In the wake of the coronavirus (COVID-19) pandemic, many federal contractors are questioning to what extent the Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) will continue to operate and whether recently passed legislation includes any relief for federal contractors. While the OFCCP has made it clear that it remains “virtually” operational, it will not be “business as usual.”
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Familiar with this? It’s time to update your affirmative action plans. For the women and minorities plan, you gather your applicant data, prepare spreadsheets and update your written materials to reflect new goals and changes in your recruiting sources. For the veterans and individuals with disabilities plan, you update a bit and you’re done. Starting early next year, however, the rules will change making updates more onerous for employers. On August 27, 2013, the Office of Federal Contract Compliance Programs announced final rules for federal contractors regarding hiring and employment of disabled individuals and protected veterans and imposing new data retention and affirmative action obligations on contractors. The rules are expected to be published in the Federal Register shortly and will become effective 180 days later.
The key changes include:
- Benchmarks. Contractors must establish benchmarks, using one of two methods approved by the OFCCP, to measure progress in hiring veterans. Likewise, contractors must strive to hire individuals with disabilities to comprise at least seven percent of employees in each job group. The OFCCP says these are meant to be aspirational, and are not designed to be quotas.
- Data Analysis and Retention. Contractors must document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans that they hire. Likewise, for individuals with disabilities, contractors are required to conduct analyses of disabled applicants and those hired. Such data must be retained for three years.
- Invitation to Self-Identify. Contractors must invite applicants to self-identify as protected veterans and as an individual with a disability at both the pre-offer and post-offer phases of the application process, using language to be provided by the OFCCP. This particular requirement worries employers who know that the less demographic information they have about applicants, the better – especially when the application is denied. Contractors must also invite their employees to self-identify as individuals with a disability every five years, using language to be provided by the OFCCP.
Additional information, including with respect new requirements such as incorporating the equal opportunity clause into contracts, job listings, and records access, can be found here (http://www.dol.gov/ofccp/regs/compliance/vevraa.htm) and here (http://www.dol.gov/ofccp/regs/compliance/section503.htm).
Contractors with an Affirmative Action Plan already in place on the effective date of the regulations will have additional time, until they create their next plans, to bring their plan into compliance. However, whether they have a current Affirmative Action Plan or not, federal contractors should begin looking at these new rules now and take steps to ensure they are in compliance.