As a refresher, we want to remind all federal contractors that the U.S. Department of Labor’s Office of Federal Contract Compliance Programs revised the affirmative action regulations with regard to the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) at 41 CFR Part 60-300 and to Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. The changes, which took effect on March 24, 2014, have increased the obligations for contractors to collect and report on data, as well as to manage and improve efforts to prevent discrimination against protected veterans and individuals with disabilities in employment.
What contractors should be doing to comply with the revised regulations:
- Self-Identification – Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) and Section 503 of the Rehabilitation Act of 1973, as amended require that contractors invite applicants and employees to self-identify as protected veterans at both the pre-offer and post-offer phases of the application/selection process. The new regulations also require that contractors invite applicants and employees to self-identify as an individual with a disability at both the pre-offer and post-offer phases of the application/selection process.
*Note that with the VEVRAA final rule, which revised the reporting requirements and replaced the VETS 100A report with the VETS-4212 report, you no longer have the obligation to report on specific veteran categories.
- Policy Statement – Contractors must revise their policy statement to indicate the top U.S. executive’s support of the contractor’s affirmative action program.
- Job Posting Tagline – Contractors must modify their current tagline used in job postings to reflect the revised regulations, which requires the tagline to incorporate references to protected veterans and individuals with disabilities. Our recommendation is that you use a tagline similar to the following:
“Company name” is an EEO/AA/Disability/Vets Employer
- EO Clause – Contractors must modify their current EO clause in subcontracts and purchase orders to reflect the revised regulations. Rather than including the entire language of each of the EO clauses, contractors can reference all EO clauses into a single “incorporation by reference” clause, provided that the entire combined clause is set in bold text and cites the following regulations, 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 60-741.5(a). The statement can be found on OFCCP’s website and is also included below:
This contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
- Reasonable accommodations- Any reasonable accommodations that are requested (i.e. for disabilities, medical reasons, and religious practices) need to be documented. In addition, ensure that you are documenting any accommodations that have been made as well as the reasoning for any accommodations that were denied.
- Utilization Goal for Section 503 – The revised regulations establish a nationwide 7% employment utilization goal for individuals with disabilities, meaning that individuals with disabilities should represent 7% of your workforce. Contractors will apply this 7% goal to each of their job groups or to their workforce as a whole if the contractor has 100 or fewer employees. As part of your AAP preparation, CRI will conduct a utilization analysis and assessment of problem areas, and will incorporate your specific action-oriented programs to address any identified problems in your AAP.
- Established VEVRAA Hiring Benchmark – The revised regulations require that contractors establish a hiring benchmark for protected veterans annually and must maintain records related to their benchmark for three years, allowing them to assess the success of their outreach and recruitment efforts for veterans over time. Contractors may establish a benchmark equal to the national percentage of veterans in the civilian labor force (currently 7%), or may establish their own benchmark by taking into account factors that the OFCCP has established.
- Assessment of Outreach for Protected Veterans and Individuals with Disabilities- Current regulations require that contractors assess their outreach and recruitment efforts and document this evaluation each year. The evaluation needs to include the criteria the contractor used to evaluate the effectiveness of each effort and the contractor´s conclusion as to whether each effort was effective.
- Review of Personnel Processes- The revised regulations require contractors to conduct an assessment of personnel processes as required by CFR 60-300.44 (b) and 60-741.44 (b). This assessment must include the date the assessment was performed, any actions taken or changes made as a result of the assessment, and the date of the next scheduled assessment.
- Review of Physical and Mental Qualifications –The revised regulations require contractors to conduct an assessment of physical and mental qualifications, as required by 41 CFR 60-300.44 (c) and 60-741.44 (c). This assessment must include the date the assessment was performed, any actions taken or changes made as a result of the assessment, and the date of the next scheduled assessment.
- Records Collection and Retention – Contractors must retain the following records for a period of three years
- the number of protected veteran applicants;
- the total number of job openings and the number of jobs filled
- the total number of applicants for all jobs.
- the total number of protected veteran applicants hired
- the total number of applicants hired
- the total number of applicants for employment
- the number of applicants who are known individuals with disabilities
- the total number of job openings
- the number of jobs filled, and the number of individuals with disabilities hired
- the total number of job openings and the number of jobs that are filled.
In addition, contractors must maintain the following records for three years:
- Evaluations of outreach and recruitment efforts (41 CFR 60-300.44(f))
- Records pertaining to the data collection of comparisons regarding applicants and employees (41 CFR 60-300.44(k))
- Records related to the hiring benchmark requirement (41 CFR 60-300.45)
The takeaway:While the revised regulations may seem overwhelming, the OFCCP has expressed that they understand that a contractor’s first AAP after the revised regulations took effect (March 24, 2014) is a transition year and that in an audit their focus will be on evaluating the good faith efforts you’ve made toward implementing the new requirements as opposed to the final outcome of the analyses.