ofccp update handout with notes
TRANSCRIPT
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Lynn A. Clements | Jackson Lewis LLP
Partner
Sponsored by
October 9, 2013
OFCCP Issues Final Rules for VEVRAA and
Section 503: What’s Next for You?
Introductory Statement
THE MATERIALS CONTAINED IN THIS PRESENTATION
WERE PREPARED BY THE LAW FIRM OF JACKSON
LEWIS LLP FOR THE PARTICIPANTS’ OWN
REFERENCE IN CONNECTION WITH EDUCATION
SEMINARS PRESENTED BY JACKSON LEWIS
LLP. ATTENDEES SHOULD CONSULT WITH COUNSEL
BEFORE TAKING ANY ACTIONS AND SHOULD NOT
CONSIDER THESE MATERIALS OR DISCUSSIONS
THEREABOUT TO BE LEGAL OR OTHER ADVICE.
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Agenda
• Background regarding Section 503 and VEVRAA
rulemaking process
• Summary of Section 503 requirements
• Summary of VEVRAA requirements
• Implications for Compliance
• How to Prepare
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Section 503
• Section 503 of the Rehabilitation Act of 1973, as
amended
o Regulations regarding Section 503 in place since the 1970s
o Higher unemployment rate for individuals with disabilities
o Higher percentage of working age individuals with disabilities not
in the labor force
o Framework did not reflect the realities of today’s workplace or
current disability rights laws (ADAAA)
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VEVRAA
• Vietnam Era Veterans’ Readjustment Assistance Act of
1974
o Regulations have been unchanged since 1976
o Increasing numbers of veterans from Iraq, Afghanistan, and
other places around the world, face employment obstacles
o For example, in 2012:
• 9.9% unemployment rate for Gulf War-era II veterans,
compared to nonveterans at 7.9%
• 20% for male Gulf War-era II veterans age 18 to 24,
compared to 16.4% nonveterans of the same age group
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Background
• Late 2011 - OFCCP issues proposed regulations
o Many employers strongly opposed the proposed regulations as
striking an inappropriate balance between the utility of the
regulations and the compliance burdens they would impose
• July 2013 - OFCCP seeks approval of the Office of
Management and Budget
• August 27, 2013 – Vice President Biden announces new rules
• September 24, 2013 – New regulations published in the
Federal Register
• Final regulations are not effective – yet . . .
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What Just Happened?
• The new regulations are “game-changers”
o Enhanced obligations to document employment decisions
o New data collection obligations
o Longer record keeping obligations
o More burdensome and expensive compliance obligations
o Increased number of “unknowns” during OFCCP audits
o Increased need to coordinate between organizational SILOS
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What Didn’t Happen . . .
No 2% sub-goal for severely disabled
No requirement to justify non-selection of IWD and protected veterans
No requirement that you must consider IWD and protected veterans for other jobs (new wording is should)
No requirement to collect referral and ratio of priority referral data
No requirement to establish three linkage agreements
No annual review of physical and mental job qualifications (required periodically)
No annual reviews of personnel policies
No requirement to reproduce entire EO clause in contracts
No requirement to ask IWD and disabled veterans about accommodations (now optional)
No required training covering specific topic
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Effective Date
• Both sets of regulations will be effective 180 days after
the final rule is published in the Federal Register –
March 24, 2014
• Phased in compliance for AAP requirements –
employers with AAPs in place on effective date may wait
until next annual AAP cycle to implement all of Subpart C
o Subpart C includes invitation to self-id, data collection analyses,
utilization goals, hiring benchmarks, assessment of outreach and
recruitment efforts
o Open Question: What does this mean, exactly, for the time you
have to comply?
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New Pre-Offer Invitation to Self-ID
• Must invite all “applicants” to voluntarily self-identify as
an individual with a disability at the pre-offer stage of
hiring process
o Must use language prescribed by OFCCP
o Internet applicants may be invited post-screening for basic
qualifications
o EEOC’s Office of Legal Counsel provided written opinion stating
that these pre-offer inquiries do not violate the ADA
o “Fills large data gap” for the OFCCP - Allows OFCCP to see if
(and when) individuals with a disability has been screened out of
selection process
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New Post-Offer Invitation to Self-ID
• Post-Offer: Must also invite self-identification after offer
is extended but before work is started using OFCCP
standardized form
• Ongoing Obligation: Must survey (i.e. invite to self-ID)
all incumbent employees during the first year the
contractor becomes subject to Subpart C, and at 5-year
intervals thereafter, using OFCCP standardized form
o In between 5 year intervals, must remind employees at least
once of right to update information
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New Data Collection Analyses
• Must document “computations or comparisons pertaining to applicants and hires:”
o Number of total applicants who self-identified as IDW
o Total number of job openings and number of jobs filled
o Total number of applicants for all jobs
o Total number of IDW hired
o Total number of applicants hired
• Must maintain data (and any “computations”) for 3 years
• Preamble: OFCCP will not use applicant and hire data to conduct underutilization or impact ratio analyses and enforcement actions will not be brought solely on statistical disparities - ???
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New Workforce Utilization Goal
• 7% “utilization goal” for individuals with disabilities
o Applies to each job group in workforce (to prevent “steering”)
o Contractors with less than 100 employees may apply the goal to
entire workforce, not by job group
• OFCCP: “not a quota or ceiling … a management tool
that informs decision-making and provides real
accountability”
• Failing to meet goal, alone, is not a violation
o But contractor must develop action-oriented programs to remove
identified barriers to EEO for individuals with disabilities
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Outreach Assessment
• Written evaluation of effectiveness of outreach and recruitment
efforts for qualified IWDs over the previous 12 months, kept for 3
years
• Must Include:
o Criteria used to evaluate effectiveness of each effort
o Conclusion regarding effectiveness
• If a contractor determines that the totality of its effort was not
effective, it must implement alternative or additional outreach efforts
• OFCCP will determine if contractor’s conclusions were “reasonable”
in an audit
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Other Changes
• Amended definition of “disability” to incorporate ADAAA
changes
• New required EEO tagline in job listings
• Changes to the way an employer may incorporate the EEO
Clause into its purchase orders
o Must include specific, bolded language
• New obligations regarding disclosing and providing OFCCP
access to company records
• New rules regarding electronic EEO notices to employees
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Who Is Protected?
• 60-250 is rescinded
o 60-300 includes pre-JVA veterans in the
nondiscrimination prohibitions and complaint filing
provisions (if they still exist)
• Will still be called “VEVRAA” not “Section 4212” but
Vietnam Era Veterans are not part of AAP
• “Other protected veteran” is now “Active duty wartime or
campaign badge veteran”
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State Job Posting Requirement
• Must post job openings with state workforce agency job bank
or local employment service delivery system (ESDS)
o Must provide information in a manner and format permitted by
ESDS
o May use third parties to post with job boards
• With first job listing, contractor must:
o Inform ESDS that it seeks priority referrals of protected veterans
(e.g. “VEVRAA Federal Contractor” on job listings)
o Provide name, location and contact information for each hiring
location in the state and contact information for external job
search organizations
• Must provide ESDS with updated information if changes occur
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New Pre- and Post-Offer Invitations
to Self-ID
• Must invite all “applicants” to voluntarily self-identify as a
protected veteran (generally) pre-offer
o May use language provided by OFCCP
o Internet applicants may be invited post-screening for basic
qualifications
• Must invite all “offers” to voluntarily self-identify as a
specific category of protected veteran status post-
offer
o Permits analysis by separate veteran categories – similar to that
performed on sub-minorities by OFCCP
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New Data Collection Analyses
• Must document “computations or comparisons pertaining to
applicants and hires”:
• Number of total applicants who self-identified as protected veterans
• Total number of job openings and number of jobs filled
• Total number of applicants for all jobs
• Total number of protected veteran hired
• Total number of applicants hired
• Must maintain data (and any “computations”) for 3 years
• Preamble: OFCCP will not use applicant and hire data to conduct
underutilization or impact ratio analyses and enforcement actions
will not be brought solely based on statistical disparities - ???
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New Workforce Utilization
Benchmark
• 8% “hiring benchmark” for protected veterans (based on national percentage of veterans), OR
• Employer can establish own benchmark based on:
o Percentage of veterans in the labor force in the state over the last three years
o Number of veterans who participated in the employment delivery system
o Applicant and hiring ratios from the prior year
o Recent assessment of outreach efforts
o Any other factors (such as location) that would affect recruitment
• Must maintain for three years
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Other Changes
• Must document all activities associated with good faith
efforts, including job postings, communications, and
annual analyses of effectiveness
• New required EEO tagline in job listings
• Must submit job postings with state agencies in specific
formats that may vary by agency
• Changes to the way an employer may incorporate the
EEO Clause into its purchase orders
• New obligations regarding disclosing and providing
OFCCP access to company records
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Impact on Enforcement
• The new regulations tell us what contractors are
supposed to do.
• BUT what OFCCP will do with this new information is an
open question.
o New FCCM does not cover revised regulations.
o Will IRAs be run on applicant data at some point by the agency?
o Should you be looking at these issues proactively?
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Budgeting
• The new regulations effectively double your AAP
statistical / analytics obligations and add substantially
to your record keeping burdens.
• The cost of compliance will increase – get
stakeholders input and management buy-in for the
impact on your 2014 budget, and beyond.
• Is your organization staffed properly to handle the
increased time and resources necessary?
• Should you outsource certain compliance functions?
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How to Prepare
• Do a “Gap Analysis”
o Evaluate what practices you have in place
o Determine where your current practices do not align with the
new requirements
o Develop a detailed action plan with specific timetables for
completing tasks
o Identify who needs to be involved to help you implement your
action plan
• Be strategic about your compliance decisions based on
OFCCP’s potential use of the information.
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Things To Consider
• At what point in the hiring process must you offer
individuals the opportunity to self-identify as an IWD?
• Internet applicants may be invited post-screening for basic
qualifications
• Consider whether you should change the current timing of
voluntary self-identification process
• What changes need to be made to your HRIS, ATS and
online application systems?
• Incorporating OFCCP’s form
• Access to voluntary self-identification data
Things To Consider
• What must you do if an individual voluntarily self-
discloses his or her disability status?
• When does your obligation to engage in the interactive
process begin?
• Do you have an effective process to provide reasonable
accommodations during the hiring process?
• What steps should you take to make your online
application systems accessible to IWDs?
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Things To Consider
• Do you know if (and when) IWD have been screened out
of selection process?
• Do you have qualification standards? Can they be
justified under the ADA?
• Do you consider whether individuals can meet the basic
qualifications of the job with or without reasonable
accommodations?
• Do you provide hiring and work-related materials in
alternative formats?
• Are you ready to hire and retain IWD? 31
Things To Consider
• Are your job descriptions up to date and ADA compliant?
• Do you review physical and mental job requirements?
• Do you have a well-defined reasonable accommodation
process?
• How do you track reasonable accommodations?
• Have your leave polices been reviewed recently for
compliance with the ADA?
• Should you proactively conduct statistical analyses on
IWD and veteran hiring data? Consider A/C Privilege?
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What To Do Now
• Prepare your organization for longer audits with more
unknowns and greater risks
• Talk to your outside vendors to determine how they will
help you comply with the new requirements
• Plan for and make HRIS AND ATS system changes now
• Get the right people in the room to talk about AAP
compliance – dismantle internal silos
o HR, IT, Legal, Compensation
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Questions?
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If you have questions on the material covered in this
presentation, please feel free to contact the following:
Lynn A. Clements [email protected]
(410) 415-2009
Thank You for attending!
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