OFCCP Updates Its Frequently Asked Questions Regarding the Section 503 and VEVRAA Regulations

The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) issued regulations that became effective on March 24, 2014 governing affirmative action requirements for disabled individuals and protected veterans. On June 24, 2014, OFCCP updated the guidance it provides contractors through its Frequently Ask Questions (FAQs). The update clarifies certain points that contractors have been asking as they prepare, or begin to prepare, their new affirmative action plans (AAPs). The update is a reminder for all covered federal contractors to review the FAQs because they provide substantial assistance in determining how to prepare an AAP and comply with the new regulations.

This advisory will provide an overview of the issues covered by the FAQs, while also addressing the updates related to data collection, voluntary self-identification and meeting the utilization goals and hiring standards.

Copies of the update FAQs can be obtained at: http://www.dol.gov/ofccp/regs/compliance/section503.htm (for disabled individuals) and http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm (for veterans).

Overview of Key Issues Addressed by the FAQs

There was substantial confusion about what covered federal contractors had to do by March 24, 2014. The FAQs reiterate OFCCP's position that covered contractors may delay compliance with the obligations in Part C of the regulations governing AAPs until the date when their AAPs in effect on March 24 expire. However, the FAQs then set forth a comprehensive list of action items that covered contractors should at least be considering now as they get ready to prepare their new AAPs. In addition, all covered contractors should review their new AAPs in light of the guidance set forth in the FAQs.

In addition, the FAQs reiterate that covered contractors "must ensure full compliance with existing requirements." (Emphasis in original). This is an indication that, even if OFCCP may give covered contractors some leeway in developing their new AAPs, they cannot ignore existing requirements.

Notice and Self-Identification Requirements

The FAQs also address a number of questions about how and when to notify applicants and employees of their rights and invite them to self-identify. In this regard, the FAQs provide that the pre-offer notice to self-identification must only be provided to those internet applicants who meet OFCCP's definition of an internet applicant, including meeting the basic qualifications of the position.

The self-identification form can be provided through an electronically fillable form, if it meets certain requirements outlined in the FAQs. In addition, the updated FAQs give employers flexibility to determine the most effective way to invite current employees to self-identify, including doing it through e-mail or an intranet.

The FAQs confirm that where a person self-identifies as disabled or a covered vet during one part of the process (e.g., pre-offer), the contractor can count that person even if she does not self-identify at a later time (e.g., post-offer). Similarly, a contractor can count someone who is known to be disabled or a covered vet, even if they do not self-identify.

The FAQs permit contractors to satisfy their notice posting requirements electronically either by including it in a specific location on the firm's intranet, if applicable, or through e-mail. Contractors can also notify applicants of their rights electronically by having a prominent link to and brief explanation of the requirements as part of the application process.

Finally, the regulations refer to having the EEO poster available in an accessible format. The FAQs state that such formats can be provided when requested or when the contractor knows an applicant cannot read the poster due to a disability.

Favoring Disabled Individuals

The FAQs clarify that contractors do not have to favor a disabled candidate who meets the minimum qualifications over a non-disabled candidate who is more qualified. On the other hand, they also reiterate that it would not constitute reverse discrimination to hire the disabled candidate (as long as the decision is not based on some other protected classification).

Data Collection Requirements

The regulations require covered contractors to collect data on number of openings, jobs filled and people hired. The FAQs clarify that the number of "openings" is based on actual positions, not the number of announcements or job requisitions. So, if a job posting refers to three jobs, there are three openings not one.

The FAQs also clarify that that the difference between jobs "filled" and people "hired" is that jobs "filled" includes all positions filled by whatever matter, not just people hired as part of a competitive process. For example, a person who moves from an apprentice position to a journeyman position after a certain time period would be considered to have "filled" a new position, even though the person was not "hired."

EO Statements

Finally, the FAQs allow contractors to combine the references to the Section 503 and VEVRAA regulations that must be included in covered contracts and provide sample language for contractors to use. In addition, the FAQs provide that in job announcements, advertisements, etc., contractors can used shortened versions of terms, such as "disabled" and "vets."