Affirmative Action

Federal Contractors Required to Use New Disability Self-Identification Form

March 7, 2017

By Larry P. Malfitano
The revised Regulations of Section 503 of the Rehabilitation Act (which became effective in March 2014) required Federal contractors and subcontractors to invite applicants and employees to self-identify their disability status using an Office of Federal Contract Compliance (OFCCP) prescribed form:  (1) at the pre-offer stage of the application process, (2) post-offer after an applicant is offered a position but prior to starting work, and (3) by survey of the workforce every 5 years.  The required OFCCP Form is Form CC-305; this form cannot be altered or changed.  The original Form CC-305 approved by the Office of Management and Budget (OMB ) expired on 1/31/2017. The OFCCP recently published a notice that the OMB has approved a new Form for another three years.  No change was made to the Form except the expiration date.  Effective immediately, Federal contractors and subcontractors must either download the renewed form(s) or update their electronic version(s) of the Form to reflect the new expiration date of 1/31/2020.  The Form is available in multiple formats and languages and can be obtained from the OFCCP’s website here.

OFCCP's New Pay Transparency Rule: Are You Prepared?

February 9, 2016

By Larry P. Malfitano

As we reported in a previous blog post, the Office of Federal Contract Compliance Programs (“OFCCP”) Final Rule implementing Executive Order 13665 (titled Non-Retaliation for Disclosure of Compensation Information) took effect on January 11, 2016.  This Executive Order amended Executive Order 11246 by prohibiting Federal contractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant. The new Rule applies to Federal contractors who enter into or modify existing covered Federal contracts greater than $10,000, on or after January 11, 2016.  The new Rule also requires Federal contractors to:  (1) revise the “equal opportunity clause” to include the new non-discrimination provision in contracts, subcontracts, and purchase orders; (2) incorporate an OFCCP-prescribed non-discrimination provision into existing employee manuals and handbooks; and (3) disseminate the non-discrimination provisions to employees and job applicants. The OFCCP has created two versions of the mandatory non-discrimination provision:

  • One formatted with the OFCCP’s logo and contact information to be posted electronically or printed and posted on an employer’s premises.
  • A second version which includes only the required language.  At a minimum, Federal contractors must use this prescribed language.

With the Final Rule already in effect, contractors should ensure their policies are in compliance with the non-discrimination provisions, make sure the OFCCP non-discrimination provision is included in handbooks or manuals and disseminated to employees and applicants, and ensure their “equal opportunity clause” in contracts, subcontracts and purchase orders is in compliance.

Ten Steps Federal Contractors Should Take to Prepare for OFCCP's Revised Regulations Applicable to Veterans and Disabled Individuals

November 20, 2013

By Larry P. Malfitano

The revised Regulations issued by the Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”), addressing affirmative action obligations applicable to disabled individuals under the Rehabilitation Act of 1973, as amended (“Section 503”), and to protected veterans pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (“VEVRAA”), become effective March 24, 2014.  Due to the numerous requirements in these new Regulations, contractors should start reviewing and implementing procedures to ensure compliance. Ten steps that covered contractors should implement by March 24, 2014 include:

  1. Review current electronic systems and databases to determine if there is capacity to capture protected veteran and disability status for both applicants and employees.  If not, contractors will need to invest in new systems or methods to capture this required data.
  2. Review current referral sources to determine if sources are providing qualified protected candidates; sources that are not should be eliminated and/or new ones should be added.  This is a key component for meeting the 8% hiring benchmark under VEVRAA and the 7% utilization goal under Section 503.
  3. Ensure all required notices are posted.  Where notices are posted electronically, make sure they are accessible to all employees, including those with disabilities.  For contractors who use electronic or internet-based application processes, an electronic notice must be posted and stored with the electronic application to inform job applicants of their EEO rights.
  4. Review collective bargaining agreements to determine if the agreements include notice of the contractor’s affirmative action and non-discrimination policies and request for cooperation.  If they do not, contractors should send annual letters to each union, notifying the union(s) of the policies and requesting cooperation.
  5. Review and update the list of all existing subcontracts, including vendors and suppliers, who should be receiving the mandatory written notice to subcontractors of the contractor’s affirmative action efforts and request for cooperation.
  6. Revise contracts and purchase orders to include the revised mandatory EEO language under both Section 503 and VEVRAA.
  7. Make sure solicitations and advertisements include all the protected categories – minorities, females, disabled individuals, and veterans.  OFCCP has indicated in recent FAQs that just using “D” and “V” is not adequate since abbreviations must be commonly understood by jobseekers.
  8. Update recordkeeping procedures to incorporate the three-year retention requirement for specific records under Section 503 (documentation and assessment of external outreach and data collection analysis) and VEVRAA (documentation and assessment of external outreach, data collection analysis, and benchmarking records).
  9. Revise self-identification forms inviting applicants to self-identify at both the pre-offer and post-offer stage of the selection process.  All Section 503 invitations must use the new OFCCP form which will be posted on OFCCP’s website once approved.  Under the Section 503 Regulations, employees must be invited to self-identify again every five years and reminded on an annual basis that they can voluntarily update their status at any time.
  10. Adopt written reasonable accommodation procedures to ensure uniformity in processing requests.  The OFCCP’s guidance for creating procedures (listed in Section 503 Regulations as Appendix B) can be used in developing such procedures.

New Affirmative Action Regulations Require Hiring Goals for Individuals with Disabilities and Veterans

September 6, 2013

By Larry P. Malfitano

On August 27, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) announced final new regulations for Federal contractors for compliance under Section 503 of the Rehabilitation Act of 1973 ("Section 503") and the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA").  The final rules will become effective 180 days after publication in the Federal Register.

For the first time, both rules require contractors to establish annual hiring benchmarks for qualified disabled individuals and protected veterans.  The OFCCP’s new Section 503 rule establishes a 7% utilization goal for individuals with disabilities for each of a contractor’s Job Groups, or for the entire workforce if the contractor employs 100 employees or less.  The new VEVRAA rule establishes a requirement for an annual benchmark for protected veterans, but allows contractors to choose one of two methods.  One option is to establish a benchmark equal to the national percentage (currently 8%), which will be published annually by the OFCCP.  Another option for contractors is to establish their own benchmark based on the best data available.

Highlights of the final rules that affect both Section 503 and VEVRAA include:

  • Data Collection:  The requirement that contractors document and update annually the number of individuals with disabilities and protected veterans who apply for jobs, as well as the number who are hired.  The data must be maintained for three years.
  • Invitation to Self Identify:  The requirement that contractors invite applicants to self-identify at both the pre-offer and post-offer stage.
  • Incorporation of the EO Clause:  New specific language to be used in subcontracts.
  • Records Access:  The requirement to allow OFCCP access to review documents related to a compliance check or focus review, either on-site or off-site.  In addition, contractors must, upon OFCCP’s request, inform OFCCP of all formats the records are maintained and provide them to OFCCP if requested.

OFCCP Directs Federal Contractors to Use New Census Data

June 18, 2013

By Larry P. Malfitano

The Office of Federal Contract Compliance Programs (“OFCCP”) recently posted a notice on its website informing federal contractors that they must begin to use the new 2006-2010 EEO Tabulation file as census data for all affirmative action plans commencing on or after January 1, 2014.  The United States Census Bureau released the new data file to the public on November 29, 2012, which contains information on 488 occupations.  This new data file replaces the Census 2000 Special EEO File that the OFCCP and covered contractors began using in January 2005.

OFCCP requires contractors, in determining availability estimates for their affirmative action plans, to “use the most current and discrete statistical information available.”  Therefore, contractors are required to use the new 2010 EEO Tabulation to evaluate the reasonableness of all affirmative action plans commencing on or after January 1, 2014.  Contractors may, however, immediately begin to use the 2010 EEO Tabulation in their affirmative action plans if they wish to do so.

OFCCP Issues Criminal Records Directive

March 5, 2013

By Larry P. Malfitano

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued a new Directive on January 29, 2013, consistent with the Equal Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

The OFCCP’s Directive provides information to Federal contractors and subcontractors, Federally-assisted construction contractors and subcontractors, and to all OFCCP personnel about:  (1) the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing non-discrimination obligations; (2) the Training and Employment Guidance Letter (TEGL) 31-11 issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department of Labor’s Employment and Training Administration (“ETA”) and Civil Rights Center (“CRC”); and (3) the Enforcement Guidance issued by the EEOC on April 25, 2012.

According to the Directive, the number of Americans who have had contact with the criminal justice system has increased exponentially in recent years.  In light of the potential racial/ethnic disparities, contractors need to be mindful of Federal and State anti-discrimination laws if they rely on job applicants’ arrest and conviction records in employment decisions.

The Directive also addresses the new procedure under TEGL 31-11 affecting contractors that utilize Federally-assisted workforce systems.  The new TEGL procedures include:

  • when employers register with a covered job bank entity, the job bank entity is required to send the employer a notice explaining that the entity must comply with Federal civil rights laws, which generally prohibit categorical exclusions of individuals based solely on an arrest or conviction history;
  • covered job bank entities are required to use a system to identify vacancy announcements that include hiring restrictions based on arrest and/or conviction records;
  • for job postings that exclude individuals based on arrest and/or conviction history, covered job banks are required to provide employers that have posted these vacancy announcements with a notice which gives the employer the opportunity to remove or edit the vacancy; and
  • covered job bank entities are allowed to continue to post job announcements with language excluding candidates based on criminal history only when accompanied by a notice to job seekers explaining that the exclusions in the posting may have an adverse impact on protected groups and inform them that individuals with criminal history records are not prohibited from applying for the posted positions.

Finally, TEGL 31-11 also describes other Federal laws that may affect contractors’ employment practices regarding the use of criminal records in making hiring decisions.  The first is The Fair Credit Reporting Act, which imposes a number of obligations on employers that use criminal background checks to screen applicants.  The others are The Work Opportunity Tax Credit and the Federal Bonding Program, which are incentives to support employers’ hiring of individuals with conviction histories.

The OFCCP’s Directive is effective immediately.

OFCCP Increases Its Focus on Compensation Issues

October 17, 2012

By Larry P. Malfitano

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) has significantly increased its focus on employers’ compensation systems during scheduled affirmative action compliance audits.  In fiscal year 2011, OFCCP had 27 compliance evaluations with pay provisions for alleged compensation disparities, totaling $1.06 million in monetary benefits.  In 2010, OFCCP reached 10 settlements for alleged bias in compensation.  These are significant increases from 2009 and 2008; only two findings of alleged compensation discrimination were found in 2009 and zero in 2008.

Under Executive Order 11246, Federal contractors are required to conduct self-audits of their pay systems to identify potential gender or race based disparities.  If pay disparities are found, contractors are expected to correct the disparities prior to any potential government audit.  In light of the OFCCP’s increased scrutiny of compensation systems, contractors need to protect themselves by collecting and storing detailed data on factors affecting employees’ pay, such as years of prior job experience, time at the company, time in the position, education, performance ratings, pay grade or level, and additional compensation (commissions, bonuses, incentives, overtime, etc.).  Federal contractors should also be sure to preserve all salary records for employees, to allow for the creation of a salary history for individual employees.  In addition, contractors should have written compensation guidelines, as well as defined polices influencing compensation, such as the impact of performance evaluations on compensation.

It is expected that OFCCP’s heightened focus on compensation will continue to grow. To avoid significant back pay awards based on perceived pay disparities due to race or gender, employers must be proactive in self-auditing their compensation practices and making appropriate adjustments prior to any government review.

Federal Contractors Should Prepare for OFCCP's New Enforcement Efforts

May 30, 2012

By Larry P. Malfitano

Federal contractors may want to start preparing for proposed changes to the regulations issued by the U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"), in connection with federal contractors' affirmative action obligations.  OFCCP expects to have new final regulations in place during 2012, which will increase federal contractors' obligations regarding veterans and disabled individuals, as well as modify the documentation required during compliance evaluations.

Proactive steps that covered employers should consider taking include:

  1. Review outreach and recruitment efforts, particularly with agencies representing disabled individuals and veterans.  Documentation should be kept of all outreach efforts, as well as any responses.
  2. Invite applicants to identify themselves as covered veterans.
  3. Check whether all non-executive job openings are being posted with the appropriate state employment delivery service and maintain documentation of postings.
  4. Review handbooks and employment policies regarding leaves of absence and reasonable accommodations.
  5. Analyze current data collection systems to determine whether there are any issues with collecting the additional information in the OFCCP's proposed Scheduling Letter and Itemized Listing:  (a) employment activity will be required to be submitted by job group and job title; and (b) individual compensation data will need to be submitted for all employees, including such information as gender, race/ethnicity, job title, EEO-1 category, job group, date of hire, base salary, wage rate, hours worked, and other compensation, such as bonuses, incentives, commissions, merit increases, locality pay, and overtime.
  6. Analyze compensation data to determine if adjustments need to be made to eliminate any potential problematic pay disparities.

The proposed Itemized Listing requires covered employers to provide the OFCCP with individualized compensation data for all employees, which will enable the OFCCP to run a variety of analyses.  Covered employers should keep in mind that the OFCCP may not have appropriate measures to safeguard this sensitive data from Freedom of Information Act requests.  Before submitting any compensation data, covered employers should take steps to protect such information.

Major Changes Proposed for Affirmative Action Plans Covering Individuals with Disabilities

January 9, 2012

By Larry P. Malfitano

The U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"), recently issued a proposal to revise the regulations applicable to Section 503 of the Rehabilitation Act of 1973, which requires Federal contractors to take affirmative action to hire, retain, and promote qualified individuals with disabilities.  The proposed changes, if implemented, will substantially increase the obligations imposed on Federal contractors with respect to individuals with disabilities.

The OFCCP proposal includes the following requirements:

  1. Contractors will need to annually survey their employees, providing an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily self-identify in an anonymous manner.  In addition, contractors will be required to invite applicants to self-identify as individuals with disabilities at both the pre- and post-offer stages, using OFCCP mandated language.
  2. Contractors will be required to document and maintain data on ratio of jobs filled to openings, ratio of applicants with disabilities to all applicants, total number of applicants hired, and ratio of individuals with disabilities hired to all hires.
  3. Contractors will be required to engage in mandatory outreach/recruitment efforts that involve listing all employment opportunities (with limited exceptions) with the local employment delivery service, similar to the current obligations under the Vietnam Era Veterans' Readjustment Assistance Act.  Additional required outreach efforts will also be required, including entering into a minimum of three linkage agreements with specific types of outreach sources.  In addition, an annual review and documentation of these recruitment efforts will be required to determine effectiveness in identifying and recruiting qualified individuals with disabilities.
  4. Contractors will be required to establish a utilization goal for individuals with disabilities and set hiring goals for each Job Group in the workforce.  OFCCP proposed a utilization goal of 7%.  However, OFCCP is inviting public comments on the use of a 7% goal and appears willing to consider a goal ranging between 4% and 10%.
  5. Contractors will be required to implement written reasonable accommodation procedures and include the written procedures in their Affirmative Action Plans.
  6. Contractors will be required to annually review and document their personnel processes, as well as physical and mental job qualifications, instead of doing so periodically.
  7. Contractors will be obligated to retain outreach documentation and data collection for five years.

Comments on the proposed rule from interested parties may be submitted to the OFCCP on or before February 7, 2012.  OFCCP anticipates a final rule will be published around Fall of 2012.

OFCCP Proposes Changes To Audit Data Requirements

September 1, 2011

By Larry P. Malfitano

The U.S. Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) recently issued a proposal to revise the Scheduling Letter and itemized listing of documents which federal contractors are required to submit during an affirmative action compliance audit.  The OFCCP’s current Scheduling Letter and itemized listing will expire on September 30, 2011.

The OFCCP is seeking to both add new requirements and make changes to existing data requests. The proposed modifications include:

  1. Adding two new items which require submission of employment policies covering the FMLA, pregnancy leave, and accommodations for religious observances and practices and also submission of the last three years of contractors’ Veterans’ Employment Reports (VETS-100 and/or VETS-100A).
  2. Clarification of information requested in connection with collective bargaining agreements and information on reporting requirements for the preceding year.
  3. Changes to current employment activity requests to require submission of more detailed demographic information related to hires, applicants, promotions and terminations, as well as requiring data submissions by job group and job title, instead of by job group or job title. In addition, the proposals would require more detailed demographic information on compensation by submitting aggregate data as opposed to disaggregate data.
     

 

OFCCP ’s Director, Patricia Shiu, stated in a webchat held on July 12, 2011 that the OFCCP will review the “few comments received” and “will make a determination regarding the letter and the itemized listing in the very near future.” She further stated “our goal is to complete our consideration of the comments, any revisions needed, and return the document with any appropriate revisions to OMB by no later than the end of July.” Shiu added that the OFCCP will follow Office of Information and Regulatory Affairs protocol and will provide a second public comment period prior to issuing a final Scheduling Letter and itemized listing. Although the current Scheduling Letter and listing are set to expire September 30, 2011, Shiu stated “we do not anticipate that an emergency extension will be needed.”

The second comment period regarding the OFCCP’s proposed Scheduling Letter changes has not been announced. However, it appears fairly certain that Scheduling Letter changes will be enacted for audits conducted after September 30, 2011.
 

The Wait Is Over: OFCCP Issues New Directive On Functional Affirmative Action Programs

July 20, 2011

By Tyler T. Hendry

Federal contractors should be aware that the Office of Federal Contract Compliance Programs (OFCCP) recently issued a much anticipated directive impacting certain affirmative action programs. The new directive, which became effective on June 14, 2011, outlines the procedures for developing and maintaining a “Functional Affirmative Action Program” (FAAP).  The directive ends OFCCP’s year-long moratorium on processing contractor requests to develop or renew FAAP agreements.

FAAPs are affirmative action programs covering a particular business function or business unit rather than covering a particular establishment or worksite. For example, covered contractors may develop an FAAP for all marketing associates across multiple offices in different states, instead of having to create affirmative action programs for each individual establishment where those associates work. Unlike establishment-based programs, covered contractors cannot implement FAAPs without first obtaining OFCCP approval and then entering into an agreement with the Agency.
 

The new directive makes what OFCCP considers to be “significant changes” to the FAAP approval and agreement processes. Under the directive, a contractor must obtain prior written approval from OFCCP before developing an FAAP. This terminates OFCCP’s past practice of allowing for automatic approval if the Agency failed to act on a contractor’s FAAP request within 120 days.

The directive also sets forth contractor eligibility requirements. Each business function or unit must meet the following criteria to be considered eligible for an FAAP:

  • Currently exist and operate autonomously;
  • Have personnel practices or transactional activities (e.g., hires, promotions, terminations, compensation decisions) that are distinguishable from other parts of the contractor’s organization;
  • Include at least 50 employees;
  • Have its own managing official; and
  • Have the ability to track and maintain its own personnel activity.

In addition, FAAP agreements will now expire after three years, rather than five, and contractors could face compliance audits if they fail to submit an annual FAAP update.

In terms of practical guidance, the directive outlines the elements that must be included in an FAAP, the basic principles of FAAP agreements, and the procedures for requesting, modifying, updating, renewing, or terminating such agreements. Attachments to the directive provide a checklist of documents that must be submitted during the approval process and examples of how contractors may develop either an establishment-based affirmative action program or the alternative FAAP. OFCCP has also published a list of Frequently Asked Questions regarding FAAPs on its website.

Employers considering the use of FAAPs should carefully review the obligations and requirements imposed by the new directive. At the same time, employers with existing FAAPs should review the directive for guidance on renewing, modifying, or terminating such agreements.
 

Federal Contractors Can Expect Strong OFCCP Enforcement Effort on Affirmative Action

March 18, 2010

By Christa Richer Cook

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), the Federal agency responsible for enforcing affirmative action mandates against Federal contractors and subcontractors, recently reported on its enforcement efforts for fiscal year 2009. OFCCP collected $9.31 million in back pay from 94 federal contractors through settlements of discrimination claims last year. It completed close to 4,000 compliance evaluations, resulting in conciliation agreements with nearly 700 employers. OFCCP issued this data in connection with its budget request for 2011, which anticipates continued growth and aggressive enforcement efforts. Federal contractors can anticipate that OFCCP’s enforcements efforts will likely increase this year. The Agency’s budget for fiscal year 2010 was increased significantly by the Obama administration in order to increase the number of compliance officers and to meet the agency’s goal of conducting more on-site compliance reviews.

As reported by BNA’s Daily Labor Report, in 2010, the agency also intends to change its focus by increasing its affirmative action compliance efforts and more closely scrutinizing Federal contractors’ affirmative action plans. Construction industry employers are among those who are likely to be targeted in the coming year.

OFCCP has also announced a renewed emphasis on affirmative action efforts for veterans and disabled workers, which includes plans to amend and strengthen regulations under the Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act. In light of OFCCP’s expressed intent to make affirmative action its enforcement priority, federal contractors should ensure that their Affirmative Action Plans, and related data on employment actions, are in place, up to date, and in full compliance with regulatory requirements.