Not Just New But Improved: OFCCP’s Expectations for the New Regulations

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What a difference a year makes! This time last year, there was some concern and anxiety in the contractor community about the impact of proposed new Section 503 and VEVRAA regulations. Although there are still concerns out there, we noticed a positive change in the air about the regulations at this year’s National Industry Liaison Group (NILG) annual conference. Yes there are still some issues to work through and we acknowledge that at OFCCP. Yet at the same time, we witnessed many great ideas emerge at the NILG conference.

There was quite a bit of buzz around “making the business case” and “best practices” to meet the spirit of the new regulations and foster inclusive workforces that are welcoming to people with disabilities. This was rewarding to see because it shows that the culture change these regulations sought to promote has already begun. The talk at the conference about effective ways to recruit people with disabilities and veterans shows that the new metrics to set a 7% utilization goal (not quota) for people with disabilities and a veteran hiring benchmark have proven the old adage that “what gets measured, gets done.” As both regulations approach the one-year anniversary, the landscape is becoming clearer for federal contractors to understand how to comply with these new laws.

How fitting it was at this year’s ILG conference as we collectively celebrated 50 years since the passing of the landmark civil rights legislation that so many best practices emerged for recruitment and retention of people with disabilities and protected veterans! Let’s take a look back over the past year since the regulations were finalized on September 24, 2013 through the best practices shared at this year’s conference.

The Requirements
The Section 503 and VEVRAA regulations were implemented on March 24, 2014. For the first time contractors have specific guidance in measuring their compliance efforts: the utilization goals under Section 503 and the hiring benchmarks for VEVRAA. There are new data collection requirements in 60-300.44k and 60-741.44k. We heard concerns and questions at the NILG conference on the “numbers.” OFCCP is listening and updating the FAQs on these items. But the intent of the regulations is clear: to improve the hiring opportunities for individuals with disabilities and protected veterans. These two groups are extremely underrepresented and underutilized in the workforce today with unemployment rates double that of the same group without disabilities and two percentage points higher than non-veterans.

The objective should not be to slide under the radar or make your numbers good enough to avoid detection. That is not the purpose of the regulations. Remember, it is not a violation if a contractor does not reach the goals and/or hiring benchmarks. Rather, it is a violation not to try.

The requirement at 60-300.5(a)2 to list all employment openings with the employment service delivery system (ESDS) has not changed. What has changed is that, in order to satisfy the listing requirement, contractors must provide information about the job vacancy in any manner and format permitted by ESDS. This helps the ESDS to provide timely priority referrals of protected veterans. Another new requirement is that contractors provide the name and location of the hiring official. However, if contractors are using third parties to list their job openings, they must provide the contact information for that third party service provider. The goal of these specific requirements is to reasonably ensure that information about jobs openings is made available as quickly as possible and that the information is accurate.

Also new is the requirement for a pre-offer invitation to voluntarily self-identify as an individual with a disability or a protected veteran. OFCCP understands that applicants might not disclose a disability at the pre-offer stage and may instead wait and disclose their disability at post-offer or later during employment. OFCCP also realizes that an individual who does not now have a disability may later become disabled. The hope is to change workplace attitudes so that future applicants and employees feel comfortable disclosing throughout the selection and employment process. This is reinforced at 60-741.42(c) which requires the periodic survey of employees. This too will require a culture change in the workforce, and proactive federal contractors will use this tool to foster a more inclusive work environment.

Under the new regulations, federal contractors are required to undertake appropriate outreach and positive recruitment activities. The amount of outreach is based on the contractor’s size and resources and the extent to which existing practices are adequate to recruit and place individuals with disabilities and protected veterans. This is nothing new. What is new is that federal contractors are required to document and evaluate the effectiveness of their outreach and positive recruitment efforts. The important thing here is to make changes if what you are doing is not achieving the desired results.

The data collection requirement at 60-300.44(k) and 60-741.44(k) is new. The lack of data made it impossible for a contractor to evaluate the availability of individuals with disabilities and protected veterans. The requirements at 44(k) were designed to assist contractors in evaluating their outreach and recruitment efforts and make changes where necessary.

Best Practices
Federal contractors, attorneys, consultants and government officials gathered at the annual NILG conference in August to share tips for compliance and best practices to be at the forefront of hiring and retaining people with disabilities and protected veterans. At one session, members of the St. Louis ILG talked about “reverse career fairs” where federal contractors meet and greet with community based organizations. These fairs allow contractors to meet one-on-one with various organizations and target their recruiting efforts with organizations likely to have qualified candidates to refer for jobs. One presenter at the conference suggested that forming a few meaningful relationships with disability and veteran referral organizations would be much more productive than sending out 100 letters to organizations you don’t know and telling them you’re an EEO employer. One practical suggestion mentioned for effective outreach was to contact the local veteran representative of the state workforce agency and the business representative at the state vocational rehabilitation agency and invite them out to your facility to gain an understanding of the types of jobs you have, the skills and abilities necessary and your company’s culture. If you participate in a “reverse job fair” like the one hosted by St. Louis ILG, follow up and invite the organizations that are a good fit for your recruiting needs to visit your facility. We also encourage contractors to reach out to local college and university internship programs, especially those servicing women, students of color, and students with disabilities. Internships are a great way to identify, cultivate, and attract talented students to your company. The use of affinity groups continues to be a reliable tool for retaining and mentoring workers of diverse backgrounds.

This year’s conference had several good ideas and useful information on how to create inclusive work environments and foster disclosure of disabilities. Several presenters commented on using affinity and employee resource groups (ERS) to get input and ideas on policies and procedures that may impact people with disabilities. There is a good bit of research out there to help you navigate through effective ways to promote inclusion. One study by Cornell University, IRL School, Employment and Disability Institute assessed important factors that people with disabilities consider before disclosing a disability to their employer.1 According to the study, the two most important factors were a need for an accommodation and a supportive supervisor relationship. This should clearly signal why it’s so important to target training of front line managers and supervisors.

Next in line were a disability-friendly workplace and an active disability recruiting plan. On the other side of the coin, the top reasons an employee with a disability decided NOT to disclose a disability was risk of being fired/not hired and concern the employer may focus on the disability. Knowing this gives employers the information needed to develop effective training for front line managers and supervisors as well as human resources personnel to create an inclusive environment. If you have a disability ERS group, consider sharing this type of information with them and utilizing their skills to develop training that promotes inclusion at your company.

One of the common fears we’ve heard from employers is that creating an inclusive environment may generate more accommodation requests that are too costly. However, the research data shows this is not true and it’s one of the biggest myths out there. The Job Accommodation Network (JAN), which is a service of the Office of Disability Employment Policy (ODEP) within the U.S. Department of Labor, conducted a study between 2004 and 2013 in partnership with the University of Iowa and West Virginia University.2 This survey interviewed nearly 2,000 employers in a wide array of industries and found that almost 60% of accommodations provided cost nothing and of the remaining accommodations cost on average about $500. This should reassure employers that doing the right thing (and complying with the law) will not break the bank. As ODEP’s Director Kathy Martinez said while speaking at the conference, “at some point we have to stop talking about doing something and get to the business of doing it.” The best practices discussed at the conference and available research data give federal contractors the road map, information and tools to do just that.

Finally, during OFCCP leadership’s plenary session at the conference, several participants raised concerns about the new regulations. Although OFCCP may not agree with all suggestions and feedback we receive from federal contractor representatives, this type of active listening shows contractors what they can expect from the agency. Keep an eye on the Frequently Asked Questions on OFCCP’s Section 503 and VEVRAA landing pages for upcoming guidance on how to document compliance with the OMB approved form and other hot topics!

Remember, for up-to-date information, resources and answers to frequently asked questions, bookmark the following links:

Section 503 Final Rule: http://www.dol.gov/ofccp/503rule

VEVRAA Final Rule: http://www.dol.gov/ofccp/vevraarule

1. von Schrader, S., Malzer, V., Erickson, W., & Bruyère , S. (2011). Emerging employment issues for people with disabilities: Disability disclosure, leave as a reasonable accommodation, use of job applicant screeners. Report of a Cornell/AAPD Survey. Ithaca, NY: Cornell University Employment and Disability Institute. http://digitalcommons.ilr.cornell.edu/edicollect/1288/
2. Job Accommodation Network, Accommodation and Compliance Series, Workplace Accommodations: Low Cost, High Impact, annually updated research findings address the costs and benefits of job accommodations, updated 09/01/13. http://askjan.org/media/lowcosthighimpact.html