New OFCCP Veterans and Disabilities Regulations CCP

Transcription

1 New OFCCP Veterans and Disabilities Regulations CCP 1

2 Overview Section 503 of the Rehabilitation Act of 1973 Applies to contractors with a covered Federal contract or subcontract $10,000 Covered contractors and subcontractors with 50 or more employees and a Government contract or subcontract $50,000 must develop and maintain a written 503 affirmative action program Applies to supply and service and federal direct construction contractors (not federally-assisted construction contractors) Implementing regulations are at 41 CFR Part Littler Mendelson 2

3 Overview Vietnam Era Veterans Readjustment Assistance Act of 1974 Applies to contractors with a covered Federal contract or subcontract $100,000. Alternative jurisdictional criterion for contracts entered into prior to entered into before December 1, 2003 are no longer practically relevant Applies to supply and service and federal direct construction contractors (not federally-assisted construction contractors) Implementing regulations are at 41 CFR Part Littler Mendelson 3

4 Different implementation dates Seven items need to be ready to go by March 24, 2014 because they are not associated with Subpart C of the regulations The remainder of the obligations need to be complied with on or before the start date of your next affirmative action plan cycle, when that cycle starts again after March 24, 2014 April 1 to March 31 cycles: start immediately July 1 to June 30 cycles: three more months to get ready January 1 to December 31 cycles: nine more months to get ready Littler Mendelson 4

5 The Seven Items for March Replacing the old covered veteran catch-all term with the new protected veteran catch-all term, and replacing the old other protected veteran with the new term active duty wartime or campaign badge veteran on intranet pages, handbook pages, and the like. Everything EXCEPT the self-id form and the actual EEO policy itself, both of which are subpart C requirements The next time the top US executive has to re-issue the policy, it needs to be updated Littler Mendelson 5

6 What MUST be in a Policy top U.S. Executive s support for the AAP provide for an audit and reporting system assign responsibility for implementation state, among things, that the contractor will recruit, hire, train.. etc. without regard to veteran/disability status include the non-harassment/non-retaliation language (optional to have it in the policy itself) provide that the nonconfidential portions of the AAP may be available upon request by contacting (insert name) during hours. [it has to be communicated; not mandatory that it be in the same document that the executive signs] Littler Mendelson 6

7 Number Two 2. Advertisement language and tag line changes: EOE AA M/F/Vet/Disability Qualified applicants will receive consideration for employment without regard to their race, color, religion, national origin, sex, protected veteran status or disability Littler Mendelson 7

8 Number three 3. Insert new flow-down language in contracts entered into on or after 3/24/14 that places downstream vendors and suppliers on notice of their subcontractor obligations Littler Mendelson 8

9 Required Language for Purchase Orders and Subcontracts (VEVRAA) The following language must be included in bold typeface in subcontracts and purchase orders: This contractor and subcontractor shall abide by the requirements of 41 CFR (a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. Littler Mendelson 9

10 Required Language for Purchase Orders and Subcontracts ( 503) The following language must be included in bold typeface in subcontracts and purchase orders: This contractor and subcontractor shall abide by the requirements of 41 CFR (a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities. Littler Mendelson 10

11 Who is Covered? The VEVRAA Clause only applies to contracts of $100,000 or more For goods or services necessary to the performance of the government contract The 503 Clause only applies to contracts In excess of $10,000 For goods or services necessary to the performance of the government contract Littler Mendelson 11

12 Can the Clauses be Made Conditional? Example 1 If Applicable, this contractor and subcontractor shall abide by the requirements of 41 CFR (a).... Example 2 The following provision applies to contracts of $100,000 or more for goods or services necessary to the performance of a government contract: this contractor and subcontractor shall abide by the requirements of 41 CFR (a).... Littler Mendelson 12

13 What about the EO Flow Down? May combine Executive Order clause with vet and disability clauses provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO "incorporation by reference" clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor: This contractor and subcontractor shall abide by the requirements of 41 CFR (a), (a) and (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, 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, national origin, protected veteran status or disability. Littler Mendelson 13

14 Number four 4. Job postings with employment service delivery system (state job board) (veteran obligation) Identify as a federal government contractor Request priority referrals from state of protected veterans for job openings at all locations in the state Provide the name and location of EACH hiring location within the state AND the contact information for the contractor official responsible for hiring at each location Could be chief hiring official, HR contact, senior management contact or any other manager who can verify the information in the job listing and receive priority referrals If you use recruiting firms, temp agencies, search firms, contractor must provide the contact information for those agencies, too. Littler Mendelson 14

15 Important side note about job listing President s proposal to revise the overtime exemption criteria will affect the scope of this listing Currently, before the OT exemption change, all jobs must be posted to the employment service delivery system except Temp jobs listing 3 days or less Jobs filled internally (no external candidates) Executive and senior management jobs Includes individuals compensated at not less than $455 per week When this $455 threshold increases, so do the types of jobs that federal contractors must list Littler Mendelson 15

16 Numbers 5 and 6 Posting of notice to advise applicants and remotelylocated employees about their rights 5. Intranet: [Company] is an Equal Opportunity Employer that complies with the laws and regulations set forth in the following EEO Is The Law Poster: f/eeopost.pdf 6. Electronic Applicant Tracking System (ATS) landing page/home page: [Company] is an Equal Opportunity Employer that complies with the laws and regulations set forth in the following EEO Is The Law Poster: f/eeopost.pdf Littler Mendelson 16

17 More on 5 and 6 Must be in a conspicuous location and format on the company s intranet or sent by to employees who do not work at the employer s physical location Contractor must ensure that applicants or employees who are disabled, including disabled veterans, are provided the notice in a form that is accessible and understandable to the disabled veteran (e.g., providing Braille or large print versions of the notice, posting the notice for visual accessibility to persons in wheelchairs, providing the notice electronically or on computer disc, or other versions) Accessibility notice on the ATS alternate means to apply if applicant cannot use ATS Littler Mendelson 17

18 Seventh Item for March Update record retention policies to 3 years Not every record is subject to a 3 year retention Not Executive Order Very difficult to design a policy that specifies what records may be kept for 2 versus 3 years Best practice keep for one year longer than OFCCP requires Littler Mendelson 18

19 Not really a ball in your court, but not Subpart C either... Subpart D: The final regulations explicitly allow OFCCP to extend the temporal scope of desk audits beyond the period set forth in the scheduling letter if OFCCP deems it necessary to its investigation of potential violations of the VEVRAA or 503 regulations OFCCP has not similarly revised its EO regulations to permit such a temporal expansion of audit authority Nevertheless, DOL s Administrative Review Board found such an expansion to be lawful in OFCCP v. Frito-Lay, Inc. (ARB, May 8, 2012), a decision now on appeal in federal court Pre-award reviews now include Vets and Disability reg compliance ($10M or more) Littler Mendelson 19

20 What are the other compliance obligations the ones in Subpart C? The remainder of the obligations set forth in this presentation are tied to the contractor s annual affirmative action plan cycle and are known as the Subpart C obligations They include Benchmarking veteran hires across an AAP at 8% Setting job group by job group, plan by plan, 7% disability goals Extending a pre-offer (applicant) self identification of veteran and disability status, in addition to the existing post-offer self-id Conducting a one-time survey of the employee population for disability status (repeated every five years) Collecting data on applicants, hires, vacancies, and jobs filled Assessing the contractor s good faith efforts at meeting the veteran hiring benchmark and the disability utilization goal Littler Mendelson 20

21 Hiring Benchmark for Veterans Examines the representation of veterans among the employer's hires Establishing the Benchmark OFCCP will publish and annually update a hiring benchmark based on the national percentage of veterans in the civilian labor force Currently 8% of hires per AAP Alternatively, contractors may establish their own hiring benchmark in accordance with OFCCP guidelines Littler Mendelson 21

22 Calculating the Benchmark Contractors may set their own benchmarks taking into account: The average percentage of veterans in the civilian labor force in the state(s) where the contractor is located over the preceding three years, as calculated by the Bureau of Labor Statistics and published on the OFCCP website The number of veterans, over the previous four quarters, who were participants in the employment service delivery system in the state where the contractor is located, as tabulated by the Veterans' Employment and Training Service and published on the OFCCP website Littler Mendelson 22

23 Calculating the Benchmark The applicant ratio and hiring ratio for the previous year, based on the data collected by the contractor for its affirmative action plan data analyses The contractor's recent assessments of the effectiveness of its external outreach and recruitment efforts Any other factors, including but not limited to the nature of the contractor's job openings and/or its location, which would tend to affect the availability of qualified protected veterans Littler Mendelson 23

24 Assessment of Outreach and Recruitment Contractors must annually review protected veteran hiring for the current and prior two plan years to assess external outreach and recruitment efforts and inform or direct its veteran outreach and positive recruitment efforts Hiring may be assessed across the contractor s AAP workforce rather than job group by job group Littler Mendelson 24

25 Utilization Goal for Individuals with Disabilities Established by OFCCP at 7% in 2014 Subject to future revision Used to assess the representation of individuals with disabilities within the employer's existing workforce, similar to the way placement goals have worked under affirmative action plans for women and minorities Goal is job group by job group, within each AAP, unless you are a small company with a total population of 100 or less. If 100 or less, goal is across the workforce. Littler Mendelson 25

26 Utilization Analysis Special Issues for Construction Contractors They do not develop or use job groups The employee survey taken at a moment in time is not reflective of their total workforce, which changes from project to project and season to season Being challenged in the courts 26

27 Inviting Applicants to Self-Identify Contractors will be required to solicit protected veteran and disability status information at the applicant stage The scope of the obligation will be the same as the existing applicant solicitation obligations for gender and race/ethnicity information Must invite every Internet Applicant to voluntarily self-identify as a protected veteran and/or an individual with a disability Littler Mendelson 27

28 Veteran Pre-Offer Invitation to Applicants Contractors may define/explain the four "protected" veteran categories but must invite the applicant to selfidentify simply as a "protected veteran" As a reminder, the four protected veteran categories are: Armed Forces service medal veteran Disabled veteran Recently separated veteran Active duty wartime or campaign badge veteran On the pre-offer form: three choices (possibly 4) On the post-offer form: seven choices (possibly 8) Littler Mendelson 28

29 Veteran Self-Identification Pre-offer: I am a protected veteran I am not a protected veteran I choose not to self-identify Post-Offer: I am a recently separated veteran (discharge date) I am an Armed Forces Service Medal veteran I am a disabled veteran I am an active duty wartime or campaign badge veteran I am a protected veteran, but I decline to specify the category I am not a protected veteran I choose not to self-identify Littler Mendelson 29

30 I am a veteran, just not protected Some employers participate in other veteran outreach initiatives, like Hire a Hero, Helmets to Hard Hats, 100,000 Jobs for Veterans Those campaigns credit employers for hiring veterans beyond just protected veteran Optional question recognizes service I am a veteran but not a protected veteran Littler Mendelson 30

31 Invitation to Applicants (Veterans Status) Contractors may develop their own forms provided that the form States that the information Is being requested on a voluntary basis Will be kept confidential Will not be used in a manner inconsistent with the law States that the refusal to provide status will not subject the applicant to any adverse treatment Littler Mendelson 31

32 Active-Duty Wartime or Campaign Badge Veteran At least for now, there has been no corresponding change to the VETS-100A form, where this category continues to be labeled as "Other Protected Veterans but VETS issued a NPRM in February 2014 VETS is required by law to disclose employers VETS- 100A data VETS wants to move to a post-offer, one category choice, not an every category choice I am a protected veteran I am not a protected veteran I choose not to self-identify Littler Mendelson 32

33 Additional Issues with OFCCP Drafted Forms Littler Mendelson 33

34 Invitation to Self-Identify Disability (Pre-Offer and Post-Offer and Survey) You HAVE to use the OFCCP s form for the pre-offer self-id, the post-offer self-id, and the every-five-year survey ry_self-identification_of_disability_cc- 305_SD_Edit pdf Coming very soon in Spanish Littler Mendelson 34

35 Littler Mendelson 35

36 Building the Form into an ATS May contractors create an electronically fillable copy of the form used to invite voluntary self-identification of disability? Yes, contractors may create an electronically fillable version of the form used to invite self-identification provided that form meets certain requirements. The e-form must: Display the OMB number and expiration date; Contain the text of the form without alteration Use a sans-serif font, such as Calibri or Arial; and Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size). Littler Mendelson 36

37 Invitation to Self-Identify (Pre-Offer and Post-Offer and Survey) Littler Mendelson 37

38 Using the Form in Hard Copy Cover memo Translate cover memo into multiple languages based on typical applicant pool Direct the applicant NOT to circle on of the examples of a disability Direct the applicant not to write his or her disability on the form What do you do with the form if the applicant circles a disability or writes down something else? Littler Mendelson 38

39 Reasonable accommodation If an applicant identifies himself or herself as an individual with a disability or a disabled veteran in the post-offer self-identification... the contractor should inquire of the applicant whether an accommodation is necessary, and if so, should engage with the applicant regarding reasonable accommodation. Should, not shall Decide what your process will be Littler Mendelson 39

40 Invitation to Employees (Disability Only) Contractors must invite all of their current employees to voluntarily self-identify as an individual with a disability within the first year after the new regulations become effective and at least every five years thereafter At least once between each fiveyear resurvey, contractors must also remind employees that they may voluntarily update their disability status information Littler Mendelson 40

41 To summarize Pre-offer veteran form contractor develops Post-offer veteran form contractor develops Pre-offer disability form OFCCP s form Post-offer disability form OFCCP s form This year, and once every five years thereafter survey OFCCP s form Must begin doing this on the first day of your NEXT AAP plan year cycle Should consider taking the baseline employee survey sooner rather than later; use transition year wisely Littler Mendelson 41

42 Data Collection and Analysis Contractors must annually analyze Number of job openings Number of jobs filled Number of applicants for all jobs Number of applicants who self-identified as or are otherwise known to be individuals with disabilities and protected veterans Number of applicants hired Number of applicants with disabilities and protected veteran applicants hired Littler Mendelson 42

43 Data Collection and Analysis For each AAP, not job group by job group What is an opening and what is a fill? The total number of job openings refers to the number of individual positions advertised as open in a job vacancy announcement or requisition. For example, if one job vacancy announcement or requisition includes 5 open positions and results in 4 hires, the contractor would document this as 5 job openings and 4 jobs filled. What is the difference between a fill and a hire? Jobs "filled" refers to all jobs the company 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 company and those employees who were placed into new positions via promotions, transfers, and reassignments. In contrast, the number of those "hired" refers solely to those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions. Littler Mendelson 43

44 Promotion, Transfer, Reassignment Must be able to distinguish between competitive and noncompetitive decisions in the HRIS/payroll system Competitive, multiple applicant pool Competitive, single incumbent Noncompetitive Progress towards a goal typically does not include intra-job group fills Littler Mendelson 44

45 Start Tracking in the Next AAP Cycle; Report Out in Two Cycles End of the year worksheet tab - should have complete values for disability (Yes, No, Choose Not to Self-identify). You will not have complete information on veterans (only those hired since 2007) Selections: disability and veteran status filled in completely (for disability: Yes, No, Choose Not To Self-Identify) (for Veterans: Disabled, Recently Separated, Armed Forces Service Medal, Active Duty Wartime, Not a Veteran, Choose Not to Self-Identify) Applicants: disability and protected veteran status filled in completely (Yes, No, Choose not to self-identify) Vacancy-filling movement: Distinguish between competitive and noncompetitive fills. A fill could be a transfer, a promotion, a new hire, a reassignment. A hire is a competitive selection. Littler Mendelson 45

46 Contractor Outreach Efforts and Action-Oriented Programs The final regulations continue to permit a flexible, open-ended approach to outreach and actionoriented programs, consistent with the current version of the VEVRAA and 503 regulations as well as the EO regulations One mandatory: annual letter to subcontractors, including subcontracting vendors and suppliers (.44(f)(1)(ii)) Littler Mendelson 46

47 Contractor Outreach Efforts and Action-Oriented Programs Activities must be documented Contractors must prepare an annual written assessment of the effectiveness of each activity Contractor s conclusion as to the effectiveness of its outreach efforts must be reasonable as determined by OFCCP If the contractor s efforts have not been effective, it must identify and implement alternative efforts Littler Mendelson 47

48 Reminder: Audit and Reporting System Shall design and implement an audit and reporting system that will Measure the effectiveness of the contractor s affirmative action program Indicate any need for remedial action Determine the degree to which the contractor s objectives have been attainted Determine whether known protected veterans and individuals with disabilities have had the opportunity to participate in all company sponsored educational, training, recreational and social activities Measure the contractor s compliance with the affirmative action program s specific obligations and Document the actions taken to comply with the obligations set forth in the preceding five subsections (3 year record retention) Littler Mendelson 48

49 Revise the Notice on the Bulletin Boards and the Intranet Applicants and employees may view the nonconfidential portions of the affirmative action plans for individuals with disabilities and veterans upon request by contacting [insert]. The plans may be viewed in Human Resources from [start time] to [end time]. Alternatively, The full affirmative action program for individuals with disabilities and veterans, absent the data metrics, is available to any employee or applicant for employment for inspection upon request. The plans may be viewed in Human Resources from [start time] to [end time.] Littler Mendelson 49

50 When Should We Start? The requirements under the new regulations will go into effect on March 24, 2014, however compliance with Subpart C is not mandated until the employer s first new AAP cycle, after March 24, 2014 Subpart C includes: The plan documents themselves All new self-identification solicitation requirements Hiring benchmarks for protected veterans Utilization goals for individuals with disabilities All of the new data collection and analysis requirements Employers with April March AAP years will need to be ready by April 1, Employers with calendar year AAPs will not have to begin these new processes until January 2015 Littler Mendelson 50

51 Implementation Checklist (page 1 of 4) HR/Recruiting Applicant tracking system Identify all screen shots that solicit self-identification Identify all pages that include definitions How will you store the notice of employee rights with the data? [300.5(a)(9); 741.5(a)(4)] Try to track How did you hear about us /Referral source In the database that collects the self-identification data, what is the protocol if the person checks yes? Can the ATS database PLEASE start interacting with the payroll or HRIS database? New hire forms Revise Self Identification Forms to include new language and new definitions (once the OFCCP releases its form) Re-solicit How did you hear about us / Referral source Identify all policies, handbooks, intranet pages that define the veteran categories and update them Revise the AAP narratives to be compliant with the new regulations Littler Mendelson 51

52 Checklist (page 2 of 4) HR/Recruiting (continued) Ensure that you are able to provide Actual notice to people with disabilities [e.g., Braille] Ensure that the required notice language is in all advertisements and solicitations Change the signs relating to AAPs for vets and disabilities being available upon request to: absent the data metrics upon request, or nonconfidential data portions will be made available Identify all personnel involved in recruitment, screening, selection, promotion, disciplinary and related processes and ensure they are trained Confirm that the state workforce agency job bank or local employment service delivery system has each job listed and that each posting has the contractor official responsible for hiring listed in the advertisement Send out the annual notices of company AA policy to all subcontractors (see accounts payable below) and, if applicable, to unions Determine when and how you are going to do the first annual disability survey of the population and ensure the confidentiality of responses Littler Mendelson 52

53 Checklist (Page 3 of 4) Legal Revise the affirmative action policy (300.43; ) [Subpart C] Subcontracts work with procurement determine which ones are necessary to the performance of the prime contract or assume obligations of the direct contractor Decide whether to include the flow down clauses in all contracts, or make that determination on an individual contract basis Update record retention policies (reminder current year and two prior plan years ) Prompt for reasonable accommodation or not? Littler Mendelson 53

54 Checklist (Page 4 of 4) Procurement Incorporate the new EO flow-down language into covered contracts Accounts Payable Produce list of all subcontractors, including subcontracting vendors and suppliers (to whom letters will be sent annually advising them of your AA policy) [Subpart C; (f)(1); (f)(1)] Research the ones where you don t have a human to contact (e-billing) Littler Mendelson 54

55 Contact Information Alissa Horvitz OFCCP Practice Group Co- Chair Josh Roffman Lance Gibbons George Chaffey OFCCP Practice Group Co- Chair David Goldstein William Weissman Littler Mendelson 55