by Larry Malfitano, Esq., Bond, Schoeneck & King, Syracuse
Federal contractors will soon have new rules for managing veterans and disabled workers. Now is the time to prepare for the many changes that become effective March 24.
Revised regulations have been issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), addressing affirmative action obligations applicable to disabled individuals under the Rehabilitation Act of 1973 and protecting veterans pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).
Identification, documentation
One of the biggest changes involves self-identification. If you are a covered federal contractor, you must invite applicants to identify their disability status at the time of application. In addition, once a year you must report on the number of people with disabilities who apply for jobs and how many you hired.
You also have to document your outreach efforts and analyze their effectiveness. The new veteran regulations require similar documentation, data collection, and analysis for protected veterans. These records on hiring and outreach must be kept for at least three years.
Your affirmative action plan must include a hiring benchmark for protected veterans. For disabled workers, you must perform a utilization analysis. There is no formal quota for veteran or disabled applicant hiring, but the federal government has set a utilization goal of 7% for disabled workers; the benchmark for protected veterans is about 8%.
10 compliance questions
1. Do you know who’s a veteran and who’s disabled? Review your IT systems and databases to determine if you can capture protected veteran and disability status for both applicants and employees. If not, you will need to invest in new systems.
2. Can you meet new hiring and utilization benchmarks? Review current recruiting to determine if your sources of new employees result in a pool of qualified protected candidates. If not, you will need to expand your recruiting efforts. This is a key component for meeting the 7% Rehabilitation Act utilization goal and the 8% VEVRAA hiring benchmark.
3. Are you posting all the required notices? Ensure all required notices are posted. If you electronically post notices, make sure they are accessible to all employees, including those with disabilities. Contractors that use electronic application processes must post an electronic notice informing applicants of their EEO rights. Store a copy with each application.
4. Are your collective bargaining agreements compliant? Review union contracts to determine if they include notice of the contractor’s affirmative action and nondiscrimination policies and request for cooperation. If they do not, send annual letters to each union, notifying them of the policies and requesting cooperation.
5. Are subcontractor notices current? Review and update the list of all existing subcontractor vendors and suppliers that should receive the mandatory written notice of your affirmative action efforts and request for cooperation.
6. Do your contracts include the right EEO notices? Revise contracts and purchase orders to include the revised mandatory EEO language under both the Rehabilitation Act and VEVRAA.
7. Are you still using abbreviations in your want ads? Make sure solicitations and advertisements include all the protected categories—minorities, women, disabled individuals and veterans. OFCCP has indicated in recent FAQs that just using “D” (for disabled) and “V” (veteran) is inadequate, since abbreviations must be commonly understood by job-seekers. Spell them out.
8. Are you keeping records long enough? Update record-keeping procedures to incorporate the three-year retention requirement for specific records under the Rehabilitation Act (documentation and assessment of external outreach and data collection analysis) and VEVRAA (documentation and assessment of external outreach, data collection analysis and benchmarking records).
9. Are you requesting self-identification the right way? Revise self-identification forms inviting applicants to self-identify at both the pre-offer and post-offer stage of the selection process. All Rehabilitation Act invitations must use the new OFCCP form, which will be posted on OFCCP’s website once approved. Under the Rehabilitation Act regulations, employees must be invited to self-identify again every five years and reminded on an annual basis that they can voluntarily update their status at any time.
10. Are you making the reasonable accommodations process uniform and consistent? Adopt written reasonable accommodation procedures to ensure uniformity in processing requests. The OFCCP’s guidance for creating procedures can be used in developing such procedures.
Consequences of noncompliance
What happens if you miss the goals or benchmarks? While failing to hire enough veterans or disabled workers may invite questions about your efforts, you won’t face immediate consequences. However, the potential penalty for noncompliance with the regulations can lead to withholding of contract payments and debarment from future contracting for up to three years.
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Larry P. Malfitano is chair of Bond, Schoeneck & King’s labor and employment law practice. Contact him at (315) 218-8000 or lmalfitano@bsk.com.
