Under OFCCP’s new 503 regulations covering individuals with disabilities, employers must use the prescribed form to be provided by OFCCP to solicit disability status of applicants and employees.  OFCCP has sent to the Office of Management and Budget (OMB) for review.  It can be found here.  OMB must approve this form before OFCCP can require its use by federal contractors.  Many contractors and employer associations have already provided to OMB comments raising concerns and proposing changes to the proposed form.

The form includes a section for applicants and employees to identify themselves as disabled and to indicate if they need an accommodation.  The form also includes a brief definition of “disability” that complies with the ADA – however, it does not restate the ADA’s full definition of the term, which may result in underreporting of disability status.  The form then asks applicants and employees to either check a box marked “Yes, I have a disability (or have previously had a disability)” or “No, I don’t wish to identify as having a disability” and requests them to fill out more information regarding reasonable accommodations, “If, because of your disability, you require a reasonable accommodation such as a change to application or work procedures, documents in an alternate format, sign language interpreter, or specialized equipment, please let us know.”

Notably, this form does not contain a place for the name of an applicant or employee.  Since OFCCP encourages employers to keep self-ID forms separate from personnel files, employers will necessarily have to annotate on the form or elsewhere (since OFCCP says the form cannot be modified) the name of the individual if this is not added during the OMB review and the form remains as is.

In addition, the form asks all applicants and employees who have a current or past disability to mark “yes.”  While this may be helpful in increasing the representation of disabled employees in employer data to meet the 7% disabled “goal” required by the new regulations, this is problematic for several reasons.  First, disabled status often can change over time, which is precisely why employers are required to resurvey employees every five years and remind them at least once in between of their ability to self-identify under the new regulations.  Second, employers historically have not wanted applicants and employees to self-identify as disabled because:

(i)  this information is sensitive and could lead to increased failure-to-hire claims alleging disability discrimination with the EEOC since the “regarded as” prong of the ADA will be met (employers will know these candidates are “disabled) and

(ii)  if OFCCP runs adverse impact analyses, the higher numbers of disabled individuals who were not selected will likely lead to adverse impact trends employers will be called upon to defend.

Similarly, the “no” option seems to suggest that the individual does not wish to self-identify, but not necessarily because he/she is not disabled.  Individuals who are not disabled may have difficultly discerning which box to check.  As a result, the way options are worded likely will result in higher numbers of individuals self-identifying as “disabled” and may be problematic for employers.

Finally, the form states that companies “are required to invite…employees to self-identify each year,” which is not required by the regulations.  As described above, the regulations only require employers to resurvey for disability status once every five years.  Employers also must remind employees they may self-identify once within that five year period.

Many of these issues have been addressed in pending comments to the form and, hopefully, they will be addressed during OMB review.  We expect a different form in its final version.  Stay tuned…

Government contractors in the process of hiring new employees may be the first to experience ramifications from the government shutdown.  The E-Verify system is “unavailable due to a government shutdown” as described when employers go to log into their E-Verify accounts.  So, what should employers do to comply with the E-Verify requirements during the shutdown?  The JL Immigration Practice Group put out a blog post today on how to handle this situation.  Click on the blog post link for more information and to subscribe to their blog.

The federal government shut down all non-essential functions as of Tuesday at 12am.  All OFCCP personnel have been declared “non-essential”, so OFCCP has ceased all operations for the duration of the shutdown.

Ironically, OFCCP just sent a wave of audit letters to employers, apparently to get them out by the end of OFCCP’s fiscal year on September 30th. Those AAPs are due for the submission 30 days after receipt of the audit letter.  Employers should consider whether to submit an AAP – which typically includes confidential and sensitive data and information – during the shutdown since there is no one at OFCCP’s offices to receive it.  Instead, consider holding onto the plan until OFCCP returns.  You can also send an email to the Compliance Officer or District Director noted in the audit letter – the email address will be last name.first name@dol.gov – indicating you are holding the plan because of the shutdown and to please contact you upon their return.

Employers in the middle of an audit and in the process of responding to OFCCP post-submission requests should also consider the effects of the shutdown.  While the shutdown may give you more time to prepare the responses, you should not count on the shutdown for substantially more time.  The shutdown could be over quickly and, if so, OFCCP Compliance Officers will be expecting the responses when they get back.  In addition, the District Directors could issue Show Cause Notices for failure to submit upon return.  Therefore, if the information can be submitted by email, consider whether to submit in the time-frame you normally would or submitting upon return (without waiting for the Compliance Officer to follow-up).

 

 

On August 27, 2013, OFCCP released new regulations updating Section 503 of the Rehabilitation Act and Section 4212 of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) that impose significant additional obligations on employers.  The final regulations were published today in the Federal Register (to review, click here: Section 503 and VEVRAA) and become effective 180 days from publication — on March 24, 2014.  Employers will therefore have to be in compliance with all elements of the new regulations by March 24, 2014 except for those requirements included in Subpart C, which will instead become effective with your next AAP cycle after March 24, 2014.  More to come on any changes to the final rules as published…  For now, mark your calendars.

The filing deadline for VETS-100 and VETS-100A reporting has been extended until October 31, 2013 for all employers.  This is likely due to technical issues — the website was revamped, filing was opened up late again this year, and logins/passwords were reset for employers.  The extension notice only appears on the first page of the site; if your team goes straight to the login page (where it does not appear), they may not be aware of the extension.  So, pease spread the word to those in your company responsible for reporting…

In just the past few months, OFCCP published Directive 307 – radically changing the way the Agency conducts pay investigations – issued the revised Federal Contractor Compliance Manual (FCCM), and announced the new Veterans and Disability regulations.  All told, more than 1,000 pages of new/revised/updated rules, regulations and enforcement methods.  Let’s give OFCCP points for its ambitious change agenda and that they were able to (finally) get these changes out.  Now, the employer community needs to learn how to respond.

With that in mind, I’m pleased to share I will be a member of the program faculty for The OFCCP Institute’s Fall, 2013 educational conferences.  The comprehensive, two-day in-person conferences will take place October 16-17th in Houston, November 5-6th in DC and November 20-21st in Los Angeles.  To learn more about the conferences and to register, click here.  Hope to see you there.

This may be considered attorney advertising in some states.

 

OFCCP recently entered into two hiring settlements where the Agency alleged systemic discrimination against male applicants. These settlements reminds us OFCCP is not just focused on statistical trends against minorities and females, but that the Agency is also running adverse impact analyses against whites and males and will “go where the numbers take them.”

In our experience working with employers, some AAP software only “red flag” adverse impact analyses for minorities and females. Employers should take this opportunity to check their software and/or AAPs to ensure the statistical analyses are looking for trends against whites and males as well. In your software and AAPs, this may be reflected by a negative standard deviation (for example, -2 standard deviations reflects a statistically significant trend against the traditionally favored group, either non-minorities or males).

If you are not running these analyses, there could be big potential liability lurking beneath the surface OFCCP will find in an audit. [Along these same lines, check your software/AAPs to ensure the standard deviation calculation is turned “on” and run in this way. While the Uniform Guidelines’ 80% Rule is still the statistical “rule of thumb” , OFCCP analyzes the data (and makes findings) based on a standard deviation analysis, so it is important that we run the analyses the same way to identify potential problem areas.]

 

Over the past few weeks, we provided our initial assessment of the OFCCP’s new disability and veterans regulations.  We also held our first in a series of complimentary webinars to help the employer community better understand their new obligations and the implications for your budgets, staffing and IT systems.  More to come soon in the second and third webinars in the series.

When it comes to education about the new regulations, more is better. With that in mind, I will be a featured presenter at The OFCCP Institute’s in-person program on September 24th in Washington, D.C. about the new regulations.  If you are interested in attending, here is a link to the program description and invitation.

The latest buzz – not surprisingly – revolves around the long-awaited OFCCP veteran and disability regulations.  We already blogged about our initial observations of the new Section 503 regulations, now it’s time to focus on the new veterans regulations…

Like the new Section 503 regulations, the new veterans regulations create additional data obligations for employers.  More specifically, we will be required to collect and analyze:

  1. The number of applicants who self-identified as protected veterans;
  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 protected veteran applicants hired; and,
  5. The total number of applicants hired.

This information must be kept for three years.

The second biggest change is a new “hiring benchmark” – the Agency was careful not to call it a “goal” – based on either the national average of working veterans (currently at 8%) or the employer’s own analysis of an appropriate benchmark given its location, track records on recruitment and hiring of veterans, and other factors.  Of course, an employer’s “benchmark” is subject to OFCCP review, so information on all factors considered and calculations must be retained for the three-year period. 

In addition, for the first time, employers must solicit and track the veteran status of applicants.  The new veterans regulations include a “Sample Invitation(s) to Self-Identify” employers may use (compared to, under the new Section 503 regulations, the form OFCCP will provide employers must use to request applicants to self-identify as disabled).  Therefore, employers may create their own veteran self-ID forms, but the forms should reflect the veteran definitions created by the new regulations, including the general term “Protected Veteran” and specific catgeories “Active Duty or Wartime Campaign Badge Veteran” (replacing “Other Protected Veteran”) and “Pre-JVA Veteran.”   

There are other new requirements as well, including a new EO clause, record retention obligations, tagline for job postings and advertisements, and obligations regarding disclosing and providing OFCCP access to company records during audits.  In addition, the new regulations rescind Part 250, so all employers will report on only the VETS-100A, not VETS-100, Reports each year.

The new regulations will become effective 180 days after they are published in the Federal Register – likely in the spring of 2014.  Notably, the most significant changes to the regulations (those involving AAP requirements in Subpart C) take effect with employer’s AAP cycle following the effective date. 

We are hosting complimentary webcasts this fall to delve deeper into the new regulations.  Stay tuned for more blog postings on specific issues that catch our eye and raise questions for employers.

As we’ve mentioned in our previous posts about the new Veterans and Disability Regulations we will be providing information and insights about the new regulations in various forms over the upcoming weeks, including through a series of three complimentary webcasts.

The first of these webcasts, to be released September 9th, will provide an overview of both rules and address practical questions raised by these new regulations.

Future webcasts will delve into the substantive obligations of each rule and provide practical, cost-effective guidance and best practices for a smooth and swift tansition into compliance. Be sure to be on the look-out for further communciations about these events.