Compliance After March 24: Now What?

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The revised Office of Federal Contract Compliance Programs (OFCCP) regulations for Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Assistance Act (VEVRAA) are now in effect. The date has come and gone, so what now? What should contractors have in place, and what should they be working on? What is OFCCP doing now, and what might we see on the horizon? Let’s explore these and many other important questions.

First, what should be in place right now? The changes for Section 503 and VEVRAA federal contractors should have in place are:
  • Updated Equal Opportunity Clause in applicable subcontracts
  • Updated EEO/AA Policy Statement
  • Updated EEO tagline for advertisements
  • Additional notice to state employment service offices
  • Other administrative changes
The Equal Opportunity Clause (EO Clause) is language that must appear in any contract with a subcontractor, supplier, or vendor if your company buys goods or services from another company that are necessary to fulfill your contract with a federal government agency. The supplier must be notified that it may be subject to the affirmative action regulations. This clause has always been a requirement in subcontracts and purchase orders; however, the new regulations added two new paragraphs to emphasize Section 503 and VEVRAA obligations. Recently, OFCCP said it will allow the two new additional paragraphs to be combined into one. Here is Berkshire’s suggested sample language for the EO Statement; note the second paragraph is in bold:
  • Affirmative Action Notice: Vendors and subcontractors are notified they may be subject to the provisions of: 41 CFR Section 60-300.5(a); 41 CFR Section 60-741.5(a); 41 CFR Section 60-1.4(a) and (c); 41 CFR Section 60-1.7(a); 48 CFR Section 52.222-54(e); and 29 CFR Part 471, Appendix A to Subpart A with respect to affirmative action program and posting requirements.

    This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of Protected Veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified Protected Veterans and Individuals with Disabilities.
The Equal Opportunity Policy/Affirmative Action Statement is used to inform employees and applicants of the company’s policy of non-discrimination. Your statement should now indicate the top U.S. Executive’s support for the AAP. This statement should be reaffirmed annually, dated, and signed by the top level U.S. Executive of the company. Here are some other things you should know about the EO Statement:
  • It must be physically posted in all company work locations where applicants and employees can view it
  • You may also post it on your Intranet site so remote or telecommuting employees can view it; however, the company must provide computers or ensure in some way employees can access and view the statement
  • Include it in your employee handbook
  • Applicants must also be able to view the statement—we recommend including it on your Careers page so it is one of the first items that applicants see
  • Notify union officials of your policy if you have a Collective Bargaining Agreement and request their cooperation
  • Notify recruitment sources and partners of your policy
The EEO tagline is used in employment advertising, job postings, brochures, and other recruitment items. This tagline has been updated to ensure everyone who sees it understands what the tagline means. Abbreviations such as: M/F/D/V are no longer allowed. The updated tagline shows the company is welcoming and inclusive. Below is a suggestion for the new tagline:
  • [Company Name] is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, or protected Veteran status.
Now that March 24 has passed, here are a few things your company should be doing:
  • Your company should continue to post job openings with the State Employment Service Delivery System (ESDS) as required by VEVRAA. By now you should be aware of the method by which each ESDS wants to receive job postings from your company. This method can vary from state-to-state. If you posted jobs with ESDS since March 24, you should have informed each ESDS your company is a federal contractor and you desire priority referrals of Protected Veterans (PV). In this notification you must supply information about each hiring location, contact information for the person responsible for hiring at each location, and contact information for any third-party vendor you use for recruiting. Make sure there is a process in place to provide updates when this information changes.

  • There are a variety of other administrative and process updates that should have been made. You should have updated websites and electronic and print documents that reference “covered Veterans” to read “Protected Veterans.” The term “other Protected Veterans” has been updated to “active duty wartime or campaign badge Veterans.” You should be using the term “Individual with a Disability” or “worker with a disability” in place of “disabled person.” A process needs to be in place to retain all required records and documents for three years rather than two. You should also be reviewing and responding to requests for reasonable accommodation. Your online application system should now include contact information for job seekers who may require an accommodation to be able to complete the application process.

  • Finally, you should have communicated these changes, and those that are forthcoming, to executives and managers who can provide you with resources in the months to come. Recruiters, hiring managers, and supervisors should now be aware of the accommodation process to follow when an applicant or employee requests assistance or an accommodation because of a disability.
One more word about this transitional period...OFCCP has made it clear in its series of webinars they understand this is a lot of change, and some contractors may have difficulty meeting the deadlines for the changes. Some of the changes require cooperation from technical resources, vendors, and others in the company outside of HR. Document your efforts to comply so it is evident you are moving toward compliance.

There is still much to be done, but you have made it through the first hurdle. During the next few months you should be planning and initiating changes needed for your first AAP following March 24. Berkshire recommends you begin implementing the voluntary self-identification solicitation changes as soon as possible. Research and seek recruitment sources to provide you with qualified Protected Veterans (PV) and Individuals with Disabilities (IWDs). Begin documenting activities and assessing these efforts. And keep checking OFCCP’s website for updates to the Frequently Asked Questions and additional resources posted. On Friday, March 21, OFCCP announced a new outreach and recruitment database to help contractors find qualified IWDs and PV. The Disability and Community Resources Directory can be found on OFCCP’s website here, along with other resources to assist with implementation of these rules at Contractor Resources.

For more information on this transition phase, and what to expect next, please contact a Berkshire Associates’ compliance expert at 800.882.8904. We have a number of resources and tools available to make these changes a bit easier.