A REFRESHER ON OFCCP S NEW SECTION 503 & VEVRAA REGULATIONS: ARE YOU READY FOR SUBPARTS C?

Transcription

1 A REFRESHER ON OFCCP S NEW SECTION 503 & VEVRAA REGULATIONS: ARE YOU READY FOR SUBPARTS C? Presented by Cara Crotty, Esq. April 28, 2015

2 Constangy, Brooks, Smith & Prophete LLP Constangy, Brooks, Smith & Prophete is a management-only labor and employment law firm Litigation prevention and defense, labor relations, benefits, immigration, workers compensation, wage and hour, OSHA, and affirmative action Offices in GA, SC, NC, TN, FL, AL, VA, MA, IL, WI, NJ, CA, TX, MO

3 Cara Columbia, SC Office Co-Chair, Affirmative Action Practice Group Employment Litigation Practice

4 Background NPRM for VEVRAA Regulations April 2011 NPRM for Rehabilitation Act December 2011 Final Rules published October 2013

5 Effective Date of New Regulations March 24, 2014 If current AAP in place on effective date Did not have to update AAP until next cycle Did not have to comply with Subparts C until next AAP date If no AAP in place on effective date Must develop AAP with new regulations Required to comply with other requirements by March 24, 2014

6 What are Subparts C? Set out components of AAPs and related requirements Phased-in compliance Early 2014 AAPs developed under old regulations January 2014 AAPs February 2014 AAPs March 2014 AAPs All AAPs developed after March 24, 2014 under new regulations All 2015 AAPs must be developed under new regulations

7 Subparts C Requirements Voluntary Self-Identification of Applicants & Employees Utilization Goal for Individuals with Disability Hiring Benchmark for Protected Vets Data Collection Analyses Annual Self-Assessments of Recruitment Efforts Audit & Reporting Systems Review of Personnel Processes Review of Physical & Mental Requirements AA Policy Training

8 Voluntary Self-Id Requirements for Protected Veterans Must invite all applicants to self-id as a PV Veteran categories not broken out Done at same time as race & gender self-id Must invite all new hires to self-id as PV After offer, but before employment starts Should veteran categories be broken out on post-offer form in light of new VETS-4212 Form? OFCCP issued FAQs 1/20/15 You may, but are not required, to separate categories Cara s recommendation? Collect the detailed info

9 Voluntary Self-Id Requirements for Individuals with Disability MUST USE FORM PROVIDED BY OFCCP Must invite all applicants to self-id as disabled Done at same time as race & gender self-id Must invite all new hires to self-id as disabled After offer, but before employment starts Must invite incumbent employees to self-id during the 1 st year subject to these requirements Must invite incumbent employees to self-id every 5 years Any method(s) reasonable and likely to be effective Must provide reminder to employees that they can self-id at least once between those invitations

10 Can/Should You Id? What if applicant or employee has obvious disability, but does not self-id? Regulations allow contractors to identify individuals who choose not to self-id when disability is known or obvious Cannot speculate Are you regarding individual as disabled? What if applicant does not self-id as PV, but does when hired? Ok to count as PV applicant In other words, you can reconcile apps & hires

11 Storage of Self-Id Responses Must be maintained in a data analysis file separate from personnel files May use HRIS or ATS provided: Stored securely, apart from other personnel information Confidentiality maintained Access limited to personnel who have need to know for OFCCP compliance purposes May not be kept with confidential medical file Insulate decision-maker from info!

12 Electronic Self-Id Process Specific requirements for using mandatory IWD self-id form Display the OMB number & expiration date Contain the text of the form without alteration Use a sans-serif font Use at least 11-pitch font size (except footnotes and burden statement can be 10-pitch) May maintain database of electronically completed info (as opposed to actual forms), as long as you can demonstrate how forms were delivered or displayed

13 Paper Self-Id Process Must retain either hard or electronic (pdf) copies of completed forms Must also retain any log or spreadsheet used to record the data from the self-id forms

14 Section 503 s National Utilization Goal 7% workforce utilization goal for individuals with a disability Measured by job group Unless total workforce 100 Failure to meet goal, alone, is not a violation and won t lead to sanctions OFCCP will periodically review and update the utilization goal as data becomes more refined

15 Counting Non-Responses Contractors must compare number of IWD to total number of employees in job group Non-responses to self-id do not matter Example: 100 employees in job group 50 employees responded to survey 10 self-id as disabled Calculation is 10/100, not 10/50

16 Utilization Analysis Example

17 Identification of Problem Areas When utilization goal not met, contractor must take steps to determine whether and where impediments to EEO exist. Must assess: Personnel processes Effectiveness of outreach and recruitment efforts Results of AAP audit Any other areas that might affect success of AAP

18 Action-Oriented Programs If problem areas are identified, contractor must undertake action-oriented programs designed to correct any identified problem areas If contractor reasonably determines no impediments exist, no further action necessary

19 VEVRAA s Annual Hiring Benchmark National percentage of veterans in civilian labor force Currently 7.2% Updated annually, usually in March OR 5-factor approach, taking into account: average percentage of veterans in civilian labor force in the state(s) where contractor is located over past 3 years number of veterans, over past 4 quarters, who were participants in ESDS in state where contractor is located applicant and hiring ratio for previous year contractor s recent assessment of effectiveness of outreach and recruitment efforts any other factors (nature of job openings, location) Why would you want to use 5 factors?

20 VEVRAA s Annual Hiring Benchmark (cont.) Hiring benchmark; not utilization analysis Current representation of PV not relevant Document benchmark each year If use 5-factor approach, must document each factor and relative significance of each Must keep benchmark records for 3 years What are hires? Applicants (both internal and external) hired through a competitive process, including promotions. Are you tracking competitive vs. non-competitive movements?

21 Benchmark Example

22 Data Collection Analyses Document the following statistics on an annual basis and maintain for 3 years: Number of job openings Number of jobs filled Number of applicants for all jobs Number of applicants hired Number of IWD applicants Number of PV applicants Number of IWD hired Number of PV hired

23 OFCCP s FAQ Definitions Job openings Number of positions advertised as open in ad or requisition Jobs filled All jobs filled by any means, whether competitive or non-competitive, i.e., reassignment or merit promotion Must be from one position to another, not a movement within same position, i.e., step or ladder Hires Applicants (both internal and external) hired through a competitive selection process Applicants Presumably means all internal and external applicants for competitive positions

24 Unanswered Questions What if external candidate is the only applicant for position? Is that a hire because they were literally hired, or Is it a job filled because it was not competitive? What if internal candidate bids on job that is lateral movement? Is that a hire because there were other candidates, or Is it a job filled because it was not a promotion? Until OFCCP provides more clarity, choose a practice and apply consistently Cara recommends (until OFCCP states otherwise): If it is a hire or promotion, count as hire even if no other candidates If it is not a promotion, count as job filled and not hire

25 Data Collection Analysis Example

26 Annual Self-Assessments of Recruitment Efforts Consider all data collection analysis metrics Current and two most recent prior years (to the extent required) May consider other reasonable and documented criteria Primary factor is number of IWD & PV hired Conclusion as to effectiveness must be reasonable as determined by OFCCP If efforts not effective, contractor must identify and implement alternative efforts Now required by new Itemized Listing

27 Some Items Worth Considering Response rate from recruitment sources Notified X recruitment sources Received referrals from X of these recruitment sources Are recruitment sources meeting needs? Referrals from recruitment sources Percentage of applicants who identified targeted recruitment source Receiving adequate referrals from recruitment sources? Are you tracking referral information? Data Collection Analysis Percentage of applicants who self-id ed as disabled Number of openings Percentage of hires who self-id ed as disabled

28 Results of Assessment Based on this information, we conclude that our outreach and recruitment efforts were/were not satisfactory in identifying and recruiting qualified IWD. If not: We will therefore identify and implement alternative efforts to ensure that our obligations are fulfilled. Such additional efforts may include:

29 Audit & Reporting Systems Required to design and implement audit & reporting system that will: Measure effectiveness of AAPs Indicate need for remedial action (No! Not ever! Never!) Determine degree to which objectives have been attained Determine whether known IWD & PV have had opportunity to participate in all company-sponsored events Measure compliance with AAPs specific obligations Must document actions taken to comply Now required by new Itemized Listing If AAP found deficient, must continue to undertake necessary action to bring program into compliance Would you ever admit that AAP is deficient?

30 Review of Personnel Processes Personnel processes must: Provide for careful, thorough, and systematic consideration of job qualifications of known IWD or PV for vacancies filled by hiring or promotion and for training opportunities Rely on only that portion of military record relevant to requirements of opportunity Not stereotype IWD or PV in manner that limits access to jobs Ensure IWD have equal access to personnel processes, including IT Provide reasonable accommodations to ensure IWD receive equal opportunity in operation of personnel processes Design of procedures must facilitate periodic review by both contractor and government Now required by new Itemized Listing Date assessment was performed Actions taken or changes made Date of next scheduled assessment

31 Review of Physical & Mental Requirements Must provide and adhere to schedule for review of all physical and mental job qualification standards to ensure that, to the extent they tend to screen out qualified IWD or disabled vets, they are job-related and consistent with business necessity Now required by new Itemized Listing Date assessment was performed Actions taken or changes made Date of next scheduled assessment

32 AA Policy Must include specific language, including that top U.S. official supports AAP Dissemination of AA Policy In AAP Post on bulletin boards Policy manual or otherwise make available to employees Notify union officials & subcontractors and request cooperation Must be accessible to IWD

33 Training Must train certain personnel to ensure that commitment to AAP is implemented Train those personnel involved in: Recruitment Screening Selection Promotion Discipline Related processes

34 Review of Other (Not Phased-In) Requirements Mandatory job listings with ESDS Must contain specific information Job solicitation tagline D & V not sufficient NOTE affected by LGBT Final Rule Now recommend: Equal Opportunity Employer, including disabled & vets Otherwise, must list all EO categories

35 Review of Other (Not Phased-In) Requirements EEO is Law Poster provided electronically to offsite employees EEO is Law Poster conspicuously stored with or as part of electronic applications Ensure applicants have opportunity to view poster, such as by displaying prominent link Notify unions of coverage and commitment to EEO/AA

36 EO Clauses Must use required language in bold In all covered subcontracts entered into after March 24, 2014 NOTE: Affected by LGBT Final Rule if you list out all EO protected categories

37 Need Sample Forms? ( me at Self-id for PV (pre and post-offer) Mandatory Self-id for IWD Cover Letter for IWD Employee Survey EO Clauses Mandatory Job Listing Template AA Policy Statement Notice to Union Notice to Subcontractors Sample Compliance Checklist

38 Keep up to Date! Sign up for AA Alert and other newsletters Follow us @RobinEShea Check out OFCCP s website

39 Thank You! Cara Crotty