December 5, 2013

NEW OFCCP FAQS ON SECTION 503 AND VEVRAA RULES ANSWER—AND RAISE—IMPLEMENTATION QUESTIONS

OFCCP recently posted (http://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm and http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm) additional guidance for contractors regarding the implementation of new final rules describing obligations for affirmative action programs covering individuals with a disability and protected veterans. While this guidance sought to clarify new requirements under the “Data Collection Analysis” sections (41 CFR 60-300.44k and 60-741.44k) of the final rules, it has also introduced new questions about how contractors must compile information to comply.

The “Data Collection Analysis” sections require contractors to document the “total number of job openings and total number of jobs filled,” as well as the numbers of applicants and hires. The new regulations do not differentiate between job openings and requisitions, which has created some confusion among contractors. The updated FAQs state that the total number of job openings refers to the actual number of individual positions that are open. As an example, if a contractor has five positions to fill and only hires four applicants, they would report a total of “5 job openings” and “4 jobs filled.” In the updated FAQs, OFCCP defines jobs filled as “all jobs the company filled by any means, be it through a competitive process or non-competitively, (e.g., through reassignment or merit promotion.)” The contractor will be required to count both new hires and those that were placed in new positions via promotions, transfers and reassignments. There’s one problem: contractors do not currently report transfers and reassignments under their E.O. 11246 AAPs. Small contractors may be able to track this information easily, but large contractors will face a tremendous challenge as they may incur extensive costs in time, money, and resources updating their HRIS systems to track these personnel movements before the regulatory effective date. Finally, contractors will need to allocate additional HR resources to double-check data from HRIS systems to ensure reporting is accurate.

The framework that OFCCP has used in the FAQs also creates some inconsistency in definitions of “openings.” For example, VEVRAA FAQ #1 states: “The total number of job openings refers to the number of individual positions advertised as open in a job vacancy announcement or requisition” (emphasis added). The concept of an advertised job vacancy announcement seemingly comports with the VEVRAA requirement in 41 CFR 60-300.5 to list all employment openings with the appropriate employment service delivery system. However, 60-300.5 also further defines “all employment openings” with the following statements:

i. All employment openings includes all positions except executive and senior management, those positions that will be filled from within the contractor’s organization, and positions lasting three days or less…

iii. Positions that will be filled from within the contractor’s organization means employment openings for which no consideration will be given to persons outside the contractor’s organization (including any affiliates, subsidiaries, and parent companies) and includes any openings which the contractor proposes to fill from regularly established “recall” lists.

In a scenario where a contractor has a position that is filled from within the organization through a non-competitive reassignment, the combination of the regulatory definition and the FAQ guidance would produce the following totals for the “Data Collection Analysis” document:

Number of job openings = 0

Number of jobs filled = 1

Number of applicants hired = 0

Extending the logic and timeframe to a period of up to three years (the record maintenance period required by 60-300.44k), a contractor could conceivably end up with a “Data Collection Analysis” document where the totals appear as follows:

Number of job openings < Number of applicants hired < Number of jobs filled

Given the purpose for the data collection analysis that is stated in the final rule— to evaluate the effectiveness of outreach and recruitment efforts in identifying and recruiting qualified protected veterans (cf. 60-300.44[f][3])—the unanswered question (for both contractors and OFCCP) is whether the numbers from such an evaluation would be interpretable and useful.

OFCCP also provided guidance regarding the EEO tagline contractors will use when announcing a vacancy. The agency stated that contractors may refer to those protected by Section 503 or VEVRAA by abbreviation, but using abbreviations such as “D” or “V” is not adequate. The FAQ instructs contractors that at a minimum they can use “disability” and “vet” so the tagline can be clearly understood by jobseekers. However, these abbreviations may create further confusion. Under section 503 , an “individual with a disability” is defined as a person who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded as having such impairment. Under VEVRAA, protected veterans are defined as (1) disabled veterans, (2) recently separated veterans, (3) active duty wartime or campaign badge veterans and (4) Armed Forces service medal veterans. Obviously these definitions are complex. If contractors use the suggested abbreviations, they may have applicants incorrectly identify as veterans and individuals with disabilities.

by Yesenia Avila, M.P.S., Analyst, and Fred Satterwhite, M.S., Principal Consultant, DCI Consulting Group

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