March 24th is Approaching: Complying With the New OFCCP Regulations

BY: LYNN F. JACOB, SARA B. RAFAL AND LAURA D. WINDSOR

Last year, the Office of Federal Contract Compliance Programs (“OFCCP”) issued new regulations implementing Section 503 of the Rehabilitation Act, as amended (“Section 503”), and the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (“VEVRA”). They become effective on March 24, 2014. 

Contractors, subcontractors and federal depositories of money (i.e. banks) (collectively “Contractors”) with affirmative action plan years that start before March 24, 2014 do not need to change their current affirmative action plan documents until the start of their next plan year.  Contractors with plan years that start after March 24, 2014 will need to change their affirmative action plans for the disabled and veterans for the new plan year.  This will include incorporating new verbiage and establishing benchmarks for hiring protected veterans and utilization goals for individuals with disabilities.  So, if a Contractor has affirmative action plans that run from January 1 to December 31, the Contractor needs to change its January 1, 2015 plans for protected veterans and the disabled.  If a Contractor is on an April 1 to March 31 plan year, it must implement the new plan regulations for its April 1, 2014 plans.

Irrespective of a Contractor’s affirmative action plan year, numerous non-plan requirements related to the disabled and protected veterans apply to all Contractors as of March 24, 2014. Starting on March 24, 2014, all Contractors are expected to:

• Make current plans for the disabled and veterans available to all employees and applicants upon their request.
• Add the new EEO language in new federal contracts and subcontracts and existing contracts that are renewed, modified or extended.
• Change the language on annual vendor letters.
• Change the tag language on recruiting advertisements and internal job postings to include the new EEO policy statement language (“EEO Employer/Protected Veteran/Disabled.”)
• Provide to the state employment agency the contact information of a hiring official for the facility at which the applicants will be placed and change the language on the job listing forms provided to the agency to indicate federal contractor status and request priority referrals of protected veterans.
• Begin using the new pre-offer Invitations to Self-Identify for all persons applying for positions and begin using the post-offer Invitations for anyone receiving an offer of employment.
• To the extent that applicants self-identify as being disabled or a protected veteran, track this information on a revised applicant flow record.
• Survey current employees regarding disability or protected veteran status and calendar another survey for 2019.
• Maintain records of the results of the survey.
• To the extent that anyone requests an accommodation, keep a record of the request and the response to the request.
• Begin retaining records reflecting positions for which protected veterans or individuals with disabilities apply  and whether they got the position they sought.
• Calendar for 2016 the sending of an interim reminder to current employees that they may voluntarily update their disability or protected veteran status.
• Obtain specific training for those involved in hiring, promotions and/or terminations.
• Review current job descriptions.
• Review training programs available to employees.
• Update written record retention policies to assure compliance with the new two and three year maintenance requirements.

Contractors whose plan years start before March 24, 2014 are not required to go back and amend their 2013 plans. However they should prepare for the new benchmarks and utilization goals that they will be required to adopt in the coming months by contacting disability and veteran groups to assist with their recruitment efforts. They should also begin communicating about career aspirations with current employees with known disabilities and discussing barriers to achieving such aspirations and the manner, if any, in which the Contractor can assist. All companies should prepare to implement the non-plan requirements on March 24, 2014.