Here are some of the other important changes included in the final affirmative action rule:
The incorporation of specific EO Clause language in subcontracts. In order to incorporate the equal opportunity (EO) clause by reference in subcontracts, contractors must include specific language spelled out in the new regulations. This language notifies subcontractors of their responsibilities and includes a reference to “veteran status.” The reference to veteran status must also be included in the EO clause when listing vacant positions.
Use of electronic posting. When the contractor has employees who do not work at the contractor’s physical location, the OFCCP will allow a contractor to satisfy its posting obligation by posting the EEO notice in electronic format, provided that the contractor either provides these employees with computers that can access the electronic posting or has actual knowledge that the electronically posted notice is accessible to its employees.
Compliance evaluations. The final rule cements OFCCP’s position that it may obtain information pertinent to a compliance evaluation for periods after the date of the scheduling letter. The rule states that the OFCCP may extend the temporal scope of an evaluation and examine information after the date of the compliance evaluation scheduling letter, if the OFCCP deems it necessary to carry out its investigation of potential VEVRAA violations.
Contractors must inform the OFCCP of the format(s) in which it maintains records and other information (e.g., Word; PDF; Excel), and provide the records and information to the OFCCP in the format(s) the OFCCP selects (from the contractor’s available formats).
The OFCCP may also request that the contractor provide documents either on-site or off-site during compliance checks and that the OFCCP may conduct focused reviews both on-site and off-site.
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Effective Date
The final rule becomes effective 180 days after its publication in the Federal Register, or on March 24, 2014. As of this effective date, contractors must comply with all elements of the final rule except for the new Affirmative Action Program (AAP) requirements in Subpart C.
What this means is that contractors with an AAP in place on the final rule’s effective date may maintain that AAP until the end of their plan year and delay their compliance with the new requirements of Subpart C until the start of their next AAP cycle.
During the remainder of the AAP cycle, contractors are nevertheless encouraged to begin updating their employment practices and IT systems to come into compliance with the revised requirements of Subpart C of the final rule as soon as possible. It is important to remember that contractors must comply with the other requirements of the final rule, in subparts A (EO clause), B (nondiscrimination), D (enforcement), and E (recordkeeping), by the effective date.
Affirmative action—Important, to be sure, but not the only challenge on your plate. “Maintain internal equity and external competitiveness and control turnover, but still meet management’s demands for lowered costs.” Heard that one before?
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The provision re electronic posting seems a little vague. E.g. what qualifies as providing computers that can be used to access the notice? Is it enough to have a common computer available for computers on a worksite (like for construction workers who wouldn’t use a computer as part of their job) that they can use during their lunch hour? And what constitutes actual knowledge that employee have access to an electronically posted notice? Is it enough to know, e.g., that an employee has a smartphone?