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As we approach the summer months, companies are continuing to implement the revised regulations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in regard to protected veterans and individuals with disabilities. By now, federal contractors and subcontractors should have implemented the items that were to have been in place by March 24, 2014. There are various other requirements in the affirmative action portions of the revised regulations that companies should now be considering.
As I have noted in previous articles for The OFCCP Digest, the revised regulations regarding protected veterans and the revised regulations regarding individuals with disabilities are each divided into five major parts. Subpart D discusses the procedures OFCCP will follow to conduct compliance reviews, while Subpart E contains information on record-keeping and OFCCP’s right to access records. There are no specific time frames associated with these sections of the regulations other than the record-keeping portion of Subpart E that defines how long various records must be kept.
Subparts A and B of the revised regulations contain various provisions that were to have been in place by March 24. Some of these provisions were carried over from the previous version of the regulations. Other provisions, such as the requirement to provide the state Employment Service Delivery System offices with contact information and the requirement to include specific EEO language regarding veteran and disability status on advertisements, were new in the revised regulations. Companies will need to continue meeting these various requirements so long as they are covered by the revised regulations.
Subpart C in each set of the revised regulations is entitled “Affirmative Action Program.” Subpart C contains various provisions regarding the contents of a company’s affirmative action plans. Subpart C also contains requirements regarding various actions that companies must take that should help the company fulfill its affirmative action obligations. The timing for the requirements in Subpart C falls into three categories:
Once the provisions in the revised regulations apply to a company, they must be followed every year. Thus, the provisions concerning the contents of AAPs apply to every set of AAPs that are produced after March 24, 2014, and the provisions concerning other actions to take must be taken on an annual basis.
I should note that companies often produce a single AAP that includes information on both veterans and individuals with disabilities. For many years, the provisions in the regulations for veterans have closely mirrored the provisions in the regulations for individuals with disabilities. This continues to be the case with the revised regulations, though there are a few instances where the revised regulations regarding veterans do not directly parallel the regulations regarding individuals with disabilities. Companies will need to determine whether they intend to have one AAP cover both veterans and individuals with disabilities or separate AAPs for these groups. Since companies may have separate AAPs, I will refer below to “AAPs” rather than “the AAP” for veterans and individuals with disabilities.
There are a number of new items in the revised regulations that should be in place at the time that a company’s AAPs are first updated after March 24. Please note that requirements in the regulations for veterans and individuals with disabilities that were in place in prior versions of the regulations are generally not covered below.
As I noted in my March article for The OFCCP Digest, the revised regulations make major changes to the requirements regarding the surveying that must be done by federal contractors and subcontractors. Here is a short summary of the surveying that needs to be in place no later than the date that AAPs are first updated:
Companies are required to include their equal employment opportunity/affirmative action (EEO/AA) policy statements in their AAPs for veterans and individuals with disabilities.
Companies must ensure that the EEO/AA policy statement is included in policy manuals, on intranet sites, and/or in other places that make the policy statement available to employees. If they have collective bargaining agreements, companies must also inform their unions about the EEO/AA policy and ask for the cooperation of the union.
The first AAPs prepared under the revised regulations must include both the hiring benchmark for veterans and the utilization goal for individuals with disabilities that appear in the revised regulations.
The revised regulations require an assessment of outreach efforts conducted by the company. While the first assessment of outreach will not include the data metrics found in the revised regulations, this assessment should include the following items:
The assessment of outreach in subsequent AAPs will include a review of the data metrics discussed below that must be maintained for veterans and individuals with disabilities.
While the regulations don’t explicitly say so, it appears there are various actions that do not need to be completed the first time that AAPs are updated to meet the new regulations. Instead, these actions should be taken during the first year after the AAP updates. For example, for companies with January 1 AAPs, these actions should be taken some time during the year from January 1, 2015 to December 31, 2015.
The revised regulations indicate that “all personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes should be trained to ensure that the commitments in the contractor’s affirmative action program are implemented.” There is no guidance in the regulations on what this training should constitute, how long it should last, or when it should occur.
One of the items in regard to external dissemination of a company’s EEO/AA policy is a requirement to send written notification of the company’s policy to “all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part.” This is effectively a return to sending the kind of letters to vendors that companies routinely sent before 2000. It seems clear the letters must be sent on an annual basis to vendors. However, there is no specific guidance on the content required for these letters or the timing for sending these letters. There is no requirement that vendors actually return the letters, only that the letters are sent.
Sometime during the year after AAPs are first updated under the revised regulations, there must be a re-survey of a company’s entire workforce to gather information on disability status. This survey MUST use OFCCP’s disability survey form. There is no similar requirement to re-survey for protected veteran status, but companies may be well-served by conducting a more general survey for demographic information rather than simply surveying for disability information. The re-survey must be completed no later than the end of a company’s first AAP year under the revised regulations. Thus, companies with January 1 AAPs would need to complete this re-survey no later than December 31, 2015, while companies with July 1 AAPs would need to complete this re-survey no later than June 30, 2015.
While there are many items under the revised regulations that must be implemented when AAPs are first updated under the revised regulations or during the first year after AAPs are revised, there is one set of requirements that cannot be fully implemented until the second time that AAPs are updated. This set of requirements involves the data metrics that companies must analyze as part of their affirmative action plans. Companies must include the following data metrics starting with the second AAPs completed under the revised regulations:
In the second AAP update under the new regulations, companies should have one year of data based on the applicant and employee surveys conducted during the previous year. This parallels a company’s AAP for minorities and females, where one year of personnel activity data is analyzed in each AAP update. However, the data metrics in the AAPs for veterans and individuals with disabilities become more complex in subsequent years, as OFCCP expects that federal contractors and subcontractors will ultimately include three years worth of information in their data metrics. This means that a company will not have what OFCCP considers a complete data set until the fourth AAP update under the new regulations.
The data metrics noted above are not fully defined in the revised regulations. However, OFCCP has released answers to frequently asked questions (FAQs) on its website that address the nature of these data metrics. These FAQs can be found at http://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm and http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm. Please note that there is some continuing controversy about how OFCCP has interpreted the language found in its regulations regarding ideas such as “total number of jobs filled” and “total number of applicants hired.” While I will be writing more about data metrics in the future, Cara Crotty has an interesting article in the January 2014 edition of The OFCCP Digest on this subject.
While there has been much work done already by federal contractors and subcontractors to implement the revised regulations for protected veterans and individuals with disabilities, there is still much work ahead. Companies with AAPs that will be updated later in 2014 or early in 2015 should begin planning now for how they will implement the Subpart C items noted above. Companies with AAPs that have already been updated should ensure that the items noted above have been included in their AAPs. Companies with AAPs that will be updated in summer should quickly consider how they will accomplish the items that need to be in place on the start date of their new AAPs and how they will then begin work on the remaining items associated with the revised regulations.
For more information on OFCCP’s revised regulations regarding protected veterans and individuals with disabilities, please contact Bill Osterndorf at [email protected].
Please note: nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization’s particular circumstances. All original materials copyright © HR Analytical Services Inc. 2014