Many contractors have been preparing for the past several months for the first group of compliance obligations imposed by the Final Rules adopted by OFCCP in August 2013.  In five short days, the first set of obligations will become effective.  Is your organization ready to implement the first set of compliance obligations?  Does it have its “ducks in a row” to implement the second set by the start of your next AAP cycle?

Contractors have an obligation to implement by March 24 all of the compliance obligations imposed by the Final Rule, other than those set forth in Subpart C.  Subpart C includes the Affirmative Action Program requirements of the regulations, including the invitations to self-identify, the contents of the affirmative action policy and programs, and utilization goals and benchmarks.  Contractors do not have an obligation to implement the Subpart C requirements until their next AAP cycle after March 24.  Thus, if you have a plan starting on January 1, you will not need to comply with these requirements until January 1, 2015.

There had been some debate in the contractor community regarding whether the voluntary disclosure obligations, which are mentioned in other Subparts of the Final Rule had to be implemented on March 24.  OFCCP recently clarified that, although it “strongly encourages” contractors to seek the voluntary disclosure information required by the new regulations starting on March 24, it will not require contractors to collect this information until their next AAP cycle after March 24.  Because we anticipate a lot of confusion on this issue among compliance officers, we recommend that contractors print out and retain the current version of OFCCP’s FAQs, which includes this clarification.

With respect to the non-Subpart C requirements, contractors will be expected to have the following new requirements in place by March 24:

  • Modifications to the company’s AA/EEO policy;
  • Modifications to posting requirements;
  • Notice of applicant rights in the company’s on-line application;
  • Updated EO clauses in contracts and purchase orders (and amendments and extensions) issued after the effective date;
  • Updated notices and procedures for state job postings;
  • Notices to unions, referral sources and subcontractors of EO/AA obligations; and
  • Modifications to the tag line in job postings and advertisements.

A number of the obligations that go into effect next week involve notifying applicants and third parties of contractors’ status as a federal government contractor and their (and subcontractors) equal employment and affirmative action obligations.  The following summarizes the notification obligations for third parties:

  1. Applicants

If you accept walk-in applicants or conduct in-person interviews, the “EEO is the Law” poster must be conspicuously posted and provided in a form that is accessible and understandable to applicants with disabilities.  Similarly, your online application system must include the “EEO is the Law” poster in a form that is accessible to individuals with disabilities.  Typically, access would be provided by (1) posting an explanation of the contractor’s EO policy followed by a hyperlink and (2) posting a 1-800 number or email address applicants can use if they have difficulty accessing it or the on-line system.  Many contractors are satisfying these requirements by including this posting and link on the landing page of their careers web site.  In addition, you must include disability and veteran status in your EEO tag line on all postings and advertisements.  Although you may use the abbreviations “disability” and “VET,” you may not use “v” or “d.”

  1. Unions

Contractors with collective bargaining agreements must notify union officials and/or employee representatives of their affirmative action policy and request their cooperation.

  1. Subcontractors

Contractors must provide written notification to all subcontractors of their policies concerning equal employment and affirmative action and request their cooperation.  Contractors are also required to incorporate by reference the EO clauses in all covered contracts and subcontracts (and modifications, renewals and extensions).  In addition, mandatory language must be included verbatim, in bold text, in covered contracts and subcontracts.  We recommend that contractors adopt the combined language recommended by OFCCP in its amended FAQs:

This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.

  1. State Employment Service Delivery Systems (“ESDS”)

Under current VEVRAA regulations, contractors must list job openings with the ESDS in the state(s) where the position will be sourced.  The Final Rules impose several new ESDS job listing requirements.  First, the postings must be provided in the manner and format required or permitted by the particular ESDS.  Second, contractors must advise the ESDS in each state where it has a hiring location:

  • That it is a federal government contractor;
  • The contact information for the hiring official and location for all hiring locations in the state;
  • The contract information for third party recruiting vendors; and
  • That it is seeking priority referrals for protected veterans at all locations within the state.

OFCCP clarified that simply stating “VEVRAA Federal Contractor” on job listings would satisfy the first requirement.  With respect to the second requirement, the contractor is required to identify the “chief hiring official, a human resources contact or any other manager for the contractor that can verify the information” in job postings.  It is unclear whether OFCCP expects this information to be included in a periodic letter or other communication to the ESDS or on each job posting.  Many contractors are planning to include the information (other than information regarding vendors) in both the annual communication and individual job listings.

Many contractors comply with their ESDS posting requirements through vendors.  However, because such a vendor acts as the contractor’s agent, OFCCP will consider mistakes and violations of the vendor to be violations by the contractor.  It is critical that contractors coordinate with their vendors to confirm that they are complying with these new notification and posting obligations.  Contractors should also consider requiring vendors to provide periodic evidence, such as reports and copies of notices, that they are posting and providing notifications consistent with the new regulations.  Also, like the OFCCP, contractors should periodically check the ESDS sites where their positions should be posted to confirm that they are properly posted.

Proskauer has developed comprehensive checklists and templates to help contractors comply with the array of new compliance obligations imposed by the Final Rules.  If you need compliance assistance, please contact one of the Proskauer attorneys listing on this blog.  In addition, for additional information regarding the new Final Rules, you can listen to our recent Webinar here, or review our Compliance Alert here.