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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


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

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

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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 the Final Disabilityand Veterans RegulationsMean for You

Sponsored by

Vice President, HR &Compensation Markets: Matthew T. Humphrey

Founder: Robert L. Brady, JD

Managing Editor, HR: Patricia M. Trainor, JD, SPHR

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Art Direction: Vincent Skyers

This publication is designed to provide accurate and authoritative information in regard to the sub-ject matter covered. It is sold with the understanding that the publisher is not engaged in renderinglegal, accounting, or other professional services. If legal advice or other expert assistance is required,the services of a competent professional should be sought. (From a Declaration of Principles jointlyadopted by a Committee of the American Bar Association and a Committee of Publishers.)

© 2014 BLR®—BUSINESS & LEGAL RESOURCES

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iii

TABLE OF CONTENTSWhat happens on March 24, 2014?...................................................................................................1

What happens if you are not in compliance on March 24?.........................................................2

What the final rule requires—Section 503: Individuals with disabilities...............................37 percent utilization goal .................................................................................................................3Outreach and recruiting...................................................................................................................3Assessment of external outreach and recruitment efforts for IWDs .........................................5IWD self-identification ....................................................................................................................6Data collection...................................................................................................................................7Utilization analysis ...........................................................................................................................8Other changes....................................................................................................................................8

VEVRAA: Protected veterans .........................................................................................................108 percent hiring benchmark ..........................................................................................................10Types of protected veterans...........................................................................................................11Job listings........................................................................................................................................11Outreach and recruiting.................................................................................................................12Assessment of external outreach and recruitment efforts for protected veterans ................14Veterans’ self-identification...........................................................................................................15Data collection.................................................................................................................................15Other changes..................................................................................................................................16

Affirmative action resources...........................................................................................................17

Appendix ............................................................................................................................................19

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On March 24, 2014, the U.S. Department of Labor’s Office of Fed-eral Contract Compliance Programs’ (OFCCPs) final rule requir-

ing affirmative action requirements for individuals with disabilitiesunder Section 503 of the Rehabilitation Act of 1973 and for protectedveterans under the Vietnam Era Veterans’ Readjustment AssistanceAct (VEVRAA) takes effect. The long anticipated final regulationswill substantially impact government contractors and their affirma-tive action plans for individuals with disabilities and protected veterans.

What happens on March 24, 2014?As of March 24, 2014, covered contractors must comply with all ele-ments of the VEVRAA and Section 503 final rules, except that con-tractors will be allowed to delay the new Affirmative Action Plan(AAP) requirements in Subpart C of the final rules (pertaining to theprogram requirements). Regardless, contractors must begin review-ing new program requirements and planning for change now inorder to be ready for the March 24, 2014, compliance deadline.

The OFCCP has stated that it will provide contractors with additionaltime between March 24 and contractors’ new plan year date to comeinto compliance with the new rule requirements, during which timethe OFCCP will provide technical assistance to facilitate the transi-tion for contractors. Contractors with a written AAP in place on thefinal rule’s effective date may maintain their AAPs until the end oftheir AAP year and delay compliance with the new AAP require-ments of Subpart C of the final rule until the start of the next AAPcycle.

So, for example, if a contractor’s plan year runs from October 1, 2013, to October 1, 2014, the contractor need not change its AAPs for veter-ans and disabled individuals until the new plan year, beginning onOctober 1, 2014. Note, however, that contractors will be required to

FEDERAL CONTRACTORS GETREADY FOR CHANGE: WHATTHE FINAL DISABILITY ANDVETERANS REGULATIONSMEAN FOR YOU

comply with the other requirements of the final rule, in subparts A(equal opportunity (EO) clause, job posting), B (nondiscrimination),D (enforcement), and E (recordkeeping), by the March 2014 effectivedate.

Although the OFCCP created a grace period for Subpart C, it is veryimportant for contractors to begin exploring compliance optionsright away. Many of the changes required by the final rules willrequire a large investment of time and effort to understand and comeinto compliance. In addition, since the final rule was published, theOFCCP has stated that it does not encourage contractors to wait untilthe new plan year to begin new program activities under Subpart C,such as soliciting self-identification of protected veteran or disabilitystatus. In fact, the OFCCP recently “recommended” that all contrac-tors begin complying with Subpart C of the new regulations beforethe issuance of their first AAP under the new rules and stronglyencouraged contractors to take these steps as soon “as practicable”after the March 24 effective date.

What happens if you are not incompliance on March 24?The OFCCP issued the final rules under Section 503 and VEVRAA to update and strengthen contractors’ affirmative action and nondis-crimination responsibilities in order to address what it calls a “sub-stantial disparity” in the employment rate of individuals withdisabilities (IWDs) and protected veterans. Failure to meet the techni-cal requirements of the new rule, such as proper use of the new EOstatement and fulfilling job-listing requirements as required underthe new rule, will result in a finding of noncompliance. Failure tomeet the newly established goals and benchmarks for hiring veteransand disabled individuals will not result in a finding of discrimina-tion, but will require the contractor to undertake detailed and time-consuming steps to determine whether and where impediments toequal employment exist.

Make no mistake. The OFCCP will be working hard to enforce thenew rules, compelling contractors to come into compliance with thenew requirements. In recent years, the OFCCP has undertaken anunprecedented effort to conduct compliance reviews and enforce-ment efforts. The new final rules reflect those continued efforts. Inaddition, the agency’s budget and personnel levels have increasedfor several years, resulting in nearly 19,000 reviews of federal con-tractor establishments and more than $45 million in financial reme-dies for 84,000 workers who the OFCCP believed were affected bydiscrimination.


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When the final rules take effect on March 24, 2014, the OFCCP willfocus its compliance efforts on affirmative action requirements forprotected veterans and individuals with disabilities as it never hasbefore. Affirmative action professionals fully expect a dramaticincrease in the number of AAP audits the OFCCP will conduct forprotected veterans and IWDs. Armed with the new final regulations,the OFCCP will be checking new AAPs for protected veterans andIWDs very carefully to ensure that the new compliance requirementsare met. In order to avoid an unsuccessful compliance review, con-tractors must be aware of what the new final rule requires and howto comply. For a checklist of activities contractors should be under-taking to prepare for the March 24, 2014, effective date (and beyond),see the Appendix to this report.

What the final rule requires—Section 503: Individuals withdisabilitiesThe Section 503 final rule creates many new requirements for affirma-tive action in disability, including:

7 percent utilization goalCovered contractors and subcontractors will be required to establisha new 7 percent utilization goal for IWDs. The OFCCP arrived at the7 percent utilization goal figure primarily by using information takenfrom the disability data collected as part of the American CommunitySurvey—a census-type collection effort by the U.S. government.

Under the new rule, covered contractors and subcontractors withmore than 100 employees must use the national 7 percent utilizationgoal and, in most instances, apply it to the same job groups createdfor Executive Order 11246 AAPs. Smaller contractors that use EEO-1job categories as job groups in their Executive Order AAP can applythe 7 percent utilization goal to those EEO-1 job categories. A contrac-tor with a total of 100 or fewer employees need only apply the uti-lization goal to its workforce as a whole (i.e., no job categories orgroup utilization analysis is necessary).

Outreach and recruitingThe final Section 503 rule requires that contractors undertake “appro-priate outreach and positive recruitment activities.” In order to provethat appropriate outreach and recruiting activities were undertaken,contractors must carefully track and fully report on all outreach and

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recruiting efforts. Compliance with the new tracking and reportingrequirements will substantially add to the administrative burden ofmaintaining affirmative action compliance efforts.

The rule contains the following list of suggested outreach organiza-tions and activities that may be undertaken to satisfy this requirement:

• The State Vocational Rehabilitation Agency (SVRA), Statemental health agency, or state developmental disability agencyin the area of the contractor’s establishment;

• The Employment One-Stop Career Center (One-Stop) orAmerican Job Center nearest the contractor’s establishment;

• The Department of Veterans Affairs Regional Office nearestthe contractor’s establishment (www.va.gov);

• Entities funded by the Department of Labor that providerecruitment or training services for individuals with disabili-ties, such as the services currently provided through theEmployer Assistance and Resource Network (EARN)(www.askearn.org);

• Local Employment Network (EN) organizations (other thanthe contractor, if the contractor is an EN) listed in the SocialSecurity Administration’s Ticket to Work Employment Net-work Directory (www.yourtickettowork.com/endir);

• Local disability groups, organizations, or Centers for Inde-pendent Living (CIL) near the contractor’s establishment;

• Placement or career offices of educational institutions thatspecialize in the placement of individuals with disabilities; and

• Private recruitment sources, such as professional organiza-tions or employment placement services that specialize in the placement of individuals with disabilities.

It is important to note that OFCCP's "suggested" methods of outreachand recruitment are not exclusive. Contractors may choose to imple-ment additional and different methods for locating and recruitingqualified IWDs.

The final Section 503 rule also suggests that contractors considertaking specific actions to provide equal employment opportunitiesfor IWDs, including:

• Hold formal briefing sessions, preferably on company prem-ises, with representatives from recruiting sources, includingfacility tours and clear and concise explanations of current andfuture job openings, position descriptions, worker specifica-tions, explanations of the company’s selection process, and


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recruiting literature. The company official in charge of thecontractor’s affirmative action program should be in atten-dance when possible;

• Make formal arrangements for referral of applicants, followup with sources and feedback on disposition of applicants;

• Recruitment efforts at all educational institutions shouldincorporate special efforts to reach students who are individu-als with disabilities;

• Participate in work-study programs for students, trainees, orinterns with disabilities (found through outreach to state andlocal schools and universities, and through EARN);

• Make employees with disabilities available for participationin career days, youth motivation programs, and related activi-ties in their communities;

• Take any other positive steps the contractor deems necessaryto attract individuals with disabilities not currently in theworkforce who have requisite skills and can be recruitedthrough affirmative action measures (i.e., locating such indi-viduals through state and local agencies supported by the U.S.Department of Education’s Rehabilitation Services Adminis-tration (RSA) (http://rsa.ed.gov), local Ticket-to-Work Employ-ment Networks, or local chapters of groups or organizationsthat provide services for individuals with disabilities);

• Consider applicants in the hiring process who are known tohave disabilities for all available positions for which they maybe qualified when the position(s) applied for is unavailable.

Assessment of external outreach and recruitment efforts for IWDsIn addition to conducting the various outreach and recruiting effortsdescribed above, the final Section 503 rule requires that contractorsassess the success of those efforts by doing the following:

1. Annually review the outreach and recruitment efforts taken overthe previous 12 months.

2. Evaluate the effectiveness of the outreach and recruitment effortstaken over the previous 12 months in identifying and recruitingqualified IWDs.

3. Document each evaluation, including at a minimum the criteria(including data, listed below) used to evaluate the effectivenessof each effort and a conclusion as to whether each effort was effective.

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4. Conclude. Draw a conclusion as to whether the totality of theoutreach and recruitment efforts was effective in identifying and recruiting qualified individuals with disabilities.

If the conclusion of the evaluation is that the totality of the outreachand recruitment efforts was not effective in identifying and recruitingqualified IWDs, contractors must identify and implement alternativeefforts for outreach and recruitment listed in the final rule.

For the purposes of assessment, the data to be reviewed and evalu-ated include (for the current year and the 2 most recent previousyears):

1. The number of applicants who self-identified as IWDs or whoare otherwise known to be IWDs;

2. The total number of job openings and total number of jobs filled;

3. The total number of applicants for all jobs;

4. The number of applicants with disabilities hired; and

5. The total number of applicants hired.

Note: According to the OFCCP, “jobs filled” refers to all jobs the com-pany filled by any means, be it through a competitive process or non-competitively (e.g., through reassignment or merit promotion). It,therefore, should take into account both new hires into the companyand those employees who were placed into new positions via promo-tions, transfers, and reassignments. In contrast, the number of those“hired” refers solely to those applicants (both internal and external tothe contractor) who are hired through a competitive process, includ-ing promotions.

The “total number of job openings” refers to the number of individ-ual positions advertised as open in a job vacancy announcement orrequisition. For example, if one job vacancy announcement or requi-sition includes five open positions and results in four hires, the con-tractor would document this as five job openings and four jobs filled.

All records relating to the assessment of external outreach andrecruiting efforts must be retained for 3 years.

IWD self-identification Under the final Section 503 rule, all applicants must be given theopportunity to self-identify as an IWD at both the preoffer and post-offer phases of the application process, using a form to be created bythe OFCCP for this purpose. The form must be used as it is createdby the OFCCP—no contractor changes or customization will beallowed. An electronic version of the form may be used, as long as it


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follows OFCCP’s specific criteria for font, OMB number labeling, andtext. When OFCCP’s self-identification form is finalized, the agencysays it will post a copy for use on the agency website(www.dol.gov/ofccp).

The invitation to self-identify as an IWD must be provided to eachapplicant when the applicant applies or is considered for employ-ment. The invitation may be included with the application materialsfor a position but must be separate from the application.

The final rule also requires that incumbent employees be invited to self-identify as an IWD during the first year after the contractbecomes subject to the rule requirements and every 5 years thereafter.The contractor must use the prescribed language in OFCCP’s soon-to-be released self-identification form in soliciting self-identification.Covered contractors are also required to remind employees that theymay voluntarily update their disability status at least once during the5 years between invitations to self-identify.

If an employee or applicant does not self-identify as being disabled,the final Section 503 rule allows the contractor to make its own visualidentification, based on either clearly observed disabilities (i.e., blind-ness) or disclosure by the applicant during the application process(i.e., request for an accommodation during the hiring process). How-ever, it is important to note that contractors may not guess or specu-late when doing so.

Data collectionUnder the final Section 503 rule, on an annual basis, covered contrac-tors and subcontractors must collect specific data relating to appli-cants and hires and maintain such records for a period of 3 years. The data to be collected by each covered contractor and subcontrac-tor are:

• The number of applicants who self-identified as IWDs or who are otherwise known to be IWDs;

• The total number of job openings and total number of jobs filled;

• The total number of applicants for all jobs;

• The number of applicants with disabilities hired; and

• The total number of applicants hired.

The definitions for “job openings” and “jobs filled” described in thesection on assessment of external outreach and recruitment (above)apply to the requirements for IWD data collection.

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Utilization analysisThe final Section 503 rule requires that covered contractors and sub-contractors conduct an annual utilization analysis and assessment ofproblem areas and establish specific action-oriented programs toaddress any identified problems.

If the contractor’s analysis shows that the percentage of IWDs is lessthan the 7 percent utilization goal, the contractor must take steps todetermine whether and where impediments to equal employmentexist. This includes assessing existing personnel processes, the effective-ness of its outreach and recruitment efforts, the results of its AAP audit,and any other areas that might affect the success of the AAP. After con-ducting this assessment, the contractor must develop and executeaction-oriented programs to correct any identified problem areas.

The OFCCP says that failure to meet a utilization goal will not be aviolation of the regulations and will not lead to a fine, penalty, orsanction. However, failure to set a goal or conduct utilization analy-sis and assessment of problem areas may result in adverse action bythe OFCCP.

Other changesIn addition to these major changes, other additional importantchanges included in the final Section 503 rule are:

• Definitions. The definition of “disability” has been revised,pursuant to the Americans with Disabilities Act AmendmentsAct (ADAAA) of 2008. The ADAAA expanded the definitionof a covered disability.

• EO clause. Each contracting agency and each contractor mustinclude the mandated EO clause in each of its covered govern-ment contracts or subcontracts. The final rule permits contrac-tors to incorporate the EO clause into subcontracts byreference, but only by citing to the EO clause in the regulations(41 CFR 60-741.5(a)) and including OFCCP’s mandatory clausein bold text. Covered contractors must state in all solicitationsor advertisements for employees that all qualified applicantswill receive consideration for employment and will not be dis-criminated against on the basis of disability. Contractors mayrefer to those protected by Section 503 by abbreviation, butsuch abbreviations must be commonly understood by appli-cants for employment. Simply using “D” is not an adequateabbreviation for disability. For those protected by Section 503,the tag line should, at a minimum, state “disability” so that itwill be clearly understood by jobseekers.


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• Review personnel policies. Contractors must ensure that itspersonnel processes provide for careful, thorough, and system-atic consideration of the job qualifications of applicants andemployees who are known IWDs for job vacancies, filledeither by hiring or promotion, and for all training opportuni-ties offered or available.

• Physical and mental qualifications. Contractors must provideand adhere to a schedule for the periodic review of all physicaland mental job qualification standards to ensure that, to theextent qualification standards tend to screen out qualified indi-viduals with disabilities, they are job-related for the position inquestion and are consistent with business necessity.

• Compliance evaluations. The final Section 503 rule cementsOFCCP’s position that it may obtain information pertinent to acompliance evaluation for periods after the date of the sched-uling letter. Under the final rule, the OFCCP may extend thetemporal scope of an evaluation and examine informationafter the date of the compliance evaluation scheduling letter,but only if the OFCCP deems it necessary to carry out itsinvestigation of potential Section 503 violations. The final rulealso requires that the contractor inform the OFCCP of theformat(s) in which it maintains records and other information(e.g., Word, PDF, Excel®), and provide the records and infor-mation to the OFCCP in the available format(s) the OFCCPselects (from the contractor’s available formats). The OFCCPmay request that the contractor provide documents either on-site or off-site during compliance checks and that the OFCCPmay conduct focused reviews both on-site and off-site.

• Electronic posting. For employees who do not work at the con-tractor’s physical location, the OFCCP will allow a contractorto satisfy its posting obligation by posting the EEO notice inelectronic format, provided, the contractor either providesthese employees with computers that can access the electronicposting or has actual knowledge that the electronically postednotice is accessible to its employees.

• Availability of AAPs. Any applicant or employee who asks toinspect the contractor’s AAP is entitled to view the entire plan,with the exception of the data metrics required by Section 60-741.44(k). The location and hours during which the programmay be inspected must be posted at each establishment.

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VEVRAA: Protected veteransThe final VEVRAA rule now requires covered federal contractors andsubcontractors to collect data on veteran status and take specific,action-oriented steps in order to comply with the new affirmativeaction requirements for veterans. Those new requirements include:

8 percent hiring benchmarkThe final VEVRAA rule establishes a new 8 percent hiring “bench-mark” for protected veterans, which contractors must apply to theworkforce as a whole, by AAP establishment, not to individual jobgroups.

Contractors may choose to either adopt the benchmark determinedby the OFCCP, which is based on the national percentage of veteransin the civilian labor force (currently 8 percent), or in the alternative,covered contractors may choose to set their own benchmark. If a cov-ered contractor chooses to set its own hiring benchmark for veterans,the contractor must take the following factors into account:

1. The average percentage of veterans in the civilian labor force inthe state(s) where the contractor is located over the preceding 3years, as calculated by the Bureau of Labor Statistics and pub-lished on OFCCP’s website;

2. The number of veterans, over the previous 4 quarters, who wereparticipants in the employment service delivery system in thestate where the contractor is located, as tabulated by the Veter-ans’ Employment and Training Service and published onOFCCP’s website;

3. The applicant ratio and hiring ratio for the previous year, basedon the data collected by the contractor;

4. The contractor’s recent assessments of the effectiveness of itsexternal outreach and recruitment efforts; and

5. Any other factors, including but not limited to the nature of thecontractor’s job openings and/or its location, which would tendto affect the availability of qualified protected veterans.

Contractors may also set different benchmarks at different establish-ments. However, unless a contractor has a compelling reason to set abenchmark that is different from OFCCP’s established figure, and toavoid additional scrutiny by the OFCCP, it is likely that most contrac-tors will use OFCCP’s annually designated hiring benchmark ratherthan setting their own benchmarks.

Contractors must document the hiring benchmark used—eitherOFCCP’s figure or a benchmark established by the contractor. If the


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contractor establishes its own benchmark figure, it must documenteach of the factors that it considered in establishing the hiring bench-mark and the relative significance of each of the factors. A record ofbenchmarks must be retained for 3 years.

Types of protected veteransThe final VEVRAA regulations define “protected veteran” as fallinginto one of four new categories, as defined in the regulations at Sec.60-300.2:

• Disabled veterans;

• Recently separated veterans (3 years);

• Recipients of armed forces service medal; and

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

The last category replaces the former category for “other covered vet-eran.” The OFCCP believes that use of the new, fourth category willreduce confusion and what they believed was a tendency to catego-rize veterans as protected when they were not.

Job listingsVEVRAA’s regulatory requirements for listing positions are quiteonerous and can be burdensome for employers not familiar with the regulations and the rules of local job service systems. The finalVEVRAA rule requires that covered contractors list all employmentopenings with the appropriate employment service delivery system(ESDS) where the opening occurs nearest to where the job opening occurs.

Effective March 24, 2014, federal contractors subject to the finalVEVRAA rule are required to provide information about job vacan-cies in any manner and format permitted by the appropriate ESDS,which will allow that system to provide priority referral of veteransprotected by VEVRAA for that job vacancy. Permitted formats mayvary greatly between each ESDS, and contractors will be required toknow what the acceptable manner and format of reporting job vacan-cies is for each system they use.

The final rule allows contractors to utilize a privately run job serviceor exchange to satisfy the job-listing requirements, as long as theservice or exchange provides the information to the appropriateESDS in any manner and format that the ESDS permits, which willallow that system to provide priority referral of protected veterans.

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The final VEVRAA rule also requires that contractors advise theESDS in each state where it has establishments that:

1. It is a federal contractor, so that the ESDS is able to identifythem as such; and

2. It desires priority referrals from the state of protected veteransfor job openings at all locations within the state.

The contractor must provide the ESDS with the name and location of each hiring location within the state and the contact informationfor the contractor official responsible for hiring at each location. The“contractor official” may be a chief hiring official, a human resourcescontact, a senior management contact, or any other manager for thecontractor who can verify the information set forth in the job listingand receive priority referrals from ESDSs.

If the contractor uses any external job search organizations to assistin its hiring, the contractor must also provide to the ESDS the contactinformation for the job search organization(s). The disclosuresrequired by the final 2013 VEVRAA rule must be made simultane-ously with the contractor’s first job listing at each ESDS location after the effective date of the final rule (March 24, 2014).

If the information in the disclosures changes since it was lastreported to the ESDS location, the contractor must provide updatedinformation simultaneously with its next job listing. There is no needto advise the ESDS of subsequent contracts if the contractor is stillcovered by VEVRAA. The contractor may advise the ESDS when it is no longer bound by the job-listing requirements.

There are still exceptions to the VEVRAA job-posting requirementswhen the employment opening is filled outside of the United Statesand territories, or when the position is an executive, top managementposition, a position that will be filled from within the contractor’sorganization, or for temporary positions lasting less than 3 days.

Outreach and recruitingAs with the final rule for Section 503, the final VEVRAA rule identifiesa number of “suggested” resources for recruiting and developing on-the-job training opportunities for veterans. Those resources include:

• Local Veterans’ Employment Representative in the localemployment service office (i.e., One-Stop) nearest the contractor’s establishment;

• Department of Veterans Affairs Regional Office nearest thecontractor’s establishment;


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

• Service officers of the national veterans’ groups active in thearea of the contractor’s establishment;

• Local veterans’ groups and veterans’ service centers near thecontractor’s establishment;

• Department of Defense Transition Assistance Program (TAP)or any subsequent program that, in whole or in part, mightreplace TAP; and

• Any organization listed in the Employer Resources section ofthe National Resource Directory (https://www.nrd.gov) orany future service that replaces or complements it.

In addition, in the final VEVRAA rule, the OFCCP recommends thatcontractors undertake the following activities in order to reach andrecruit protected veterans:

• Hold formal briefing sessions. Hold formal briefing sessions,preferably on company premises, with representatives fromrecruiting sources. Contractor facility tours, clear and conciseexplanations of current and future job openings, positiondescriptions, worker specifications, explanations of the com-pany’s selection process, and recruiting literature should be anintegral part of the briefing. The company official in charge ofthe contractor’s affirmative action program should be in atten-dance when possible. Formal arrangements should be madefor referral of applicants, follow-up with sources, and feedbackon disposition of applicants.

• Efforts with educational institutions. The contractor’s recruit-ment efforts at all educational institutions should incorporatespecial efforts to reach students who are protected veterans.

• VA work study. An effort should be made to participate inwork-study programs with the Department of Veterans Affairs(VA) rehabilitation facilities, which specialize in training oreducating disabled veterans.

• Career days and other activities. Protected veterans should bemade available for participation in career days, youth motiva-tion programs, and related activities in their communities.

• Other steps. The contractor should take any other positivesteps it deems necessary to attract qualified protected veteransnot currently in the workforce who have requisite skills andcan be recruited through affirmative action measures. Thesepersons may be located through the local chapters of organiza-tions of and for any of the classifications of protected veterans.

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• Consideration of known protected veterans. The contractor, inmaking hiring decisions, should consider applicants who areknown protected veterans for all available positions for whichthey may be qualified when the position(s) applied for isunavailable.

• Other listing resources. The contractor should consider listingits job openings with the National Resource Directory’s Veterans Job Bank or any future service that replaces or complements it.

Assessment of external outreach and recruit-ment efforts for protected veteransIn addition to conducting the various outreach and recruiting effortsdescribed above, and as with the final rule under Section 503, cov-ered contractors must assess the success of outreach and recruitmentfor protected veterans by annually reviewing the efforts taken overthe previous 12 months, evaluating the effectiveness of the outreachand recruitment efforts, documenting each evaluation, including at a minimum the criteria (below) used to evaluate the effectiveness ofeach effort and a conclusion as to whether each effort was effective.

Finally, the contractor must draw a conclusion as to whether thetotality of the outreach and recruitment efforts was effective in iden-tifying and recruiting protected veterans. If the conclusion of theevaluation is that the totality of the outreach and recruitment effortswas not effective in identifying and recruiting qualified protected vet-erans, contractors must identify and implement alternative efforts foroutreach and recruitment listed in the final rule.

For the purposes of assessment, the data to be reviewed and evaluatedinclude (for the current year and the 2 most recent previous years):

1 The number of applicants who self-identified as protected veterans, or who are otherwise known to be protected veterans;



4. The number of protected veteran applicants hired; and


Note:As with Section 503, “jobs filled” refers to all jobs the companyfilled by any means, be it through a competitive process or non- - competitively (e.g., through reassignment or merit promotion). It,therefore, should take into account both new hires into the companyand those employees who were placed into new positions via promo-tions, transfers, and reassignments. In contrast, the number of those


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“hired” refers solely to those applicants (both internal and external tothe contractor) who are hired through a competitive process, includ-ing promotions.

The “total number of job openings” refers to the number of individ-ual positions advertised as open in a job vacancy announcement orrequisition. For example, if one job vacancy announcement or requi-sition includes five open positions and results in four hires, the con-tractor would document this as five job openings and four jobs filled.

All records relating to the assessment of external outreach andrecruiting efforts must be retained for 3 years.

Veterans’ self-identificationWhen the new final VEVRAA takes effect, contractors will berequired to invite all applicants to self-identify as protected veteransat both the preoffer and postoffer stages of the application process.The OFCCP has included a sample veterans’ self-identification formin Appendix B to the regulations.

For preoffer identification, the final rule permits contractors to inviteapplicants to self-identify generally as a “protected veteran” withoutspecifically identifying as a particular category of protected veteranstatus (i.e., disabled, recently separated). The rule specifies that thepreoffer self-identification request may occur at the same time thatthe contractor collects demographic data regarding race, gender, andethnicity from applicants as required by Executive Order 11246. Forthe postoffer solicitation, OFCCP’s sample form allows contractors toask applicants which specific category of protected veteran statusthey belong to.

Data collectionThe final VEVRAA rule requires contractors to undertake new datacollection activities in order to bolster and improve upon the dataavailable regarding veterans and employment. The rule requires con-tractors to document and update the following specific comparisonsand information regarding applicants and employees annually:

1. The number of applicants who self-identified as protected veter-ans or who are otherwise known to be protected veterans;



4. The number of protected veteran applicants hired; and


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The definitions for “job openings” and “jobs filled” described in thesection on assessment of external outreach and recruitment efforts(above) apply to the requirements for protected veterans’ data collection.

Other changesSome additional important changes included in the final VEVRAArule (and similar to the final Section 503 rule) are:

• EO clause. As with the Section 503 final rule, the new VEVRAArule requires covered contractors to state in solicitations andadvertisements that they are EEO employers for veterans. The final VEVRAA rule permits contractors to incorporate theEO clause into subcontracts by reference, but only by citingOFCCP’s mandatory clause in bold text. Contractors may referto those protected by VEVRAA by using an abbreviation, butthe abbreviation must be commonly understood by those seek-ing employment. Simply using a “V” is not an adequate abbre-viation. For VEVRAA-protected veterans, the tag line should,at a minimum, state “vet” so that the tagline will be clearlyunderstood by jobseekers.

• Review personnel policies. Contractors must ensure that itspersonnel processes provide for careful, thorough, and sys-tematic consideration of the job qualifications of applicantsand employees who are known protected veterans for jobvacancies, filled either by hiring or promotion, and for alltraining opportunities offered or available.

• Physical and mental qualifications. Contractors must provideand adhere to a schedule for the periodic review of all physicaland mental job qualification standards to ensure that, to theextent qualification standards tend to screen out qualified disabled veterans, they are job-related for the position in question and are consistent with business necessity.

• Use of electronic posting. For employees who do not work atthe contractor’s physical location, contractors may post the EOnotice in electronic format, provided that the contractor eitherprovides these employees with computers that can access theelectronic posting or the contractor has actual knowledge thatthe electronically posted notice is accessible to its employees.

• Compliance evaluations. As with the Section 503 regulations,the final VEVRAA rule cements OFCCP’s position that it mayobtain information pertinent to a compliance evaluation forperiods after the date of the scheduling letter. Under the finalVEVRAA rule, the OFCCP may extend the temporal scope of


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an evaluation and examine information after the date of thecompliance evaluation scheduling letter, but only if the OFCCPdeems it necessary to carry out its investigation of potentialVEVRAA violations. The final rule also requires that contrac-tors inform the OFCCP of the format(s) in which it maintainsrecords and other information (e.g., Word, PDF, Excel®), andprovide the records and information to the OFCCP in theavailable format(s) the OFCCP selects (from the contractor’savailable formats). The OFCCP may request that the contractorprovide documents either on-site or off-site during compliancechecks, and the OFCCP may conduct focused reviews both on-site and off-site.

Affirmative action resourcesLooking for more information on the final rules? The followingresources are available from BLR® and the OFCCP:

• BLR’s New Rule Resource Center: http://hr.blr.com/resource-centers/OFCCP-Regs-for-Federal-Contractors

• OFCCP websites for the new rules:—VEVRAA: http://www.dol.gov/ofccp/regs/compliance/

vevraa.htm

—Section 503: http://www.dol.gov/ofccp/regs/compliance/section503.htm

• OFCCP FAQs: —VEVRAA: http://www.dol.gov/ofccp/regs/compliance/

faqs/VEVRAA_faq.htm#Q34

—Section 503: http://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm

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AppendixPreparation checklist:Getting ready for the final affirmative action rules

The March 24, 2014, effective date for the new final rules is fastapproaching. In order to ensure compliance in time, consider the following checklist of things to do before the new rules begin, on the effective date, and in the first plan year after the effective date.

Before March 24, 2014

� Research available compliance solutions that can help savetime in meeting the new regulatory requirements.

� Consult with the IT department to ensure that personnel sys-tems are in place (but not yet active) to record and track newapplicant and hiring data for protected veterans and IWDs.

� Renew (or establish) relationships with placement officers atveterans’ and disability organizations. Create a database oforganizations and contacts for future use.

� Review personnel processes to ensure that they provide forcareful, thorough, and systematic consideration of the jobqualifications of applicants and employees who are knownIWDs and protected veterans (job vacancies, hiring or promo-tion, and all training opportunities). Make any necessary modifications to ensure that affirmative action and equalemployment obligations are carried out.

� Review physical and mental job qualification standards toensure that, to the extent qualification standards tend to screenout qualified IWDs and disabled veterans, they are job-relatedfor the position in question and are consistent with businessnecessity.

� Check electronic or online application systems to provide necessary, reasonable accommodation to ensure that qualifiedIWDs who are unable to fully utilize the application systemare provided equal opportunity to apply and be considered forall jobs.

� Review all notices and policies to ensure compliance with newlegal requirements. Revise as necessary.

� Update senior managers, HR, talent acquisition, and planowners on the final rules.

� Update purchase order statements.

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� Ensure that postings with each ESDS meet the state formatrequirements, and include contact information, status of thecompany as a contractor, and request for priority referrals.

� Include updated EEO statement with all job postings.

� Update harassment and antidiscrimination policies to includeIWDs and protected veterans.

� Update record retention policies for affirmative action pur-poses to 3 years for documentation pertaining to IWDs andveterans.

� Implement processes ensuring that notices posted electroni-cally are compliant and accessible to remote workers.

� Develop a method to track the effectiveness of recruitmentsources, good-faith efforts, and a method to incorporate find-ings into the AAP.

On March 24, 2014

� Use prescribed EO clauses in all covered contracts and subcontracts.

� Send labor organizations notices of the contractor’s commitment to taking affirmative action.

� Begin listing jobs with ESDS in compliance with new rules.

� Post revised bulletin board notices.

� Use the intranet and Internet for required postings, as appropriate.

� Include EO, affirmative action, and disability and protectedveteran terminology in EEO tag line in job advertisements.

� May begin using new voluntary self-identification forms andprocesses for IWDs and protected veterans (but may alsochoose to wait until new plan year begins after the March 24,2014, deadline).

With first affirmative action plan after March 24, 2014

� Describe review of personnel processes in the AAP.

� In the AAP, schedule and describe the review of physical and mental qualifications.

� Send policy notices to vendors.

� Ensure that appropriate measures are being taken to track and assess outreach and recruitment efforts in the event of an audit.


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� Assess the effectiveness of external outreach and recruitmentefforts.

� Report applicant and hire data.

� For VEVRAA—document hiring benchmark.

� For Section 503—develop utilization analysis.

� For Section 503—identify problem areas and corrective actions where underutilized.

� MUST begin using new voluntary self-identification forms and processes.

� Track job openings, positions filled, etc., to be included in theAAP metrics.

� Survey existing workforce for IWD status.

� Create a process to invite current employees to self-identify as IWDs every 5 years and an interim notification within the next 5 years.

� Include new statistics, assessments, and utilization analyses in new plans starting after March 24, 2014.

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