Affirmative Action Regs: What Federal Contractors Need to Do by March 2014

Section 503 of the Rehabilitation Act of 1973 seeks to reduce discrimination against individuals with disabilities by requiring federal contractors and subcontractors to have affirmative action plans (AAPs) for hiring disabled individuals. VEVRAA – the Vietnam Era Veterans' Readjustment Assistance Act – does the same thing for veterans. Both of these regulations have been beefed up this year, resulting in new obligations for federal contractors. Let's take a look at the changes, which go into effect on March 24, 2014.

Changes to Make By March 24

Here are the changes that federal contractors and subcontractors need to make, and actions they need to take, by March 24, 2014:

• Use the new prescribed Equal Employment Clause in your contracts and subcontracts. This new language and citation is to be included in each subcontract, including subcontracting vendors and suppliers. Include it in anything that relates to your ability to perform your duties or procure services or materials necessary or essential for your federal contract. Your suppliers, vendors, and subcontractors are required to agree to these terms as part of doing business with you.
  
  "You need to check the regulation because there are very specific requirements about how the flow-down clauses are to be worded. And indeed . . . the regulations are detailed and prescriptive." David S. Fortney advised in a recent BLR webinar.
• If you work with a union or other labor organization, send them notice of your obligations. You'll need to give them notice that you're a federal contractor with 503 and VEVRAA obligations. Use this opportunity to ask for their cooperation. If you have a collective bargaining agreement, it may need to be revised as well. Either way, advise them of your company's commitment to affirmative action.
• Use the new revised bulletin board notices for notices posted on bulletin boards for applicants and employees.
• Use either the intranet or internet for required postings, as appropriate, and be sure the postings are accessible to individuals with disabilities.
• Beef up the EEO tag line in job postings and advertisements. Now you must expand it to specifically reference EEO, affirmative action, and individuals with disabilities and veterans. (Labor department regulations now say that those references need to be included).
• You MAY (but don't have to) begin using new voluntary self-ID forms and processes for applicants and employees as of March 24. "The most controversial component of this rule is that you have to now request that persons who are applying for jobs will . . . voluntarily identify whether they are an individual with a disability and whether they are a protected veteran." Fortney advised.
  
  This is already something contractors should be doing with respect race, gender, and ethnicity. But we have not asked at the applicant stage about disability and veteran status before. In fact, the ADA actually prohibits us from asking this of applicants before extending an offer of employment, so this one is tricky.
  
  "The key here is that because you are a federal contractor, these regulations effectively carve out an exception to the ADA's general prohibition against seeking that information—that is, disability information from applicants—and now you are required as a federal contractor to ask applicants about that information." Fortney told us. However, don't start collecting this information before the deadline; since that exception is only valid after the rule goes into effect.

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.

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.