Category Archives: Veterans

OFCCP Revises the VEVRAA Hiring Benchmark

The Office of Federal Contract Compliance Programs (the “OFCCP”) recently reduced the VEVRAA hiring benchmark for protected veterans from 7.2% to 7.0%. The hiring benchmark is intended to reflect the percentage of veterans in the civilian workforce across the country. The OFCCP reduced the hiring benchmark in response to the 2014 year-end data of the Bureau of Labor Statistics.

Federal contractors and subcontractors opting to use the hiring benchmark for their 2015 affirmative action plans should now use this revised benchmark, regardless of where in the country their establishments are located. Federal contractors and subcontractors may still opt to instead use the OFCCP’s five factor method to develop an individualized hiring benchmark.

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Filed under Affirmative Action Plan (AAP), OFCCP, Office of Federal Contract Compliance Programs, Veterans

OFCCP Publishes New FAQs on the Collection of Self-Identification Information for Protected Veterans

On January 20, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) published two Frequently Asked Questions (“FAQs”) addressing what self-identification information contractors are required to solicit from protected veterans during the post-offer stage of the application process.  Specifically, in light of the new VETS-4212 Form that does not require information on the specific protected veteran categories, OFCCP considered whether, contractors must continue to solicit information about the specific protected veteran category or categories that an applicant falls into during the post-offer stage, or whether contractors can more broadly invite applicants to self-identity as protected veterans.  OFCCP decided that contractors need not collect such category-specific data during the post-offer stage:

[S]ince the new VETS-4212 report no longer requires contractors to provide this information by the individual protected veteran categories, contractors are not required to invite self-identification by category in order to comply with VEVRAA’s post-offer invitation requirement.  Rather, contractors need only invite those offered a job to indicate whether they are protected veterans under any of the VEVRAA categories.

This marks a change from the previous post-offer requirement.  The underlying self-identification requirements come from OFCCP’s current regulations, issued on March 24, 2014, which require contractors to invite applicants to voluntarily self-identify their protected veteran status during both the pre-offer and post-offer stages of the application process.  For the pre-offer stage, contractors are not required to invite applicants to self-identify their specific protected veteran categories.  There is no change to this requirement. At the post offer stage, which includes the period after candidates receive offers of employment but before they began working, contractors were required to invite applicants to self-identify the specific category or categories of protected veteran to which they belong, which includes recently separated veterans, disabled veterans, Armed Forces service medal veterans, and active duty wartime or campaign badge veterans.

Until now, the reason for the category-specific data at the post-offer stage was needed to complete the Veterans Employment and Training Services (“VETS”) VETS-100A Form. However, in September 2014, after OFCCP’s veteran regulations had gone into effect, VETS released a new VETS-4212 Form to replace the VETS-100A form.  Under the new VETS-4212 form, contractors are only required to report aggregate data on the number of protected veterans rather than the specific categories of protected veterans.  On this basis, OFCCP reasoned in the new FAQs that contractors are no longer required to solicit information about the specific categories of protected veterans.

OFCCP, however, stated that contractors may still solicit such information.  In deciding whether to continue soliciting the specific protected veteran categories from applicants at the post-offer stage, contractors should weigh the value of this more detailed information with the burden of the additional recordkeeping and the risk of collecting information that is no longer required by OFCCP.

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Filed under Department of Labor, OFCCP, Office of Federal Contract Compliance Programs, Veterans

OFCCP Publishes New FAQs on Disability and Veteran Rules

The Office of Federal Contract Compliance Programs (“OFCCP”) recently published several new Frequently Asked Questions (“FAQs”) on the newly minted veteran and disability rules to answer lingering questions of contractors, particularly with respect to how to conduct the new data analyses required by these rules.  OFCCP initially published a number of FAQs immediately after the August 27, 2013 release of the final veteran and disability rules.  Since then, it has periodically updated those FAQs to provide guidance to contractors on how to comply with and implement the new rules.  The most recent installments to the FAQs provide some important guidance to contractors.

Counting Veterans Self-Identification

Background on FAQ

The new veteran rules now require contractors to offer applicants an opportunity to identify themselves as protected veterans at both the pre and post-offer stages.  Contractors must use applicant responses to determine whether they have met their annual hiring benchmarks for veterans.  Contractors can establish their hiring benchmarks either by using the national percentage established by OFCCP (currently 8%) or creating their own hiring benchmark using certain criteria identified by OFCCP.

New FAQ

Contractors have been unsure whether they can count an applicant towards the veteran hiring benchmark in situations where the applicant identifies himself as a protected veteran during the pre-offer stage but does not self-identify as a veteran during the post-offer stage.  OFCCP noted in the following FAQ that contractors can count those applicants towards the annual benchmark.  We agree that contractors should be able to assume that applicants correctly identified themselves at the pre-offer stage.

If an individual self-identifies as a protected veteran at the pre-offer stage of the application process, but does not self-identify again at the post-offer stage, may a contractor still count the individual as a protected veteran for purposes of applying the hiring benchmark and performing the required data collection analysis?

Section 60-300.42 of the new VEVRAA regulations requires contractors to invite applicants to self-identify as “protected veterans” at both the pre-offer and post-offer stages of the application process. If an applicant self-identifies as a “protected veteran” at the pre-offer stage but not at the post-offer stage, the contractor may identify the new hire as a “protected veteran” for purposes of compliance with the new VEVRAA regulations.

Jobs Filled

Background on FAQ

The new veteran and disability rules require contractors to conduct various data analyses during their annual affirmative action plan cycles analyzing, among other items, the total number of jobs filled and the total number of job openings.  There has been some confusion on what “jobs filled” means and how that differs from people hired.  OFCCP previously explained that “jobs filled” refers to “all jobs the company filled by any means” including competitive (i.e., hiring) and non-competitive selections (i.e., merit promotions, transfers, and reassignments).

New FAQ

There have been some lingering questions about whether transfers within the same position or automatic promotions would qualify as “jobs filled”.  OFCCP clarified in the following FAQ that jobs filled only included movements into different positions.

Does the number of “jobs filled” include step or ladder movements that are automatically attained upon completion of a stated event, such as time in the job or attainment of a particular certification?

Both competitive and non-competitive movements may qualify as “jobs filled,” so long as the movement is one into a different position, rather than simply a movement within the same position. This will necessarily be a fact-based determination. So, for example, a time-driven salary increase from one “step” to the next within the same position would not be a “job filled,” since there was not any movement into a new position. By contrast, if an apprentice completes a certification program and moves into a journeyman position, then such movement would be a “job filled,” since it is a movement from one position to another.

Hiring Benchmark for Veterans

Background on FAQ

As explained above, the new veteran rules require contractors to create annual hiring benchmarks whereby contractors assess their hiring of veterans in the year preceding their affirmative action plan to determine if they are meeting certain targets.

New FAQ

Many contractors have wondered how the term “hires” would be interpreted and whether it would include promotions.  In the following FAQ, OFCCP affirmed that both internal and external competitive hires would be counted in the annual analyses.

When applying the hiring benchmark, should contractors use the same definition of “hires” that is used for purposes of the data collection analysis required by 60-300.44(k)?

Yes. Since neither the new regulations, nor its preamble, specify a different definition of “hires” for the VEVRAA hiring benchmark, contractors should use the definition of hires that is applicable to the data collection analysis obligation. That definition encompasses those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions. This will ensure consistency in the interpretations of these key provisions of the new regulations.

Self-Identification of Disability

Background on FAQ

Under the new disability rules, contractors are required to invite their current employees to self-identify as individuals with disabilities.  This must be done once between March 24, 2014 and March 24, 2015 and then once every five years after that.

New FAQ

Many contractors have employees complete information through company portals and intranets, so contractors have naturally wondered whether they can provide the self-identification form to employees in that manner.  OFCCP found in the following FAQ that using such a process was acceptable.

May a contractor fulfill its obligation to invite its current employees to self-identify as having a disability by asking them to sign into an employee portal on the company Intranet?

The Section 503 regulations do not prescribe a particular method that contractors must use to invite its employees to self-identify. Contractors therefore have the flexibility to choose any method or methods that are reasonable and likely to be effective, given its particular circumstances. For example, contractors may choose to inform employees that it is inviting their self-identification in the same manner it uses to disseminate other important workplace notices to its employees. This might be emailing the notice of the survey and the self-identification form, or an Intranet link to the form, to all employees, or it might be prominently posting a notice with a link to the self-identification form on the company Intranet, prominently posting a notice and copies of the form in the employee lounge, or distributing a notice and copies of the form where employees go to sign in or pick up their paycheck.

Utilization Analysis for Disabled

Background on FAQ

On the next affirmative action plan after March 24, 2014, contractors must conduct a utilization analysis to determine the whether 7% of each job group (or for the entire workforce if the contractor has less than 100 employees) is comprised of individuals with disabilities.

New FAQ            

Some contractors have wondered whether they may be able to exclude employees from this analysis if they do not respond to the invitation to identify their disabled status.  Not surprisingly, OFCCP indicated in the following FAQ that employees who did not respond should be counted in the analysis as nondisabled individuals unless the contractor has actual knowledge that those employees are disabled.

How should non-responses to the invitation to self-identify as an individual with a disability be treated when conducting the utilization analysis?

The regulations require contractors to conduct an annual utilization analysis to determine the representation of people with disabilities in each job group, or if it has 100 or fewer employees, in its workforce as a whole. To calculate the percentage of a job group (or workforce) that is comprised of people with disabilities contractors should use the same methodology used to calculate the percentage of a job group (or workforce) that is comprised of any other specific demographic group. Specifically, contractors should compare the number of individuals identified as having a disability to the total number of employees in the job group. Non-responses should be counted solely in the job group (or workforce) total, unless the contractor has actual knowledge that a particular non-responsive individual(s) has a disability. The contractor may count as an individual with a disability any individual who it actually knows to have a disability, whether or not the individual chose to self-identify.

Hiring of Disabled Candidates

In large part due to OFCCP’s repeated emphasis that contractors must take affirmative action to hire and promote individuals with disabilities in accordance with the new disability rules, contractors have wondered whether they could reject disabled candidates who met the basic or minimum qualifications for the position but were not the best candidates.  Although OFCCP correctly stated that contractors are only to hire the best qualified candidates for the position, in the following FAQ they underscored the importance of contractors having adequate and proper documentation to show why they selected a certain candidate over a minimally qualified individual with a disability.

Under the new regulations, must a contractor hire an individual with a disability who is not the best qualified but who meets the minimum requirements of the job for the purposes of affirmative action?

No. The Section 503 regulations do not require contractors to hire an individual who is not qualified for the position being sought. Nor do they require contractors to hire a less qualified candidate instead of the best qualified candidate for the purposes of affirmative action. However, it would not violate Section 503 for a contractor to select a person with a disability over a candidate without a disability who was equally or better qualified, so long as that selection was not based on a prohibited factor such as race, gender or ethnicity.

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Filed under Affirmative Action Plan (AAP), Disability Discrimination and Accommodation, OFCCP, Veterans

OFCCP’s Final Rules for Veterans and Disabled Become Effective

On March 24, 2014, the Office of Federal Contract Compliance Programs’ (“OFCCP’s”) final rules for individuals with disabilities under Section 503 of the Rehabilitation Act and for veterans under the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) went into effect. There are two effective dates under the final rules:

  • The requirements that are not specific to affirmative action plans must be implemented by March 24, 2014; and
  • The affirmative action plan requirements under Subpart C in the final rules must be in place by the contractor’s next affirmative action plan cycle following March 24, 2014.  This means, if a contractor’s affirmative action plan begins on January 1 every year, the contractor would not have to implement the affirmative action plan requirements until January 1, 2015.

Our previous alert on these new rules explains in detail the requirements flowing from these rules and the timing of those changes.

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OFCCP Unveils Its Game-Changing Final Rules for Veterans and Individuals with Disabilities

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.

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Filed under Affirmative Action Plan (AAP), Department of Labor, Disability Discrimination and Accommodation, OFCCP, Veterans

OFCCP Moves Closer to Finalizing Game-Changing Regulations for Individuals with Disabilities and Veterans

On July 31, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) submitted to the Office of Management and Budget (“OMB”) for approval its final regulations for individuals with disabilities under Section 503 of the Rehabilitation Act.  This comes on the heels of OFCCP submitting the final regulations for covered veterans under the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”) to OMB on Tuesday.  OMB will have sixty (60) days to approve or reject these final regulations.

As we previously reported, if passed in their final form, these regulations will usher in game-changing requirements for federal contractors and subcontractors subject to OFCCP’s jurisdiction.  In April 2011, OFCCP released its proposed changes to VEVRAA.  Under OFCCP’s proposed changes, contractors would be required to engage in a number of additional recordkeeping and other obligations designed to increase protections for covered veterans.  See our prior post for a complete list of the proposed changes under VEVRAA.

In December 2012, OFCCP also released proposed changes to Section 503 of the Rehabilitation Act.  The proposed rules contemplate requiring contractors to undertake a number of additional affirmative action obligations for individuals with disabilities, including establishing a seven percent goal in each job group at the contractors’ establishments for disabled individuals. The complete details concerning the proposed changes to Section 503 can be found here

Now that the new Department of Labor Secretary Perez has finally been confirmed, OFCCP will move very quickly to put these and other backlogged items on its regulatory agenda into action.   We will continue to monitor these developments and inform you of any further changes.

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Filed under Affirmative Action Plan (AAP), Department of Labor, Disability Discrimination and Accommodation, OFCCP, Veterans

OFCCP Unveils Its 2013 Regulatory Agenda

On December 21, 2012, the Office of Federal Contract Compliance Programs (“OFCCP”) unveiled its 2013 Unified Agenda of Regulatory and Deregulatory Actions (“Unified Agenda”) on the Office of Management and Budget’s (“OMB’s”) website.  In the first-term of the Obama Administration, OFCCP proposed a number of regulatory changes, including significant changes to Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”) that contemplated requiring contractors to undertake additional affirmative action obligations for individuals with disabilities and covered veterans.  In 2012, many of these regulatory initiatives were put on hold in light of the presidential election. Now that President Obama has won reelection, the OFCCP intends to aggressively pursue its regulatory agenda once again.

According to the Unified Agenda, OFCCP is planning to implement or propose several major regulatory initiatives in 2013:

Final Rules on Section 503 of the Rehabilitation Act:  In December 2012, OFCCP released its proposed rules for Section 503 of the Rehabilitation Act.  The proposed rules contemplated requiring contractors to undertake a number of additional affirmative action obligations for individuals with disabilities, including establishing a seven percent goal in each job group at the contractors’ establishments for disabled individuals. See our prior post for the details of OFCCP’s proposed changes to Section 503.  OFCCP indicated in its Unified Agenda that it plans to release final rules on Section 503 in April 2013.

Final Rules on VEVRAA:  In April 2011, OFCCP released its proposed rules for VEVRAA. Similar to Section 503, the proposed changes to VEVRAA would require contractors to engage in various recordkeeping and other obligations designed to increase protections for covered veterans.  See our prior post for more information on OFCCP’s proposed changes to VEVRAA.  Through its Unified Agenda, OFCCP has indicated that it plans to release the final rule on VEVRAA in April 2013.

Proposed Rule on the Compensation Data Collection Tool:  In August 2011, OFCCP released an Advanced Notice of Proposed Rulemaking to solicit input on a compensation tool that OFCCP could use to analyze contractors’ compensation practices.  In August 2012, the National Academy of Sciences (“NAS”) lambasted OFCCP for failing to articulate adequately how it would analyze compensation data and urged the agency not to move forward with increased data collection requirements until it addressed some of the current deficiencies.  Despite these recommendations, OFCCP plans to unveil its new compensation data collection tool through a Notice of Proposed Rulemaking (“NPRM”) in June 2013.

Proposed Changes to the Sex Discrimination Guidelines:  OFCCP intends to issue proposed rules on its Sex Discrimination Guidelines by August 2013.  OFCCP has indicated that the Sex Discrimination Guidelines “have not been updated in more than 30 years and warrants a regulatory lookback.”  OFCCP plans to “create sex discrimination regulations that reflect the current state of the law in this area” and reflect the increased “participation in the labor force” of women.

Proposed Regulations for Construction Contractors:  OFCCP plans to issue proposed rules revising the regulations governing federal constructions contractors by October 2013.  OFCCP has stated that these rules would “enhance the effectiveness of the affirmative action programs of . . . construction contractors” by removing “outdated goals” and giving “contractors increased flexibility to assess their workforce to determine whether disparities in the utilization of women or the utilization of a particular racial or ethnic group in an on-site construction job group exists.”

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Filed under Affirmative Action Plan (AAP), Compensation, Department of Labor, Disability Discrimination and Accommodation, Discrimination, OFCCP, Veterans