Federal regulations created to reduce discrimination against individuals with disabilities and disabled veterans by requiring federal contractors and subcontractors to have affirmative action plans (AAPs) have recently been updated, resulting in new obligations for federal contractors. The changes go into effect on March 24, 2014.
In a previous article, we explained what federal contractors needed to do before the effective date, as described by attorney David Fortney in a recent BLR webinar. However, there are additional obligations that will go into effect with the first affirmative action plan (AAP) you put in place after the new rules take effect on March 24. This means that any AAP already in place on March 24 does not have to be updated, but the next one you create must comply with these new obligations:
- Describe your "review of personnel" processes in your AAP. Positions and role descriptions must be reviewed periodically and modified as needed. In the AAP, therefore, you need to describe the review process you will use and the review schedule.
- Develop and include a schedule and describe in the AAP the process for reviewing the physical and mental qualifications for each job. The jobs need to be reviewed to see if there are changes to the qualifications.
- Send policy notices to vendors, as mentioned previously. There is an annual obligation to send a written notice of your company policy related to your affirmative action efforts; this notice should request "appropriate action on their part" and should be sent to all subcontractors, subcontracting vendors, and suppliers.
- Assess the effectiveness of your external outreach and recruitment efforts. Recommended recruitment activities are outlined in the regulations. Your evaluation must be documented, and it should include the criteria (including the current and two most recent previous years of data analysis) used to evaluate effectiveness of each effort. It also must include a conclusion as to whether each effort was effective. If it was not effective, you must identify and implement efforts listed in regulations.
- Report applicant and hire data. Include: total number of applicants; the number of applicants who self-identified as individuals with disabilities (for 503); number of applicants who either self-identified as protected veterans or who are otherwise known to be protected veterans (for VEVRAA); total number of job openings and total number filled; total number of applicants hired; number of applicants with disabilities hired (for 503); and number of protected veterans hired (for VEVRAA). By or before your next AAP after March 24, you will need to start keeping all records necessary to do these analyses.
- For VEVRAA, create and document your own hiring benchmark. You can either use the OFCCP's published benchmark (currently 8 percent); or develop your own by utilizing the five factors published by the OFCCP. Be prepared to defend your own benchmark if it is less than the 8 percent. Document and retain considered factors for three years. This needs to be done annually and is not a part of the AAP. (You'll want to start keeping all records necessary to do these analyses).
- For 503, you need to develop a utilization analysis. There is a utilization goal (not a hiring benchmark) of 7 percent for each job group for each AAP. (Like the others, you'll want to start keeping all records necessary to do these analyses).
- For 503 you also must identify problem areas and corrective actions where underutilized. When the representation is less than 7 percent, assess whether and where impediments exist. Evaluate personnel processes, the effectiveness of outreach and recruitment activities, and the results of internal audit activities, etc. (Start keeping all records necessary to do these analyses).
- For the AAP that goes into effect on or after March 24, 2014, you MUST begin using new voluntary self-ID forms and processes noted in the section above.
For more information and tips to prepare for Section 503 and VEVRAA changes, order the webinar recording of "OFCCP Final Rules for Federal Contractors: New Affirmative Action and Equal Opportunity Obligations Explained." To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney David S. Fortney is a co-founder of Fortney & Scott, LLC. Mr. Fortney regularly advises and represents clients facing audits by OFCCP, including OFCCP's compensation audits, desk audits, on-site reviews, audits of Functional Affirmative Action Programs, and pre-award compliance evaluations.