On August 27, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) released the long awaited final rules increasing protections for veterans under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”) and individuals with disabilities under Section 503 of the Rehabilitation Act of 1973 (“Section 503”). These new rules will require federal contractors to engage in a number of additional affirmative action and other requirements related to the hiring and retention of veterans and individuals with disabilities.
As expected, the final rules deviate little from the rules OFCCP proposed for veterans and individuals with disabilities in 2011. We will be providing additional analyses of these final rules in the coming weeks, but we have provided a brief summary of some of the highlights of the final rules below. Hold on to your hats as OFCCP continues its game-changing year.
Highlights of Changes to the Veterans Regulations
- Hiring Benchmarks: Under VEVRAA, contractors will now be required to set annual hiring benchmarks for protected veterans. Contractors can establish benchmarks either (1) equal to the national percentage of veterans in the civilian labor force, which will be provided by OFCCP annually; or (2) establish their own benchmarks using certain data from the Bureau of Labor Statistics and the Veterans’ Employment and Training Service/Employment and Training Administration that will also be published by OFCCP, as well other factors that are unique to the contractor’s hiring circumstances.
- New Data Collection and Analyses Requirements: Contractors will be required for the first time to “document and update annually several quantitative comparisons” analyzing the number of veterans hired by the contractor. Contractors must maintain this data for at least three years.
- Revised Procedures for Self-Identification: Before these final rules were issued, contractors were required to offer applicants an opportunity to self-identify their veteran status after being offered employment with the contractor. Under the new rules, contractors are now required to offer candidates an opportunity to self-identify as covered veterans both before and after the offer phase in the application process.
- Mandatory Flow-Down Language: OFCCP is now mandating that contractors use specific language to flow down the veteran requirements to covered subcontractors.
- Required Forms: Contractors will now be required to implement certain formats for listing job openings with State or local job services.
Highlight to Changes to the Disability Regulations
- Mandatory Utilization Goal: The final rule for Section 503 mandates contractors set hiring benchmarks for individuals with disabilities. Contractors will be required to establish a nationwide seven percent utilization goal and conduct annual utilization analyses for individuals with disabilities. The goal will apply to each job group in the contractor’s affirmative action plan or, for contractors with 100 or fewer employees, their entire workforce.
- New Data Collection and Analyses Requirements: Similar to the requirements relating veterans, contractors will also for the first time be required to “document and update annually several quantitative comparisons” analyzing the number of individuals with disabilities hired by the contractor. Contractors will also be required to maintain this data for at least three years.
- Revised Procedures for Self-Identification: Prior to the final rules on Section 503, contractors only invited candidates to self-identify their disability status after they were offered employment. The new rules change that requirement to now obligate contractors to offer candidates an opportunity to self-identify as individuals with disabilities both before and after the offer phase in the application process. In addition, contractors must use specific language proscribed by OFCCP and offer employees an opportunity to self-identify as individuals with disabilities every five years.
- Mandatory Flow-Down Language: Contractors will be required to use OFCCP’s specific language to flow down Section 503 requirements to covered subcontractors.
OFCCP Provides Guidance and Training on Final Rules
For both of the final rules, OFCCP has provided webpages with additional information, including the text of the final rules, fact sheets, and frequently asked questions. OFCCP will also be holding webinars explaining the final rules on August 30 and September 18 for Section 503 and on August 29 and September 11 for VEVRAA. You can sign up for these webinars and find the additional information by following these links: Section 503 and VEVRAA.
Effective Date of Final Rules
The final rules are expected to be published in the Federal Register within the next two weeks and will take effect 180 days after publication. This means that contractors will have to implement many of these requirements by the spring of 2014.