Federal contractors and subcontractors continue to prepare to implement the revised regulations regarding protected veterans and individuals with disabilities that were issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). There are certain provisions in these revised regulations that must be implemented by March 24, 2014. I discussed these provisions in my January 2014 article for The OFCCP Digest.
On Friday, February 14, OFCCP provided new information regarding some of the March 24 requirements via a series of answers to frequently asked questions (FAQs). These new FAQs have important ramifications regarding certain actions that federal contractors and subcontractors should take.
FAQs vs. Regulations
Before continuing, it is worth noting that FAQs do NOT have the force of law in the same way that federal regulations do. There is a defined procedure that a government agency must follow to put a regulation into place. The regulation then has the full force of law and must be implemented by the parties at issue until the regulation is withdrawn or a court finds the regulation is an improper exercise of the agency’s authority. In order to help individuals and companies understand laws and regulations, agencies such as OFCCP routinely release various forms of guidance. These forms of guidance may come in the guise of directives, policy statements, or answers to frequently asked questions. Regulatory agencies such as OFCCP have the right to issue these forms of guidance, and, more importantly, have the right to unilaterally withdraw these forms of guidance. In fact, OFCCP has at times argued during administrative proceedings that it is not bound to follow its own directives or FAQs. Thus, the information in the recently released FAQs from OFCCP is helpful and interesting, but there is no guarantee that OFCCP will consistently follow the guidance in these FAQs. OFCCP has the right to modify the position it expresses in these FAQs at its discretion. This is very different than the requirements found in the revised regulations themselves, which OFCCP MUST follow until the regulations are formally withdrawn.
Language for Equal Opportunity Clauses in Contracts and Purchase Orders
The revised regulations require federal contractors to include certain clauses concerning veterans and individuals with disabilities in all contracts and purchase orders. These clauses must be inserted in all new contracts prepared on or after March 24 and must be included in all contracts revised or modified on or after March 24. The explicit language for these contract clauses is found in the federal regulations themselves.
While the regulations give no indication that the contract clauses can be combined in any way, OFCCP has released several FAQs suggesting that they can. There are separate FAQs for the revised veterans regulations and the revised disability regulations. FAQ 1 concerning Equal Opportunity Clauses reads as follows:
Yes, contractors may combine these two EO “incorporation by reference” clauses provided that the combined clause is set in bold text and the prescribed content of both clauses is preserved. The following example provides one illustration of how this might be done:
This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.
FAQ 2 on the Equal Opportunity Clauses then provides a mechanism to combine the equal opportunity clause in Executive Order 11246 for minorities and females with the equal opportunity clauses for veterans and individuals with disabilities. This FAQ reads as follows:
Yes, contractors may combine all of their required EO clauses into a single “incorporation by reference” clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO “incorporation by reference” clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:
This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
These FAQs tend to be helpful to companies, as they limit the number of equal opportunity clauses that must be included in contracts and purchase orders. The FAQs seem somewhat contradictory to the actual regulations themselves, as the regulations indicate that the equal opportunity clauses must be included in the exact form found in the regulations. However, OFCCP is likely to accept a combined set of equal opportunity clauses during compliance reviews based on the content of these FAQs. Note that whatever version of the equal opportunity clause(s) federal contractors and subcontractors choose to use, the clause MUST be in BOLD text.
Availability of EEO Notices to Employees and Applicants
One of the actions that federal contractors and subcontractors are required to take by March 24 involves notices that are to be made available to applicants and employees. The revised regulations for veterans and individuals with disabilities both state that OFCCP will make available “notices in a form to be prescribed by the Director” of OFCCP. While OFCCP has made no formal notice specifically available to federal contractors and subcontractors, the recent FAQs provide information on what companies are expected to do in this regard.
New FAQs on implementing the revised regulations state:
Providing the “EEO is the Law” poster in an alternate format, such as large print or Braille, is a form of reasonable accommodation. Therefore, contractors must make the poster available in such an alternate format only when an applicant or employee requests the poster in an alternate format, or when the contractor knows that an applicant or employee is unable to read the poster because of a disability. Contractors may also provide the poster to an applicant or employee with a disability in other alternate formats, such as on disc or in an audio recording, so long as the format provided enables the individual with a disability to access the contents of the poster.
The purpose of this requirement is to ensure that applicants who apply for jobs electronically are informed of their equal employment opportunity protections as part of the application process. Although including a copy of the poster with every electronic application will satisfy the requirement, the regulations do not require contractors to do this. Rather, a contractor may choose to satisfy this requirement in any way that ensures that every electronic applicant has the opportunity to view the poster during the application process, such as by displaying a prominent link to the poster, along with a brief explanation of what the link connects to, as part of their electronic application.
The revised regulations themselves state that “applicants or employees…are provided the notice in a form that is accessible and understandable” to individuals with disabilities and disabled veterans. The revised regulations also state that “An electronic posting must be used by the contractor to notify job applicants of their rights if the contractor utilizes an electronic application process. Such electronic applicant notice must be conspicuously stored with, or as part of, the electronic application.” [emphasis added in both cases] However, there is NO language in the regulations that speaks to the “EEO is the Law” poster. Based on the language of the FAQs, it appears that OFCCP believes that the “EEO is the Law” poster constitutes the notice required by the regulations.
The notice to employees (which we now understand is the “EEO is the Law” poster) must be made available to all employees. A physical version of the notice may be posted in various locations. An electronic version of the notice may be posted on the company’s intranet site and sent via e-mail to employees. The company must ensure that all employees have access to the notice. In the FAQ noted above on the use of different versions of the notice, OFCCP states that companies must make the “EEO is the Law” poster available in an alternate format ONLY when an employee requests the poster in an alternate format or when the company knows an employee is unable to read the poster because of a disability.
A notice (i.e. the “EEO is the Law” poster) must also be made available to all applicants. Again, a physical version of this notice may be posted in various locations where individuals appear in person to complete application materials. However, since most companies use an electronic application process to accept applicant information, the more critical issue is ensuring that there is a way to make the “EEO is the Law” poster available to all applicants. OFCCP indicates in the FAQ noted above that “a contractor may choose to satisfy this requirement in any way that ensures that every electronic applicant has the opportunity to view the poster during the application process, such as by displaying a prominent link to the poster, along with a brief explanation of what the link connects to, as part of their electronic application.” Companies are certainly allowed to include the entire “EEO is the Law” poster in job postings, but in any case companies must also be able to satisfy OFCCP’s requirement that the notice is “conspicuously stored with…the electronic application.” Including a link to the “EEO is the Law” poster in the application form appears to satisfy this requirement. As with the notice to employees, companies are not required to make the “EEO is the Law” poster available in alternate formats unless an applicant requests an alternate format or the company knows that an applicant is unable to read the poster because of a disability.
Additional Items That Must Be Implemented by March 24
While OFCCP specifically addressed contract clauses and the notice to employees and applicants in its recent FAQs, there are additional items that federal contractors and subcontractors must implement by March 24. Here is a short recap of these items.
There are other recent FAQs that cover items not discussed in this article. These FAQs concern subjects that are associated with requirements that must be implemented by federal contractors and subcontractors when their affirmative action plans are next updated. For example, there are recent FAQs on the “data analysis file” that is required for storing data on disability status and on the minimum job group size associated with the 7% disability utilization goal. If you wish to read the FAQs regarding the regulations for protected veterans, they can be found at http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm, while the FAQs regarding the regulations for individuals with disabilities can be found at http://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm.
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