It feels like we were just in the starting gate of compliance changes this year, and now the race is fully underway with compliance activities surrounding the revised regulations for Protected Veterans (PV) and Individuals with Disabilities (IWD). Let’s take a look at how the Office of Federal Contract Compliance Programs (OFCCP) is beginning to audit and enforce the new regulations.

Recently I heard a speaker indicate OFCCP is behaving as though the regulations have been in force for some time, when it has only been a little over three months since the implementation date. It is OFCCP’s recommendation that you comply as soon as practicable, however, according to Subpart C, the affirmative action plan (AAP) changes are not required until the beginning of your next AAP cycle. This means from the beginning of the compliance review, OFCCP’s expectations might be that you are fully in compliance with all the changes. Below are a few questions from OFCCP sent recently to a company whose scheduling letter was sent after March 24:

• It has been noted from your 503/VEVRAA AAP that you invite all employees and applicants to identify themselves as Individuals with Disabilities and Veterans. As of 3/24/2014 your company must use the new required OFCCP Self-Identification form wording which can be found on the OFCCP website (www.dol.gov/ofccp).


• How many current employees have self-declared as being disabled?


• It has been noted in your 503/VEVRAA AAP that you use a detailed EEO tagline on job advertisements. Please send a copy of a recent advertisement you have placed for a job opening which shows the Equal Employment Opportunity (EEO) tagline or wording.


• Please send a copy of the EEO wording you use in contracts with your subcontractors and in your company’s purchase orders.

It is important you are well educated about the regulations so you can provide the information necessary to show your company’s compliance. For example, the requirement to use the new Invitation to Self-Identify form for IWDs is contained in Subpart C. The tagline is part of Subpart B, and the Equal Opportunity Clause change in contracts is part of Subpart A—both changes are required as of March 24, 2014. During this transitional year, OFCCP pledges to be understanding about changes that are not complete, as long as contractors can provide documentation of their activities toward full compliance. The regulations can be found on this website Electronic Code of Federal Regulations.

Contractors are busy preparing for full compliance with Subparts A, B, D, E, and Subpart C—the changes to the AAPs. Some of the activities that HR and EEO/AA professionals are engaged in are:

• Communicating with Applicant Tracking (ATS) vendors and internal IT resources:
  
  • To verify the OFCCP IWDs form or exact language is incorporated into the online applicant system
  
  
  • To ensure IWDs and PV status will be captured in the system for applicants at the pre-offer and post-offer stages
  
  
  • To make certain data will be retained in the ATS for the required three-year period
  
  
  • Testing the online application system


• Meeting with Human Resources Information System (HRIS) vendors and internal IT resources:
  • To ensure IWDs and PV status will be captured in the system for employees upon hire
  
  
  • To determine what changes must be made to the new hire process—will ATS data for PV and IWDs status be brought forward, or is it a part of the new hire process to capture this information?
  
  
  • To decide how the HRIS will be updated when the required five-year employee surveys are conducted—will this be a manual update to an employee’s record? Can this be automated? What history is stored when an employee self-identifies as disabled and then later self-identifies as not disabled?


• Reviewing all forms, employee handbook, other publications, websites, etc. for:
  
  • Proper terminology for PV categories and IWDs
  
  
  • Self-ID forms (hard copy or electronic versions) have been created or updated:
    
    • Pre-offer Veterans’ self-ID is for protected status
    
    
    • Post-offer Veterans’ self-ID lists the PV categories
    
    
    • Pre-offer and post-offer self-ID for IWDs uses only the OFCCP’s form or the exact language from their form
  
  
  • Revised EEO tagline that spells out protection for IWDs and PV instead of D/V—Berkshire recommends the tagline also includes minorities and women in place of Male/Female


• Reviewing careers website and/or online application system:
  
  • To determine alternate methods for applicants who are unable to use the online application
  
  
  • Ensuring online application system has contact information (name, phone number, email address, etc.) prominently displayed at the beginning of the process for applicants who require an accommodation to use the system, or must have an alternative method of applying—read more about these accessibility requirements in this Online Applicant Accessibility FAQ
  
  
  • To ensure the company’s EEO/AA policy statement is displayed in print at all company worksites, and it may also be posted electronically for remote workers
  
  
  • Remote employees have internet/intranet access to view the policy statement
  
  
  • The company’s EEO/AA policy statement is displayed or posted where applicants will see it—it is posted in print at all company work sites if applicants will be present and it is posted electronically if applicants visit your website for career/job posting information or to complete an online application
  
  
  • Policy statement is available in an accessible format including Braille, audio, large font, lower height, etc.
  
  
  • Confirming every electronic applicant has the opportunity to view the EEO is the Law poster during the application process, such as by displaying a prominent link to the poster, along with a brief explanation of what the link connects to, as part of their electronic application [OFCCP FAQ Implementation Questions #3]


• Scheduling the first employee survey to ask for self-identification of disability status to be completed by March 23, 2015:
  
  • Reviewing other scheduled HR processes, such as open enrollment and annual performance reviews, to ensure resources are available to conduct the survey
  
  
  • Determining the best method to provide OFCCP’s required form or language to employees, as well as crafting a message to help employees understand why the survey is being taken
  
  
  • Ensuring future self-identification surveys will be conducted at five year intervals
  
  
  • Ensuring the interim notices will be implemented (at least once between survey years) to all employees so that they may identify as an IWD at anytime


• Communicating with purchasing and supply chain partners to verify changes have been made to purchase order and contract language to incorporate the changes to the EEO statement


• Sharing information with company leaders and hiring managers about the changes to the regulations, and the resulting changes in employment processes


• Ensuring the company has a process for handling requests for reasonable accommodation in all aspects of the application and employment process
  • Recruiters and managers know how to respond to such requests
  
  
  • HR representatives have the necessary support and tools to handle requests
  
  
  • Adequate documentation is requested and retained in a confidential file


• Discussing recruitment and outreach activities, and resources with staffing representatives
  
  • Reviewing outreach and recruitment activities and resources
  
  
  • Documenting and tracking all outreach and recruitment activities to evaluate the effectiveness of the efforts


• Sending notification to Union officials of commitment to EEO/AA, and requesting their assistance


• Sending notification to suppliers and vendors who may be covered subcontractors informing them of their potential obligations for affirmative action


• Reviewing the process used to list job openings in an acceptable format with the state Employment Service Delivery System (ESDS) offices where job openings occur—develop communication for the ESDS, which includes contact information for the official responsible for hiring at each location and periodic updates when this information changes


• Establishing the best method for tracking job openings and jobs filled during an AAP cycle—will this be from an ATS or HRIS? Tracked manually or is a report generated?


• Reviewing the definition of an applicant and ensuring consistency in evaluating job seekers for basic qualifications—do you use the definition of an Internet Applicant? For a review of this definition use this link to the Internet Applicant Rule


• Ensuring a periodic review of jobs to verify requirements are current and do not cause unnecessary barriers to employment for IWDs and PV


• Reviewing the process for three-year record retention


• Reviewing contracts and agreements with third-party staffing organizations, temporary agencies, and associations who assist with job listing or recruitment—ensuring all the contractor’s obligations are being met and reporting can be accomplished

The next few years promise to be challenging as we race through the implementation of these revised regulations and the other initiatives proposed by OFCCP. Recently Patricia Shiu told us that Compliance Officers have undergone hundreds of hours of training to prepare for compliance evaluations with the revised regulations. Therefore, contractors need to be as knowledgeable about the regulations as possible. Berkshire has produced a number of webinars aimed at educating you on these regulations. Visit our webpage to view copies of these webinars at no charge using this link: Berkshire Webinars.

OFCCP also has a series of webinars for contractors. You can find copies of these webinars at this link: OFCCP Webinars. Continue to visit OFCCP’s website for additional FAQs.

For more information, please contact Berkshire Associates at 800.882.8904 or email bai@berkshireassociates.com.