In today’s post as part of our “Countdown to March 24th Effective Date: Are you Ready to Flip the Switch?” series, we’ll be discussing the new obligation under the veterans and disability regulations that employers must now “assess the effectiveness” of their good faith outreach programs.

Back in 2011 when OFCCP first released the proposed veterans and disability regulations, Pat Shiu said “[w]hat gets measured gets done. And we’re in the business of getting things done.” That statement applies with full force to OFCCP’s perspective on veteran and disability outreach and recruitment efforts.

Contractors have long been required to engage in effective outreach and recruitment, now they have to prove what they’ve done and commit to making changes if their efforts aren’t working.

Under the new regulations employers must:

  • Annually evaluate the effectiveness of “each” of our veteran and disabled recruitment efforts over the previous 12 months.
  • Document the evaluation including:
    • The criteria used in the evaluation, which must include veteran and applicant / hiring data collected in the current and preceding 2 years.
    • A conclusion as to whether “each effort was effective.”

There are two sides, so to speak, of outreach “effectiveness” that you should keep in mind. First, contractors should evaluate the “push out” of job openings to those veteran and disabled organizations which are likely to refer qualified candidates. Second employers should monitor the “pull in” or the results of the “push out,” such as referrals and applicants. In order to do this effectively, your ATS should have the ability to track referrals and your third party vendors need to be able to provide you with this information.

Additional obligations include:

  • If you conclude the “totality” of your outreach efforts was ineffective, you must identify, document and implement alternative efforts, including those listed in 41 CFR 60-300.44(f)(1) and (2), and 60-741.44(f)(1) and (2).
  • Keep all annual evaluation documents for 3 years.

Even though the actual assessment of the effectiveness does not need to be completed until you next update your affirmative action plan, attention to improving outreach for veterans and the disabled should begin immediately. Why?

  • The current regulations require it!
  • Insufficient veteran and disabled outreach efforts have recently represented the majority of compliance violations cited by OFCCP.
  • An evaluation or your efforts in late-2014 or early-2015 may be too late for an audit.
  • Attention to improvement of outreach efforts now could avoid a painful conciliation agreement prior to late-2014 or early-2015.

Check back in tomorrow when we breakdown the difference between the myriad of EEO notifications employers must have in place after March 24.

Today’s installment of our “Countdown to March 24th Effective Date: Are you Ready to Flip the Switch?” series focuses on the enhanced obligations involving posting positions with state employment services.

Under the current VEVRAA regulations employers are required to list appropriate job openings with the state Employment Service Delivery System (ESDS) in the state where the position will be filled. Under the new regulations, contractors have additional obligations with respect to these mandatory postings.

With your first job postings after March 24, contractors must ensure they are proving the job posting in a manner and format permitted by the particular ESDS. It is critical to understand that third party vendors listing jobs for you must follow this same rule and the burden rests with the employer to ensure its job postings reach the state. And this is not just the case with this obligation – contractors remain responsible to ensure all of the state posting obligations are met and thus are liable for the shortcomings of their vendors. As such, it is imperative that contractors clearly negotiate and understand what their vendors are doing for them and, most importantly, what they are not agreeing to do.

In addition to adding a delivery method requirement, OFCCP has increased the type of information contractors have to provide. Going forward after March, 24, contractors must “advise” the ESDS in each state where it has a hiring location that:

  1. it is a federal contractor;
  2. it desires priority referrals of protected veterans for jobs at all locations within the state;
  3. the name and location of each hiring location in the state;
  4. contact information for an official responsible for hiring at each location; and
  5. contact information for any third party recruiting vendor the contractor uses.

OFCCP indicated during its Webinar on job postings that a statement on the job listing indicating “VEVRAA Federal Contractor” would suffice to satisfy No. 1 above.

With respect to No. 4, the regulations state that the contact information provided can be for a “chief hiring official, a human resources contact or any other manager for the contractor that can verify the information” in the job posting. Bottom line – you do not have to list the hiring manager at the location and can look to direct questions from ESDS to someone in HR or recruiting. Setting up a general e-mail address may also work as long as the Inbox is well attended and messages are responded to within 24 hours.

What is not clear is whether this information must be provided with each job listing, or whether it can be provided to each ESDS once via letter or email, and then updated as needed via letter or email. Based on OFCCP’s February 20 Webinar, OFCCP seems to be taking the position some or all of this information must be provided with each job listing. OFCCP’s PowerPoint slide 15 states: “Must indicate on job listings status as federal contractor and desire for priority referrals of protected veterans.” (Emphasis added). The Agency also indicated however that the information should be updated if any changes occur.

As a practical matter, it may make sense to include “VEVRAA Federal Contractor” on each ESDS job listing but not to provide the other required information with each listing. The rules and common sense would seem to require only that a letter or email be sent to each ESDS on or around March 24, and updated via letter or email as needed.

Stay tuned tomorrow when we discuss the new “Assessment of Effectiveness” obligation . . .

 

As the next installment of our “Countdown to March 24th Effective Date: Are you Ready to Flip the Switch?” let’s take a look at what employers need to be telling Job Seekers after March 24th . . .

A number of the new veteran and disability obligations effective March 24, 2014 involve notifying job seekers that your company is an EEO employer:

  • The “EEO is the Law” poster must still be conspicuously posted in physical locations for walk-in applicants (if applicable), and must be provided in a form accessible and understandable to those with a disability.
  • If you use an online application system, you must now also provide access to the “EEO is the Law” poster as part of the online system.  OFCCP has stated you may provide a hyperlink to the poster with a brief explanation of the link, such as:

[Company] is an equal opportunity employer and gives consideration for employment to qualified applicants without regard to race, color, religion, sex, national origin, disability or protected veteran status.  If you’d like more information about your EEO rights as an applicant under the law, please click here [hyperlink to poster].

  • The foregoing notice also fulfills another requirement –  updating your EEO tagline to include veteran and disability status. Although abbreviations such as “disability” and “vet” are allowed, OFCCP says “v” and “d” are not.  The EEO tagline must still be present in all job solicitations and ads.
  • Similarly, because the online hyperlink to the poster must be accessible to individuals with disabilities, contractors must continue to provide accessibility information as part of the online application system.  If you provide a 1-800 number or general e-mail address make sure they are being monitored continuously and inquiries are responded to within 24 hours.

Providing the accessibility notice in combination with the foregoing notice on the landing page of your Careers Web page should efficiently and effectively provide all the required applicant notices.

Check back tomorrow when we address state posting requirements.

Today will mark the first in a series of posts over the next week counting down to the March 24th effective date for OFCCP’s new Veteran and Disability regulations. During the next week we will seek to provide you with practical pointers and tips as you work through your checklists and prepare to “flip the switch” on implementation.

As the effective date rapidly draws near you should be looking to prioritize your implementation projects by those items that must be implemented by the March 24the effective date, and those that can (and should) wait until you next regularly update your affirmative action plan.

The regulations are broken into separate categories of obligations (Subpart C and Non-Subpart C) which have differing implementation deadlines.

For the following “Non-Subpart C” items, compliance is required as of March 24, 2014:

  • Online application – add notice of applicant rights
  • AA/EEO policy must state top U.S. Official supports policy
  • Update EO clause is in contracts, purchase orders, etc.
  • Include updated language in state job postings
  • Update definitions of protected veterans
  • Send Labor Organization notices of Company’s commitment to taking affirmative action
  • Modify EEO tag line in job advertisements

For obligations contained within Subpart C of the regulations, required compliance is driven by the date of your affirmative action plan. Compliance with Subpart C requirements does not have to occur until you next regularly update your Affirmative Action Plan after March 24th. For example, if you have a calendar year plan (January 1) your next regular update following implementation of the regulations will be January 1, 2015.  As such, you will need to comply with Subpart C obligations by January 1, 2015.

The Subpart C obligations include:

  • Assess effectiveness of external outreach and recruitment efforts
  • MUST begin using new Voluntary Self-ID forms and processes, including disability survey of current workforce
  • Begin collecting applicant and hire data for analysis
  • For VEVRAA – document Hiring Benchmark
  • For 503 – Develop Utilization Analysis
  • For 503 – Identify problem areas and corrective actions where underutilized
  • Describe review of personnel processes in AAP
  • Schedule and describe in the AAP the review of physical and mental qualifications
  • Send policy notices to vendors, etc.

OFCCP strongly encourages taking steps to comply with all parts of the regulations “as soon as practicable” after March 24, 2014, however OFCCP has said that employers will not be held in violation if they do not comply with Subpart C obligations until their next AAP.

Tune in on Monday for our next installment of this series when we discuss “how” and “what” type of information employers need to communicate to applicants.

Today, yet another chapter of the attenuated battle between OFCCP and the healthcare industry unfolded on Capitol Hill.  During a hearing on H.R. 3633, known as the Protecting Health Care Providers from Increased Administrative Burdens Act, Representative Tim Walberg, the bill’s sponsor, reported that Secretary of Labor Perez provided him with a letter detailing OFCCP’s promise to put a 5 year moritorium on compliance investigations of TRICARE employers.  Curiously, some TRICARE providers already recieve exemption from OFCCP jurisdiction.  Skeptical of the Agency’s intentions, Walberg questioned what would occur after the 5 year enforcement hiatus, stating:

If the secretary has accomplished anything [with this letter], he has signaled to our TRICARE providers the day of reckoning is only delayed.

While not explictly clear, it seems the Agency’s promise was a calculated attempt to reduce support for Representative Walberg’s bill – which would have implications for all of the healthcare community not just TRICARE participants.  H.R. 3633 goes beyond any present exemption for TRICARE providers and proposes to exclude from OFCCP jurisdiction all providers of health care services to individuals.

This drama is sure to continue to play out over the coming weeks and months and we’ll be sure to keep you aprised of any new developments so stay tuned . . .

In response to contractor requests, OFCCP submitted, and OMB approved, a fillable Spanish pdf version and Microsoft Word version of the  Voluntary Self-Identification of Disability form that will be required by the agency’s new regulations implementing Section 503 of the Rehabilitation Act.

An employer’s required use of the new self-ID form will depend on the date of the contractor’s affirmative action plan.  The requirement to invite applicants to provide their disability status is containted in Subpart C of the regulations.  Contractors must comply with the obligations of Subpart C when they next regularly update their AAP following March 24, 2014 – the effective date of the new regulations.

The forms are not yet posted on OFCCP’s website but can found on the OMB’s website.

In the fourth, and final, installment of its “Moving Toward Compliance” series, OFCCP today provided guidance to contractors on the new disability utilization goals and veteran hiring benchmarks. In addition to providing insight on the regulations the webinar included presentations from two disability and veteran organizations.

The Agency spent considerable time walking through examples of computing the veteran benchmark for those employers who choose not to adopt the national percentage of veterans in the civilian labor force data provided by OFCCP. During the presentation the presenters remarked that OFCCP “doesn’t expect employers to use the best approach, just an approach that is reasonable.” Despite that, it is clear based on today’s presentation that those employers who choose to go down the “create- your-own” route need to be prepared to defend the methodology and prove to OFCCP that their approach is “reasonable.”

Additional insights from the webinar included OFCCP confirming contractors are not permitted to use the 80% rule or any other statistical analyses when evaluating disability utilization and instead must look at “any difference” when assessing utilization achievement.

OFCCP also clarified that (despite seeming to infer to the contrary on slide 8 of the presentation) employers with 150 or fewer, but more than 100 employees, must apply the utilization goal by job group based on their job group structures. For employers with less than 100 employees the utilization goal can be applied to the entire workforce captured in the AAP.

OFCCP concluded the webinar with promises of “additional webinars to come on a variety of topics.” So as always, stay tuned . . .

President Obama’s OFCCP 2015 fiscal year budget proposal remains true to OFCCP’s recent increased enforcement objectives – including the Agency’s increased focused on pay equity enforcement.

The budget seeks an additional $1.1 million over the 2014 budget to be spread across the following areas:

  • 10 additional full-time employee equivalents (for a total 710) “to strengthen enforcement efforts to combat pay discrimination…”  If you remember, OFCCP’s fall 2013 Regulatory Agenda had set January 2014 for a revised Compensation Data Collection Tool;
  • Increased monitoring of potential discrimination in construction.  This is also consistent with OFCCP’s Regulatory Agenda which sets an April 2014 timetable for proposed new construction rules;
  • Monitoring of contractor efforts to recruit, hire and retain veterans and the disabled in the wake of the March 24, 2014 effective date of the new Regulations. To this end, the Budget documents state OFCCP will “ensure that contractors and subcontractors are provided linkages to recruitment sources for hiring and advancement of minorities, women, protected veterans, and individuals with disabilities.”  In connection with revising the veterans and disability regulations, OFCCP has recently updated these resources – which can be found here and here;
  • Audits – OFCCP projects 4,290 audits in 2015, up from 4,110 in 2014, “with a focus on both supply and service and construction reviews.”

The President’s support (and proposed funding) of OFCCP’s continued aggressive enforcement agenda means now, more than ever, employers, including construction contractors, need to make sure their affirmative action programs are in compliance and that they are thinking proactively about pay and hiring issues.

As we updated you last week, President Obama has signed an Executive Order increasing the minimum wage for employees of federal contractors to $10.10 an hour.  After reading the the Order many employers still have questions surrounding the impact of the President’s executive action.  We have prepared some FAQs to help answer these questions.

The President has ordered the Department of Labor is issue implementing regulations addressing this new Executive Order by October 14, 2014.  Prior to doing so, the Department will need to release, and make available for public comment, its proposed regulations.  As we learn more information about the proposed regulations and other details about the President’s Order we will let you know.

In an effort to provide continuing guidance to the contratcor community as the effective date for the revised VEVRAA and Section 503 regulations quickly approaches,OFCCP has released additional FAQs addressing questions about required Purchase Order Language as well as the obligaiton to “conspiculously store” the notice of applicant and employee rights with an electronic application.

With respect to the required Purchase Order language, OFCCP has finally clarified that contractors can conslidate the two required regulatory references into one sentence – as opposed to including two duplicate sentences citing to each regulation.

With respect to the notice of applicant and employee rights, OFCCP has now stated that while contractors may include a copy of the language from the EEO is the Law poster into its applications or on its career page, they are not required to do so.  The Agency has confirmed that employers will satisfy this obligation 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.”

As March 24, 2014 draws near, the Agency will likely continue to provide further guidance on implemenataion of the new obligations under the new veterans and disability regulations.  We will continue to provide you updates as we receive them.