50 Shades of Grey. The Complexities of OFCCP Compliance in 2013. Today's
presentation is a discussion including opinions regarding compliance issues and
A Bridge to Tomorrow 75th Annual NHRMA Conference & Tradeshow Presented by
50 Shades of Grey The Complexities of OFCCP Compliance in 2013 Today’s presentation is a discussion including opinions regarding compliance issues and should not be taken as legal advice. For formal legal advice attendees should seek legal counsel.
OutSolve Your Presenters: Patrick Savoy VP Operations Chris Lindholm VP Compliance • Celebrating 15 years of supporting Affirmative Action Planning and Diversity for our clients • Women’s Business Enterprise (WBE) • Serving over 400 companies nationwide • Supporting >100 OFCCP audits annually
Agenda 1. Impact of New Regulations
2. New Federal Contract Compliance Manual 3. Compensation Enforcement 4. Record Keeping and Adverse Impact 5. Audit Preparation
Impact of New Regulations New Definition Disability: From FAQ: How does the ADAAA define “disability?” The ADA Amendments Act of 2008 (ADAAA) and the final regulations define a disability using a three-pronged approach: A physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”) A record of a physical or mental impairment that substantially limited a major life activity (“record of”) When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”). [Section 1630.2(g)]
Impact of New Regulations New Definition Veterans: Disabled veterans Recently separated veterans (3 years) Recipients of Armed Forces service medal
Served in active duty in war or campaign for which campaign badge authorized Under the Final Rule, a “protected veteran” is “a veteran who is protected under the non-discrimination and affirmative action provisions of VEVRAA Contractor Solicitation – new paragraph requiring contractors to state in their job solicitations and ads that they are equal opportunity employers of protected veterans and individuals with disabilities
Impact of New Regulations Transition Examples (Final Rule published in Federal Register in September 2013 and effective March 24, 2014): Annual plan date prior to 180-day implementation period January 1, 2014 – Maintain current structure January 1, 2015 – Implement Part C*
January 1, 2016 – AAP reflect results of new regulations for first time Parts A and B required 3/24/2014
Impact of New Regulations Annual plan date after 180-day implementation period •
April 1, 2014 – Implement new plan requirements*
April 1, 2015 – AAP reflect results of new regulations
April 1, 2016 – Adapt outreach efforts towards reaching goals
• Parts A and B required 3/24/2014
Impact of New Regulations Disability Regulations - Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741 Placement Goal 7% Goal for all job groups (Director can “review”) EEO Categories acceptable if = Job Group 100 or fewer employees = goal is for entire workforce No monetary violations so long as the process is undertaken Sheltered workshops – cannot be used to meet goals
Impact of New Regulations Veterans Benchmark
Just a goal right? – Not exactly
Benchmark equal to annual percentage supplied by OFCCP based on 1)
National % of veterans in the civilian workforce*
Benchmark from BLS and VETS/ETA and factors developed by the contractor
Three (3) year record keeping requirement
Analyze by Job Group? – Acceptable but not required
* Not equal to VEVRAA data
Impact of New Regulations Self-ID Forms (Disability): • Pre-Offer: EEOC approved. Template will be provided (Subpart C) • Post-Offer: Must invite current employees to identify and update every five (5) years with one reminder inbetween • Employers can identify a disability if it is “obvious” or if an accommodation request is made (no guessing)
Impact of New Regulations Self ID Forms (Veterans) Pre-Offer – Solicitation of “Protected Veteran” only Post-Offer – Solicitation of specific category Timing of Pre-Offer – Follows Internet Applicant Rule
Impact of New Regulations EO Clause: Must be incorporated into contracts and subcontracts. Required Text: This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities. This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
New Federal Contract Compliance Manual New FCCM: What is the FCCM?
Contractors should not use more than one method so as to mask underutilization.
Follows Uniform Guidelines End of the 80% and Whole Person era? Do you use two utilization tests? Establishes IRA