OFCCP’S New Veteran/Disability Regulations Are Now In Effect. Are You Ready? (Presentation)

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) last fall announced two new groundbreaking regulations implementing Section 503 of the Federal Rehabilitation Act (Section 503), and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA)

– These final rules require federal contractors and subcontractors to affirmatively recruit, hire, train, and promote covered veterans and individuals with disabilities

– The most radical changes involve newly required utilization goals and benchmarks to measure a contractors’ hiring progress involving individuals with disabilities and protected veterans, and new self-identification of applicants and employees with a disability…

Please see full presentation below for more information.

 Download PDF

Gary A. Chamberlin

Dial-In Number (US & Canada): +1-866 740-1260
Dial-In Number (International): +1-303 248-0285
Participant Code: 6040090

Housekeeping Items
2
 All phones are muted
 Dial *0 at any time for
technical support
 Questions may be
submitted to the presenter
via the chat feature on the
left-hand side of your screen
 Questions will be answered
at the end of the
presentation
The materials and information have been
prepared for informational purposes only.
This is not legal advice, nor intended to create or
constitute a lawyer-client relationship.
Before acting on the basis of any information or
material, readers who have specific questions or
problems should consult their lawyer.
3
 These final rules require federal contractors and subcontractors to affirmatively
recruit, hire, train, and promote covered veterans and individuals with disabilities
 The most radical changes involve newly required utilization goals and benchmarks to
measure a contractors’ hiring progress involving individuals with disabilities and
protected veterans, and new self-identification of applicants and employees with a
disability
4
Introduction
The U.S. Department of Labor’s Office of Federal Contract
Compliance Programs (OFCCP) last fall announced two new
groundbreaking regulations implementing Section 503 of the
Federal Rehabilitation Act (Section 503), and the Vietnam Era
Veterans Readjustment Assistance Act (VEVRAA)
Topics To Be Covered
 Background on the new Veteran/Disability Regulations – How
did we get here?
 Federal contractor & subcontractor coverage – Who does this
apply to?
 Effective dates for changes – Is there a ‘stay of execution’?
 Required external & internal notices
 New self-identification of disability by applicants and employees
 New “utilization goals” and “benchmarks” and self-assessment
for measuring progress in achieving them

5
Refocused Protection of Veterans:
 U.S. military wind-down in the Middle East (2.6 M vets)
 Influx of returning veterans to civilian job market
 Worst economy / job market in generations
 High level of unemployment for veterans
 OFCCP’s April 2011 NPRM meant agency working on regs in
2009 – 2010 during height of recession
 “Pendulum Swing” from other affirmative action initiatives
6
Background Of The New Regs
Refocused Emphasis on Individuals with a Disability
 Far higher rates of unemployment and labor market
participation for individuals with a disability
 Democratic administration repayment for election support
 Strengthened “voice” of disability community on heels of
substantially beefed up ADAAA in 2009
 OFCCP’s December 2011 NPRM meant agency working on
new regs in 2009 – 2010 during height of recession

7
Background Of The New Regs
 Federal government has often made its contractors a
“test case” for changes that may not have political
capital to extend to all private sector
 Feb 2014 – new Executive Order to raise minimum wage to
$10.10 for new federal contracts after January 1, 2015
 NLRA rights poster required since June 2010 (despite
controversy, litigation and failure for private sector)
 E-Verify required for many federal contractors and
subcontractors, but not employers in general (unless
required by state law)
8
Background Of The New Regs
Who Is The OFCCP?
 The Office of Federal Contract Compliance Programs
(OFCCP) is an agency within the U.S. Department of
Labor (DOL), and is responsible for enforcing equal
opportunity employment and affirmative action for
employers who contract or subcontract with a federal
government agency or the military
 Non-discrimination and affirmative action – race, color,
religion, sex, national origin, protected veteran,
individual with a disability
 OFCCP has been in existence since 1960s
9
OFCCP Jurisdiction
 OFCCP has jurisdiction over employers if they have either —
 Contractor – 50 or more employees and a direct contract for $50,000
or more with the federal government; or
 Subcontractor – 50 or more employees and a contract for $50,000 or
more with a federal contractor and provide goods or services that
are “necessary” to the performance of the prime contractor’s
federal contract
 Financial institutions that are depository of federal funds or FDIC
insurance. (No more OTC savings bond transactions.)
 Hospitals/Healthcare – Services and revenue pursuant to: FEHBP,
Medicare Advantage (Part C) and Part D (prescription drugs) are
considered by OFCCP to be federal contractors (not Tricare)

10
The Regs: What’s New?
11
 Phase out references to 41 CFR § 60-250, and
instead cite 41 CFR § 60-300
 OFCCP will rescind 41 CFR § 60-250 (which relates
to federal contracts signed before 12/01/03)
 V.E.T.S. has proposed to suspend use of VETS-100
Report in favor of VETS-100A and re-name it VETS-
4212
New Regulation Terms
12
Veterans categories:
 4 types of “Protected Veterans” under VEVRAA:
1. “Disabled Veteran” (formerly Special Disabled Veteran)
2. “Active Duty Wartime or Campaign Badge Veteran”
(formerly Other Protected Veteran)
3. “Armed Forces Service Medal Veteran”
4. “Recently Separated Veteran” (3 years – formerly 1 year)

13
New Regulation Terms
 The Section 503 regulations now refer to
“Individual with a Disability” consistent
with ADA
 Section 503 definitions align with ADA in
virtually all respects (i.e., mental/ physical
condition that substantially limits a major
life activity, undue hardship, direct threat,
etc.)
14
New Regulation Terms
 “Utilization Goal” for Individuals with a Disability
 “Benchmark” (goal) for Veterans
 Disclosure of Disability / Veteran Status (in addition to
gender & race / ethnicity)
 “Invitation to self-identify” for applicants and employees

15
The Regs: What’s New?
The Regs’ Phase-In
16
 OFCCP Final Rules create phased in compliance dates
throughout 2014/2015
 Final regulations became legally effective March 24, 2014
17
The Regs’ Phase-In
 OFCCP Regs defer (grandfather) the compliance
deadline for some contractors to a later date. An AAP
created before March 24, 2014 may remain effective
thru the end of its AAP year.
 Compliance for most (not all) new obligations must
then occur at the start of contractor’s next AAP year
(but must be ready to “hit the ground running”)
 OFCCP promises “transitional year” enforcement
grace period
18
The Regs’ Phase-In
 The Phase In, or Grandfathering Rule:
 Under OFCCP’s Final Rule the AAP of a covered
federal contractor in effect before March 24, 2014 is
allowed to remain in place for the duration of its
AAP year (i.e., calendar year, fiscal year, etc.)
 Grandfathering does not apply to Executive Order
11246 AAP (focusing on gender and race / ethnicity)

19
The Regs’ Phase-In
 Some of these veteran / disability obligations become
effective regardless of the grandfathering provision
 Exceptions (March 24, 2014 triggered regardless)
 Notice to labor unions
 ESDS job vacancy listing
 Veteran / Disability Rights Poster
 EEO clause in subcontracts (vendors / suppliers)
 Advertising “Tag Line”
20
The Regs’ Phase-In
 Example: A January 1, 2014 AAP for Disabled/
Protected Veterans will remain unchanged through
December 31, 2014 … even though OFCCP’s new regs
became legally effective on March 24, 2014.
 Contractor does NOT have to create a new AAP on
March 24, 2014 to comply with the new requirements.
Changes “kick-in” on January 1, 2015 for Veterans /
Disabled AAP.
21
The Regs’ Phase-In
Q. Doesn’t ADA prohibit pre-employment medical
inquiries into disability status?
A. Not according to OFCCP and EEOC
 EEOC Legal Counsel’s August 8, 2013 opinion letter
 No employer is liable for a violation of Title I of ADA for
taking action required by another federal statute or
regulation in the interest of affording individuals with
disabilities equal or greater rights
 Effective 3/24/14, this inquiry was required by federal
(OFCCP) regulations; therefore does not violate ADA

22
What Else Is New?
 EEOC’s 1995 published guidance : “Enforcement
Guidance: Pre-Employment Disability Related
Questions and Medical Examinations”
 If an employer is undertaking affirmative action per law (such
as for tracking and government reporting purposes); or using
information to benefit individuals with disabilities, is
permitted to ask
 Employer must state that information solely used in
connection with affirmative action obligations, information is
voluntary and will be kept confidential

23
What Else Is New?
 There is no similar prohibition on pre-offer inquiries
about Protected Veteran status under VEVRAA as
long as the inquiry does not ask about disability
 Contractors have also never been prohibited from a
post-employment inquiry as to Protected Veterans

24
What Else Is New?
 OFCCP now goes far beyond the ADA as to employees known to
be disabled AND having “significant difficulty performing his /
her job.” Where it is “reasonable to conclude” that the
employee’s performance failure is due to disability, Contractor
must:
 Confidentially notify the employee of the performance
problem
 Inquire whether the performance failure is related to the
employee’s disability; and
 If so, make inquiry of the employee whether s/he needs an
offered accommodation
25
The Disability/Performance Tightrope
 How far will OFCCP go in enforcement?
 Will alleged failure to inquire / failure to offer
reasonable accommodation be referred to EEOC?
 Will OFCCP conclude it is “reasonable to conclude”
that employer has knowledge of employee’s disability
based upon a self-identification form?
 What about fact that self-ID form does not disclose
exact nature of disability?
 Insulate operations management from self-ID form
26
The Disability/Performance Tightrope
Five Veteran/Disability
External Notices
27
Notice #1 – Labor Organizations
 Notice to labor organizations of Contractor’s VEVRAA and
Section 503 obligations
 Inform labor organization with which Contractor has labor
agreement (CBA) that Contractor is bound by the terms of the
relevant statute, and that the Contractor is committed to take
affirmative action to employ and advance in employment the
protected class members
 Regs do not provide any mandatory language
 Not subject to “grandfathering” rule – effective March 24, 2014

28
Five Needed External Notices
Notice #2 – Vendors / Suppliers
 Notification to Subcontractors (Vendors / Suppliers)
 Contractor must send written notice of company policy
related to its affirmative action efforts to all subcontractors,
including subcontracting vendors and suppliers, requesting
“appropriate action” on their part
 Subcontractor not required to “certify” compliance
 Don’t confuse this “Notice” with the separate requirement to
incorporate the EEO “clauses” in the company’s contracts
with covered federal subcontractors (i.e., purchase order)
 Regs do not provide any mandatory language

29
Five Needed External Notices
Notice #3 – ESDS Job Vacancy Listing
 “Listing” (not “posting”) Requirement with ESDS (job service
entities) exclusively within VEVRAA regulations
 No comparable listing requirement in Section 503 regulations
 Most employment openings for which external candidates are
considered (in whole or in part) must be “listed” with ESDS
 Exceptions to job vacancy listing requirement:
 Jobs filled exclusively from within organization (internal progression)
 Vacancies for executive / senior managers (FLSA “executive” OT
exemption)
 Short-term jobs lasting 3 days or less

30
Five Needed External Notices
 VEVRAA regulations include an explicit permission
to use third party vendors for electronic job board
listings / postings to help short-staffed HR
departments manage the job listing process

31
The New Job Vacancy Listing
 When a Contractor is required to list a job, it must
also provide certain background info to ESDS
(essentially a one-time notice):
1. Label listing as from “VEVRAA Federal Contractor”
2. Identify contact information for Contractor hiring official
at each location in the state (chief hiring official, HR
contact, senior manager or other manager who can verify
info in job posting)

32
The New Job Vacancy Listing
3. Identify contact information for any outside third
party job search company assisting with hiring (i.e.
headhunter)
4. Label listing as a specific request for “Priority Referral”
of Protected Veterans (whatever the local ESDS deems
to be a “priority referral”)

33
The New Job Vacancy Listing
Background info to ESDS (cont.)
 Listing requirement with ESDS
 Listing must be in “manner and format” the local ESDS
requires
 For that reason alone, many federal contractors now list
available job openings through a “clearinghouse” listing
service such as JobCentral, America’s Job Exchange, eQuest
 Regs do not provide any mandatory language
 Not subject to grandfathering rule – effective March 24, 2014

34
Five Needed External Notices
Notice #4 – VEVRAA Pre-offer ID
 VEVRAA Pre-Offer Self-Identification Form
 Contractor required to request self-identification both
pre-offer and post-offer
 Contractor may create its own VEVRAA-compliant self-
identification forms for protected veterans (but only for
VEVRAA – must use OFCCP’s 503 Self-Identification form)

35
Five Needed External Notices
 VEVRAA Self-Identification Form
 VEVRAA Self-ID must contain certain required language
 Company is a federal Contractor required to take affirmative
action for Protected Veterans
 Summarize relevant portions of VEVRAA and Contractor’s
AAP
 Submission of information is voluntary and will have no
adverse consequence on employment decision
 Submission is confidential
 Info will be used in manner not inconsistent with VEVRAA
36
Five Needed External Notices
 Definition of each veteran category is needed on ID
form so job seeker can determine if he / she is a
Protected Veteran according to VEVRAA
 However, at pre-offer stage (the application process)
the specific category of Protected Veteran is not
disclosed
 Only identification is to self-designate as “Protected
Veteran” or not
37
Five Needed External Notices
Notice #5 – Section 503 Pre-offer ID
 503 (Disability) Self-Identification Form
 Must use the OFCCP approved form
 OFCCP published the final approved ID Form on 1/23/14
 OFCCP intends this form for four uses: pre-offer; post-offer;
first year survey; 5 year interval survey
 Contractor must request self-identification
1. Pre-offer
2. Post-offer and
3. During employment (1st and 5th)
4. 1 – 5 year interval reminder
38
Five Needed External Notices
Five Needed External Notices
40
 Greater risk exposure may be a general discrimination law
failure to hire claim, not OFCCP technical compliance
violation
 Employers need to be able to produce evidence that
decision-makers were unaware of applicant’s self-ID form
disability disclosure
 Need to insulate from applicant self-ID anyone involved in
screening, selection and hiring: hiring managers, talent
acquisition members, HR administrators, and HR clerical
members involved in screening applicants

41
Applicant Disability Self-ID Form
Five Veteran/Disability
Internal Notices
42
Notice #1 – VEVRAA/SECTION 503 Poster
 Posting of Rights for Protected Veterans and
Individuals with a Disability
 Notice must state the rights of applicants and employees, as
well as the contractor’s obligation under the law to take
affirmative action to employ and advance in employment
qualified employees and applicants
 Per OFCCP, this is the “EEO Is The Law” poster with dual
EEOC and OFCCP rights described
 OFCCP informally announced that “EEO Is The Law” poster will
eventually be updated
 Not subject to “grandfathering” rule – effective March 24, 2014

43
Five Internal Notices Needed
 VEVRAA/SECTION 503 Poster (cont.)
 Remote employees
 Electronic format (email, intranet) acceptable provided:
 Contractor provides computers to employee to access the posting,
or
 Contractor has “actual knowledge” employee may otherwise be
able to access the electronic notice
 Contractor must use electronic posting for job seekers if
contractor uses electronic application process

44
Five Internal Notices Needed
Notice #2 – VEVRAA/SECTION 503 AAP Available For
Employee Review
 Notice that AAP is available for review by Applicants /
Employees
 Full Veteran/Disability AAP (without the statistical charts)
must be made available “upon request” to employee /
applicant (does not apply to E.O. 11246 AAP)
 Contractor may provide electronic access to AAP if
requestor is able to access the electronic version
 Regs do not provide any mandatory language

45
Five Internal Notices Needed
Notice #3 – VEVRAA Post-offer ID
 VEVRAA Post-Offer Self-Identification Form
 Contractor required to request self-identification both pre-
offer and post-offer
 At this stage employee invited to identify the specific
category of protected veteran
 Contractor may create its own VEVRAA-compliant self-
identification forms for protected veterans (but only for
VEVRAA – must use OFCCP’s 503 Self-Identification form)

46
Five Internal Notices Needed
Notice #4 – SECTION 503 Post-offer ID
 503 (Disability) Self-Identification Form
 Must use the OFCCP approved form
 OFCCP published the approved ID form on 1/23/14
 OFCCP intends this same form for four uses: pre-offer; post-
offer; first survey; 5 year interval survey
 Contractor must request self-identification
1. Pre-offer
2. Post-offer and
3. During employment
4. 1 – 5 year interval reminder
47
Five Internal Notices Needed
 503 (Disability) Self-Identification Form
 Contractor must maintain pre-offer and post-offer
inquiry responses in separate “Data Analysis File”
 Not in Employee’s personnel file
 Not in ADA / medical file

48
Five Internal Notices Needed
Notice #5 – AAP Policy Statement
 For posting on bulletin boards and inclusion as Policy
Statement in Veterans / Disabled AAP
 VEVRAA/503 Policy Statement must “indicate the top
United States executive’s (such as the Chief Executive
Officer or the President of the United States division of
a foreign company) support for the contractor’s
affirmative action program.”
 Not merely management official at the site / location
 Usually indicated by a EEO / AAP policy “sign-off”
 Regs do not provide any mandatory language
(your current EEO Policy will do)

49
Five Internal Notices Needed
 No length issue with electronic postings (since not based
on cost per character or line)
 As a practical matter, contractor must only decide this issue
as to print media
 OFCCP’s interpretation of the new rules clarify that the
tagline must specifically mention veterans and the disabled,
and those terms must not be abbreviated (in OFCCP view
“Vet” and “disabled” are the preferred identifiers)
 Not subject to grandfathering rule – effective March 24, 2014
50
Updated “Tag Lines”
SAMPLE ADVERTISING TAG LINES
Sample tagline for internet / online advertisements
[Company] is an equal opportunity employer. All qualified applicants will
receive consideration for employment without regard to race, color, religion,
sex, national origin, age, status as a protected veteran, or status as a qualified
individual with disability.

Sample print media taglines
EEO Employer/Vet/Disability
EOE Employer M/F/Vet/Disability
EOE Employer Female/Minority/Vet/Disability
51
Updated “Tag Lines”
 VEVRAA: Included in subcontracts with vendors &
suppliers (12 lengthy paragraphs about contractor’s /
subcontractor’s EEO and affirmative action
obligations)
 Section 503: Included in subcontracts with vendors &
suppliers (7 lengthy paragraphs about contractor’s /
subcontractor’s EEO and affirmative action
obligations)
 Not subject to grandfathering rule – effective March 24, 2014
52
New EEO Clauses
 Contractor must incorporate the 12 EEO Clauses of
VEVRAA and the 7 EEO Clauses of Section 503 in all
covered federal subcontractor agreements (i.e., purchase
order form, lease, supplier agreement, etc.)
 Contractor may, in its discretion, incorporate these EEO
clauses by reference into its covered federal subcontracts
 When incorporating by reference, OFCCP now mandates
specific incorporation by reference language and requires
that the language appear in bold font (essentially a single
paragraph)

53
New EEO Clauses
 EEO Clauses:
 Contractor may add a “disclaimer” phrase to the required EEO clauses
(whether set forth in full or incorporated by reference) to note that these
clauses in the company’s contract applies to a federal subcontractor,
“where applicable” or “if applicable.”
 Too confusing to have two forms of subcontract/ purchase
order: (1)version for vendors / suppliers which are not a federal
subcontractor; and (2) version for covered federal
subcontractors. Otherwise, company would have to determine
which form applies, on a vendor-by-vendor basis, usually by
untrained sales, purchasing or finance staff.

54
New EEO Clauses
VEVRAA/Section 503 Goals
 “Benchmarks” for hiring for protected veterans:
 Benchmark for workforce in each AAP/establishment as a whole.
Established benchmark of 8% for 2014 (more recently revised by
DOL to 7.2%) or can be calculated by contractor using variety of
veteran workforce data
 “Utilization Goals” for hiring individuals with a disability:
 7% for each Job Group – or –
 7% for workforce in each establishment if the company employs
100 or fewer employees
 Deemed to be an “aspirational goal” by OFCCP

55
The New Veteran/Disability Goals
Evaluation of Personnel Processes
 “The Contractor shall periodically review such processes
and make any necessary modifications to ensure that
these obligations are carried out”
 Suggestions for review:
 Document the vacancies, promotions and training for which the
contractor considered the individual
 Document the articulated legitimate non-discriminatory reasons
for each vacancy, promotion or training for which the contractor
rejected the applicant
 Describe and document all disability accommodations
undertaken, if any
56
New Self-Assessments
Evaluation of Outreach and Recruitment
 Annual evaluation of effectiveness of outreach efforts
 Test: (according to OFCCP) Is the totality of contractor’s
efforts “effective” in identifying and recruiting qualified
protected veterans (and individuals with disabilities)
 Must identify criteria used to determine effectiveness
 Must include among criteria at least the “data metrics” for
current year and for two most recent years (as self-
identification data is received – 2014, 2015, 2016, etc.)

57
New Self-Assessments
Data Metrics Analysis
 Annual calculation of applicants, job openings, jobs
filled, qualified applicants with disabilities, qualified
protected veterans, and number of qualified
protected veterans and individuals with disabilities
hired
 Record retention = generally three (3) years
58
New Self-Assessments
 U.S. Department of Labor Veterans’ Employment and Training
Service (VETS) [dol.gov/vets]
 Hero to Hired [H2H.jobs]
 America’s Heroes at Work: A Step-by-Step Toolkit for Employers
[americasheroesatwork.gov]
 Recruit Military [recruitmilitary.com]
 Veteran Career Network [Military.com]
 VetsFirst Disabled Veterans Employment Guide [vetsfirst.org]
 Women Veterans’ Employment: Skills Matter
[dol.gov/womenveterans]
 National Resource Directory – Connecting Wounded Warriors,
Service Members, Veterans, Their Families and Caregivers with
Those who Support Them [nrd.gov/home/veterans_job_bank]

59
Veterans Recruitment/Outreach Resources
 Paralyzed Veterans of America [pva.org]
 U.S. Department of Defense Transition Assistance Program (TAP)
 Michigan Works! – Job Service Agency [michiganworks.org]
 Veterans’ Counselors, Advisors and Coordinators at Colleges/
Universities
 Hire Heroes USA [hireheroesusa.org]
 Employers Military Hire [employers.militaryhire.com]
 Vet Jobs [vetjobs.com]
 Veterans Enterprise [veteransenterprise.com]
 Hire Vets First [hirevetsfirst.gov]
 America’s Service Locator [servicelocator.org]
 Career One Stop [careeronestop.org]
 My Next Move for Veterans [mynextmove.org/vets]
 My Skills My Future [myskillsmyfuture.org]

60
Veterans Recruitment/Outreach Resources
 Michigan Vocational Rehabilitation Service agency
 U.S. Department of Labor Veterans’ Employment and Training
Service (VETS) [dol.gov/vets]
 Center for Independent Living
 VetsFirst Disabled Veterans Employment Guide [vetsfirst.org]
 National Resource Directory – Connecting Wounded Warriors,
Service Members, Veterans, Their Families and Caregivers with
Those who Support Them [nrd.gov/home/veterans_job_bank]
 Paralyzed Veterans of America [pva.org]
 U.S. Social Security Administration Ticket to Work Employment
Network Directory
 Career Opportunities for Students with Disabilities (COSD)
[cosdonline.org/cosd-career-gateway]
 National Federation for the Blind (NFB) [blindscience.org/careers]
61
Disability Recruitment/Outreach Resources
 Autistic Self Advocacy Network (ASAN) [autisticadvocacy.org]
 Employer Assistance and Resource Network (EARN) [askearn.org]
 Employment One-Stop Career Center
 American Job Center
 Job Accommodation Network (JAN) [askjan.org] [jan.wvueduEmployer]
 ADA Affirmative Disability Action [abilityjobs.com]
 Careers and Community for People with Disabilities [gettinghired.com]
 Goodwill Industries
 Kandu Industries [kanduinc.org]
 Office of Disability Employment Policy
[dol.gov/ofccp/regs/compliance/resources-recruit-disability.htm]
 American Job Center Network [servicelocator.org]
 Business Strategies That Work
[dol.gov/odep/pdf/BusinessStrategiesThatWork.pdf]

62
Disability Recruitment/Outreach Resources
Calder Plaza Building
250 Monroe Ave. NW
Suite 800
Grand Rapids, MI 49503-2250
www.millerjohnson.com
Radisson Plaza Building
100 West Michigan Avenue
Suite 200
Kalamazoo, MI 49007-3960
www.millerjohnson.com
63
Gary A. Chamberlin
616.831.1709
[email protected]

Download PDF[1801KB]
Email
Report

Note close

Firefox recommends the PDF Plugin for Mac OS X for viewing PDF documents in your browser.

We can also show you Legal Updates using the Google Viewer; however, you will need to be logged into Google Docs to view them.

Please choose one of the above to proceed!

LOADING PDF: If there are any problems, click here to download the file.