Employers doing business with the federal government need to mark March 24 in red on their calendars. That’s when major parts of new regulations affecting how they recruit and hire veterans and people with disabilities take effect. 
The Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) requires contractors to take affirmative action to employ veterans covered under the act. Section 503 of the Rehabilitation Act requires the same for people with disabilities. David S. Fortney, cofounder of Fortney & Scott, LLC, in Washington, D.C., and Emily L. Bristol, also an attorney with Fortney & Scott, have been involved in representing contractors through the rule-making process that has culminated in new rules changing requirements under the VEVRAA and Section 503.
Recently, Fortney and Bristol hosted the HR Hero webinar OFCCP Final Rules for Federal Contractors: New Affirmative Action and Equal Opportunity Obligations Explained and offered the following insights on the new regs affecting federal contractors.
New regs
The U.S. Department of Labor’s (DOL) Office of Federal Contractor Compliance Programs (OFCCP) has been at work on the rules for about four years. The new regulations for VEVRAA require contractors to adopt annual benchmarks for hiring veterans based either on the percentage of veterans in the national workforce—currently 8%—or on their own benchmark based on the best available data. Fortney advises contractors to be careful if they veer from the 8 percent benchmark, cautioning “particularly in the early stages as these regulations are being rolled out, I would stick to the 8%.”
The Section 503 rule sets what the OFCCP is calling “an aspirational goal” of having 7% of each job group in a contractor’s workforce being made up of qualified individuals with disabilities. While both the 8% veterans’ benchmark and 7% disability goal are not being called quotas, contractors will be required to take steps designed to achieve those numbers.
Some compliance delayed
Not all parts of the regulations will be effective on March 24. In a concession to employers, the OFCCP has stated that contractors don’t have to comply with the affirmative action requirements of Subpart C of both regulations until the next affirmative action plan cycle after March 24. It’s typical for plan cycles to begin on January 1, Bristol said, so many employers won’t need to have new plans in place until January 1, 2015.
Despite that leeway, Bristol said the OFCCP is “encouraging contractors to get a head start” and begin updating their computer systems and employment practices right away so they’ll be in compliance as soon as possible.
Notice requirements
Although some of the bigger changes won’t take effect until the contractor’s next affirmative action plan cycle, the new rule’s notice requirements go into effect March 24.
Among those notice requirements are stipulations that contractors update their postings and notices to include a new equal opportunity clause when they advertise for employees. But Fortney said this requirement comes with a “maybe.”
Fortney explained that the equal opportunity clause must be included in underlying contracts such as purchase orders. Since another set of federal regulations—the Federal Acquisition Regulations (FAR)—also governs the equal opportunity clause, the FAR needs to be amended to incorporate the new requirements. Fortney said he’s learned that the DOL is in negotiations with the FAR council and those regulations are expected to be amended.
Contractors must use the prescribed language of the equal opportunity clause, and they have an annual obligation to notify subcontractors, vendors, and suppliers of their affirmative action obligations. The notice also must request “appropriate action” from any subcontractors, vendors, and suppliers.
Contractors also must use revised bulletin board notices that are conspicuous and understandable. For example, Bristol said notices shouldn’t be too high for someone in a wheelchair to see. She said the OFCCP is going into “very minute detail” to ensure employees get the word.
The new regulations also require contractors to use a stronger equal employment opportunity tagline in their job advertisements. This tagline is how employers show they’re equal opportunity employers. “EEO taglines are going to get a little bit longer,” Bristol said. For example, the OFCCP is now saying employers can’t just use the initials D and V in their taglines. Instead they need to spell out “disabled” and “veteran.”
Self-identifying and asking applicants about disabilities
The new regulations also require contractors to invite applicants to self-identify as being a covered veteran or having a disability. It’s important, however, that contractors don’t begin asking applicants and employees about their disability status before March 24 when the law requires them to ask. Fortney said there is concern that such an inquiry could be a violation of the Americans with Disabilities Act and employers have no authority to collect information about disabilities before the March 24 effective date.
The Equal Employment Opportunity Commission has issued an opinion letter supporting the pre-offer self-identification, but a lawsuit has been filed by the Associated Builders and Contractors challenging the issue.
For Section 503, contractors must distribute a prescribed self-identification form. “The new form must be used verbatim,” Fortney said. “You do not alter that form.” Contractors also will be required to issue the self-identification form to employees every five years.
The new regulations impose a number of other obligations, but contractors should focus on whether their actions are working to bring in more covered veterans and people with disabilities. “Outreach and recruiting activities are the cornerstone of these regulations,” Bristol said. Contractors need to document their actions so that if they don’t meet the benchmarks and goals, they can show the OFCCP the efforts they’ve made.
Want to learn more?
Do you need to know more about the specifics of the OFCCP’s expectations, what’s required as of the March 24 effective date, what to do in advance of a new affirmative action plan cycle, and how to get on solid ground in the event of an OFCCP audit? David S. Fortney and Emily L. Bristol will speak in detail about various requirements under the new regulations in the March 5 webinar OFCCP Final Rules for Federal Contractors: New Affirmative Action and Equal Opportunity Obligations Explained. Listeners will have the opportunity to learn how the new regs affect them and to submit questions for Fortney and Bristol to address specifically. For more information, go to http://store.hrhero.com/events/audio-conferences-webinars/ofccp-final-rules or call 800-274-6774.