effectiveness, and the data you collect on applicants and hires (the cross reference to paragraph (k)) is only one of those criteria; but because OFCCP views the data as an important criteria, it merits closer attention:
- In order for you to be collecting the paragraph (k) data on who self-identified as protected veterans or individuals with disabilities, first you need to be inviting applicants to self-identify.
- Then, in addition to inviting them to self-identify as applicants, you need to re-ask the self-identification question post-offer/at the time of hire (before the person actually begins working).
- If you’ve done both of those, and applicants and employees respond to the self-identification invitations, you should have data on the total number of applicants, the number of applicants who self-identified as protected veterans and individuals with disabilities, the total number of hires you made across the year, and the total number of hires who self-identified as protected veterans and individuals with disabilities, which will enable you to do some comparisons or trend analysis.
- Importantly, you also need to be asking on the application and again at the time of hire, “How did you hear about us?” or in some fashion or another, solicit the recruiting source. If the person self-identified as disabled, but doesn’t tell you which of your outreach sources he or she used to connect with you, that doesn’t help you to assess the effectiveness of each outreach initiative.
- But just because you didn’t hire the person doesn’t mean that your outreach was ineffective, and OFCCP said so expressly in its comments back to the government contractor community when it published its final rule:
“With regard to the comment suggesting that the number of veterans hired was the ‘only’ standard for analyzing the effectiveness of outreach, OFCCP respectfully disagrees. The proposed rule makes it clear that the number of veterans hired should be a primary factor considered, given VEVRAA’s stated purpose to ‘employ and advance in employment’ protected veterans, but is far from the only metric used for analyzing external outreach and recruitment efforts. Rather, the proposed rule required that the contractor consider all the metrics required by §60-300.44(k) (which includes applicant and hiring data), but also clearly allows the contractor to consider any other criteria, including ‘a number of factors that are unique to a particular contractor establishment,’ in determining the effectiveness of its outreach, so long as these criteria – whatever they are – are reasonable and documented so that OFCCP compliance officers can understand what they are. The purpose of the self-assessment is simply to ensure that the contractor thinks critically about how to evaluate and improve upon its recruitment and outreach efforts in order to maximize its connections to protected veterans seeking jobs.”
- Don’t lose sight of some of the macro issues as you do your self-assessment.
- It does matter what percentage of employees self-identify. If you are inviting applicants and hires to self-identify for disability or veteran status, but only 10% chose to answer the voluntary self-identification, it makes assessing the effectiveness of outreach harder. Consider discussing the percentage survey completion rate in your assessment.
- Are you inviting veterans to self-identify only as protected veterans, or are you soliciting information on all veteran categories? Although you report only protected veterans in your VETS-4212 forms, if you invite self-identification of all veterans, it may afford you the ability to assess the effectiveness of your veteran outreach to all veterans in your AAP, not just protected veterans. (The OFCCP’s veteran hiring benchmark was set using data on a broader set of veterans than just protected veterans).
- Consider whether your industry lends itself to attracting veterans and individuals with disabilities.
- So, aside from whether you hired the candidate, or not, and whether your applicants and hires are responding to the self-identification forms, we offer other suggestions that our clients have considered in an effort to help you evaluate the effectiveness of “any other criteria,” including factors that may be unique to your establishment:
- Job Fairs
- How many employers in total participated?
- Was this your first time trying this, or have you participated in this same job fair before?
- Did the job fair organizers accept online registration, or take a count of how many people came through in total?
- Did you have to pay to have a table or a booth?
- How many people would you say stopped by the table?
- How many people did you talk to?
- Did you collect resumes? (Be careful here!! If you are actually considering candidates for job openings, OFCCP will expect you to solicit race, gender, disability and veteran status at the job fair; if it’s just informational, and they are not being considered for a particular job opening, there may not be an obligation to solicit, yet).
- Do you have any sense of how many people, who you first met at the job fair, actually submitted an application or applied on line to an actual job opening?
- Diversity Websites
- Can the website track how many “clicks” your job openings are getting?
- Can the website’s owners tell you whether your jobs are getting more, less or about the same amount of traffic as other employers who are using their website?
- Can you track any of your applicants or hires back to a first touch off any of these websites?
- Vocational Rehabilitation Counselors/Veteran Outplacement Agencies
- How near or remote is your place of employment to actual physical buildings where state or local representatives work and do their referral jobs? (That is, how practical is it for them to come and visit your workplace?)
- Have you ever invited them to come visit your work environment?
- Have they ever accepted that invitation?
- Have they ever sent you any qualified candidates?
- College Recruiting
- Did you obtain a list of the campus clubs in advance of your visit?
- Did you identify any organizations that appear to have a greater likelihood of having a disability or veteran membership? Any military or ROTC groups?
- Did you reach out to them? By email? By phone?
- Did they acknowledge your outreach? Did they follow up?
- When you came to campus, did you try to meet representatives of their organization?
- Did you find it useful or helpful?
- What, if anything, is the university’s career services office doing to engage in outreach to their own veteran and disability communities, in advance of the visit?
- Executive Search Firms/Third Party Recruiting Agencies
- First things first – the obligation to engage in the outreach lies (at all times) with you the government contractor employer. If you choose to engage a third party agent to help you with this initiative, that’s your prerogative. But if you are going to rely on them to do your outreach for you, you might want to make that crystal clear up front. “We forgot to tell them that” or “The temp agency won’t give us their records” are not excuses.
- Have you made it clear as part of your engagement with them what your outreach obligations are vis-à-vis protected veteran and disability communities and thus what you expect of them?
- Do they know that you are going to ask them for their records to help you prove that you engaged in the required outreach through them?
- Do you know what records they are keeping for you and what types of records they are not going to be willing to share with you? You do not want to go into an audit with OFCCP and find out midway through the compliance review that your temp agency is taking the position that its outreach sources are proprietary and confidential, and they can’t or won’t share that with you.
- Fallback to the “proprietary and confidential” argument: Could they put together a summary of some of the outreach they are doing to veteran and disability organizations without revealing contact names and email addresses for the proprietary network it took them years of time and money to build?
In sum, for each outreach initiative undertaken over the course of the past 12 months, the contractor needs to assess it as “effective” or “ineffective” – would you do it again, or do you need to find something else effective? Keep in mind that if the contractor labels it as “ineffective,” the regulations require that the contractor “identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations.” The regulation uses the word “shall” (mandatory), not “should” or “may” (permissive). The list of sources enumerated in the veteran (f)(2) section include:
(A) The Local Veterans' Employment Representative in the local employment service office (i.e., the One-Stop) nearest the contractor's establishment;
(B) The Department of Veterans Affairs Regional Office nearest the contractor's establishment;
(C) The veterans' counselors and coordinators (“Vet-Reps”) on college campuses;
(D) The service officers of the national veterans' groups active in the area of the contractor's establishment;
(E) Local veterans' groups and veterans' service centers near the contractor's establishment;
(F) The Department of Defense Transition Assistance Program (TAP), or any subsequent program that, in whole or in part, might replace TAP; and
(G) Any organization listed in the Employer Resources section of the National Resource Directory (http://www.nationalresourcedirectory.gov/
), or any future service that replaces or complements it.
The list of disability sources listed in the disability (f)(2) section include:
(A) The State Vocational Rehabilitation Service Agency (SVRA), State mental health agency, or State developmental disability agency in the area of the contractor's establishment;
(B) The Employment One-Stop Career Center (One-Stop) or American Job Center nearest the contractor's establishment;
(C) The Department of Veterans Affairs Regional Office nearest the contractor's establishment (www.va.gov
(D) Entities funded by the Department of Labor that provide recruitment or training services for individuals with disabilities, such as the services currently provided through the Employer Assistance and Resource Network (EARN) [www.askearn.org
(E) Local Employment Network (EN) organizations (other than the contractor, if the contractor is an EN) listed in the Social Security Administration's Ticket to Work Employment Network Directory (www.yourtickettowork.com/endir
(F) Local disability groups, organizations, or Centers for Independent Living (CIL) near the contractor's establishment;
(G) Placement or career offices of educational institutions that specialize in the placement of individuals with disabilities; and
(H) Private recruitment sources, such as professional organizations or employment placement services that specialize in the placement of individuals with disabilities.
Thus, there seems to be an incentive to try to find outreach sources that are effective.
Internal Audit, Reporting and Record Keeping
We would also be remiss if we didn’t mention that the assessment of these outreach obligations cannot be viewed in regulatory isolation. There are also corresponding (1) internal audit and reporting obligations and (2) longer record keeping obligations. Not only did OFCCP strengthen the notion of engaging in meaningful outreach by writing new section (f)(3) dealing with effectiveness of the outreach, it (a) shored up the regulations dealing with internal auditing on a periodic basis to see what’s working and what’s not working and (b) it extended the record keeping obligation just for these outreach documents and the applicant and hire counts under section (k) to three years.
Under the equal employment policy obligation, by identifying the government contractor’s top United States Executive in that policy – he or she has agreed that his or her organization is undertaking an annual internal audit of the effectiveness of the affirmative action program. Which in turn prompts the question, what evidence is the organization generating in order to meet that internal audit obligation? If there is supposed to be evidence of an internal audit, which is measuring the effectiveness of the contractor’s whole affirmative action program, it would seem that the contractor’s assessment of the outreach under (f)(3) would also help meet its obligation under the internal audit and reporting obligation (subsection (h)). Said differently, if the contractor is not developing the assessment, it’s possible for OFCCP to cite the contractor for three violations (outreach, internal audit, and record keeping), not just one.
As to the record keeping obligation, the regulation (known as (f)(4)) states: “The contractor shall document all activities it undertakes to comply with the obligations of this section, and retain these documents for a period of three (3) years.”
In conclusion, it is our recommendation that contractors (a) develop a tool that helps them track their outreach; (b) train recruiters on the importance of filling it out contemporaneously with the activity on some of the criteria they can use to assess the effectiveness; (c) assess the effectiveness in a manner that would also meet the internal audit and reporting regulatory requirements; and (d) ensure that these records are being maintained for at least three years from the making of the record or the personnel decision at issue.