OFCCP’s Revised Veterans and Disability Regulations: The Affirmative Action (“Subpart C”) Requirements

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As we approach the summer months, companies are continuing to implement the revised regulations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in regard to protected veterans and individuals with disabilities. By now, federal contractors and subcontractors should have implemented the items that were to have been in place by March 24, 2014. There are various other requirements in the affirmative action portions of the revised regulations that companies should now be considering.

Timing for the Various Provisions Within the Revised Regulations



As I have noted in previous articles for The OFCCP Digest, the revised regulations regarding protected veterans and the revised regulations regarding individuals with disabilities are each divided into five major parts. Subpart D discusses the procedures OFCCP will follow to conduct compliance reviews, while Subpart E contains information on record-keeping and OFCCP’s right to access records. There are no specific time frames associated with these sections of the regulations other than the record-keeping portion of Subpart E that defines how long various records must be kept.

Subparts A and B of the revised regulations contain various provisions that were to have been in place by March 24. Some of these provisions were carried over from the previous version of the regulations. Other provisions, such as the requirement to provide the state Employment Service Delivery System offices with contact information and the requirement to include specific EEO language regarding veteran and disability status on advertisements, were new in the revised regulations. Companies will need to continue meeting these various requirements so long as they are covered by the revised regulations.

Subpart C in each set of the revised regulations is entitled “Affirmative Action Program.” Subpart C contains various provisions regarding the contents of a company’s affirmative action plans. Subpart C also contains requirements regarding various actions that companies must take that should help the company fulfill its affirmative action obligations. The timing for the requirements in Subpart C falls into three categories:
  • There are actions that must be implemented on or before the start date of a company’s first set of affirmative action plans (AAPs) for veterans and individuals with disabilities that are completed after March 24, 2014. For a company that has January 1 AAPs, that means that these actions must be implemented on or before January 1, 2015. Companies that have April or May affirmative action plans should already have implemented these provisions.
  • There are actions that must be implemented during the first year that a company’s affirmative action plans are subject to the revised regulations. For a company that has January 1 AAPs, these actions must be implemented no later than December 31, 2015. For a company that has April 1 AAPs, these actions must be implemented no later than March 31, 2015.
  • There are a few actions that will be implemented the second time a company’s AAPs are updated after March 24, 2014. These items relate to the analysis of data that will be collected during the first year a company is subject to the Subpart C provisions of the revised regulations.
Once the provisions in the revised regulations apply to a company, they must be followed every year. Thus, the provisions concerning the contents of AAPs apply to every set of AAPs that are produced after March 24, 2014, and the provisions concerning other actions to take must be taken on an annual basis.

I should note that companies often produce a single AAP that includes information on both veterans and individuals with disabilities. For many years, the provisions in the regulations for veterans have closely mirrored the provisions in the regulations for individuals with disabilities. This continues to be the case with the revised regulations, though there are a few instances where the revised regulations regarding veterans do not directly parallel the regulations regarding individuals with disabilities. Companies will need to determine whether they intend to have one AAP cover both veterans and individuals with disabilities or separate AAPs for these groups. Since companies may have separate AAPs, I will refer below to “AAPs” rather than “the AAP” for veterans and individuals with disabilities.

Items That Should Be in Place When AAPs are First Updated



There are a number of new items in the revised regulations that should be in place at the time that a company’s AAPs are first updated after March 24. Please note that requirements in the regulations for veterans and individuals with disabilities that were in place in prior versions of the regulations are generally not covered below.
  • Applicant and Employee Surveys
As I noted in my March article for The OFCCP Digest, the revised regulations make major changes to the requirements regarding the surveying that must be done by federal contractors and subcontractors. Here is a short summary of the surveying that needs to be in place no later than the date that AAPs are first updated:
  • Companies must survey new employees for each veteran status protected under OFCCP’s regulations. The exact format of the survey is not defined in the revised regulations, but there are various provisions that must be included in the survey. Among these provisions are something indicating that completion of the survey is voluntary, that the results of the survey will be kept confidential, and that refusal to complete the survey will not subject the employee to any adverse treatment.
  • Companies must survey new employees for disability status using a survey form that OFCCP has developed. Companies have NO discretion over the contents of this form.
  • Companies must survey applicants at the pre-offer stage of the selection process regarding veteran status. Again, the exact format of this survey is not defined in the regulations, but it must include various provisions including the provisions noted in the first bullet above. The requirements regarding the applicant survey are different from the employee survey in that companies are only required to ask applicants whether they are protected under the veterans regulations. Companies are not required to ask applicants about each individual protected veteran status.
  • Companies must survey applicants at the pre-offer stage of the selection process regarding disability status using the survey form developed by OFCCP. As with the employee survey, companies have no discretion over the contents of this form.


  • Equal Employment Opportunity/Affirmative Action Policy Statement
Companies are required to include their equal employment opportunity/affirmative action (EEO/AA) policy statements in their AAPs for veterans and individuals with disabilities.
  • A new requirement regarding the EEO/AA policy statement is that the policy statement must indicate the support of the company’s top U.S. official (such as the company’s CEO or the head of the U.S. division of a foreign company) for the company’s affirmative action program.
  • The policy statement must provide for an audit and reporting system.
  • The policy statement must assign overall responsibility for implementation of the AAP to a specific person.
  • The policy statement must make assurances about certain activities that will be administered without regard to protected veteran status or disability status.
  • The policy statement must make it clear that employment decisions will only be based on valid job requirements.
  • The policy statement must provide that there will be no harassment, intimidation, or other adverse action based on activities protected under the regulations.
Companies must ensure that the EEO/AA policy statement is included in policy manuals, on intranet sites, and/or in other places that make the policy statement available to employees. If they have collective bargaining agreements, companies must also inform their unions about the EEO/AA policy and ask for the cooperation of the union.
  • Hiring Benchmark for Veterans and Utilization Goal for Individuals with Disabilities
The first AAPs prepared under the revised regulations must include both the hiring benchmark for veterans and the utilization goal for individuals with disabilities that appear in the revised regulations.
  • Companies need to establish an annual hiring benchmark regarding veterans. Companies can either use a process found in the revised regulations to create their own benchmark, or they can use a figure supplied by OFCCP for this purpose. The current hiring benchmark from OFCCP suggests that 7.2% of individuals hired should be protected veterans. Since companies were not required to previously capture data on hiring for veterans, there is nothing to measure against this hiring benchmark in the first AAP prepared under the new regulations.
  • Companies generally need to measure workforce composition in each job group at each facility that has an AAP against the 7% utilization goal established by OFCCP. Companies with 100 or fewer employees are allowed to compare the entire workforce population to the 7% utilization goal. Federal contractors and subcontractors should have been collecting data regarding disability from employees for some time, and thus they should be able to actually make this comparison in the first AAP prepared under the new regulations.


  • Assessment of Outreach
The revised regulations require an assessment of outreach efforts conducted by the company. While the first assessment of outreach will not include the data metrics found in the revised regulations, this assessment should include the following items:
  • A discussion of the criteria used to evaluate outreach efforts
  • A discussion of the documentation regarding the effectiveness of outreach efforts
  • A conclusion regarding the effectiveness of outreach efforts
The assessment of outreach in subsequent AAPs will include a review of the data metrics discussed below that must be maintained for veterans and individuals with disabilities.

Actions That Should Be Taken During the First Year After AAPs Have Been Revised



While the regulations don’t explicitly say so, it appears there are various actions that do not need to be completed the first time that AAPs are updated to meet the new regulations. Instead, these actions should be taken during the first year after the AAP updates. For example, for companies with January 1 AAPs, these actions should be taken some time during the year from January 1, 2015 to December 31, 2015.
  • Training for Managers and HR Staff
The revised regulations indicate that “all personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes should be trained to ensure that the commitments in the contractor’s affirmative action program are implemented.” There is no guidance in the regulations on what this training should constitute, how long it should last, or when it should occur.
  • Letters to Vendors
One of the items in regard to external dissemination of a company’s EEO/AA policy is a requirement to send written notification of the company’s policy to “all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part.” This is effectively a return to sending the kind of letters to vendors that companies routinely sent before 2000. It seems clear the letters must be sent on an annual basis to vendors. However, there is no specific guidance on the content required for these letters or the timing for sending these letters. There is no requirement that vendors actually return the letters, only that the letters are sent.
  • Re-Survey of Employees
Sometime during the year after AAPs are first updated under the revised regulations, there must be a re-survey of a company’s entire workforce to gather information on disability status. This survey MUST use OFCCP’s disability survey form. There is no similar requirement to re-survey for protected veteran status, but companies may be well-served by conducting a more general survey for demographic information rather than simply surveying for disability information. The re-survey must be completed no later than the end of a company’s first AAP year under the revised regulations. Thus, companies with January 1 AAPs would need to complete this re-survey no later than December 31, 2015, while companies with July 1 AAPs would need to complete this re-survey no later than June 30, 2015.

Items That Must Be in Place at the Time of the Second Update of the AAPs



While there are many items under the revised regulations that must be implemented when AAPs are first updated under the revised regulations or during the first year after AAPs are revised, there is one set of requirements that cannot be fully implemented until the second time that AAPs are updated. This set of requirements involves the data metrics that companies must analyze as part of their affirmative action plans. Companies must include the following data metrics starting with the second AAPs completed under the revised regulations:
  • The number of applicants who are protected veterans or individuals with disabilities
  • The total number of job openings and total number of jobs filled
  • The total number of applicants for all jobs
  • The total number of protected veterans and individuals with disabilities hired
  • The total number of applicants hired
In the second AAP update under the new regulations, companies should have one year of data based on the applicant and employee surveys conducted during the previous year. This parallels a company’s AAP for minorities and females, where one year of personnel activity data is analyzed in each AAP update. However, the data metrics in the AAPs for veterans and individuals with disabilities become more complex in subsequent years, as OFCCP expects that federal contractors and subcontractors will ultimately include three years worth of information in their data metrics. This means that a company will not have what OFCCP considers a complete data set until the fourth AAP update under the new regulations.

The data metrics noted above are not fully defined in the revised regulations. However, OFCCP has released answers to frequently asked questions (FAQs) on its website that address the nature of these data metrics. These FAQs can be found at http://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm and http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm. Please note that there is some continuing controversy about how OFCCP has interpreted the language found in its regulations regarding ideas such as “total number of jobs filled” and “total number of applicants hired.” While I will be writing more about data metrics in the future, Cara Crotty has an interesting article in the January 2014 edition of The OFCCP Digest on this subject.

In Conclusion



While there has been much work done already by federal contractors and subcontractors to implement the revised regulations for protected veterans and individuals with disabilities, there is still much work ahead. Companies with AAPs that will be updated later in 2014 or early in 2015 should begin planning now for how they will implement the Subpart C items noted above. Companies with AAPs that have already been updated should ensure that the items noted above have been included in their AAPs. Companies with AAPs that will be updated in summer should quickly consider how they will accomplish the items that need to be in place on the start date of their new AAPs and how they will then begin work on the remaining items associated with the revised regulations.

For more information on OFCCP’s revised regulations regarding protected veterans and individuals with disabilities, please contact Bill Osterndorf at wosterndorf@hranalytical.com.

Please note: nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © HR Analytical Services Inc. 2014