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Posts Tagged ‘Section 503’

Getting Started with PRM – New Member Benefit from DirectEmployers to Assist with OFCCP Compliance

Thursday, April 10th, 2014

The new OFCCP regulations that went into effect March 24, 2014 for VEVRAA and Section 503 require federal contractors to build meaningful relationships with diversity, disability, veteran, women and other minority organizations. This also means recording communications and exchanges with those partners and demonstrating outreach effectiveness.

PRM

Dee Anne Faller and Jason Sole showing Members the PRM during DEAM14.

DirectEmployers Association designed a new tool to help Members streamline this process by providing a single location to enter, access and store this data, regardless of their device or location. This new tool, called Partner Relationship Manager (PRM), was officially unveiled recently at the DirectEmployers 2014 Annual Meeting & Conference.

The PRM is included with DirectEmployers Association membership, which means our Members don’t need to purchase or maintain additional services to assist them with tracking outreach efforts. This tool will help Members by:

  • Easily working with national and local partners from within a single tool.
  • Simplify maintaining partner contacts and tracking outreach efforts.
  • Providing an economical alternative to other tools.
  • Recording details regarding hiring activity from a partner organization or contact within a partner organization.
  • Running reports that capture the outreach efforts and their effectiveness – from one platform.

Over the next several months we will roll out tutorials, a user guide and schedule training sessions. To get started with PRM, please follow these two steps:

  1. Create an account on My.jobs at: https://secure.my.jobs/
  2. Email or call your Membership Development Representative to request activation of the employer functionality of your My.jobs account – if you’re not sure who your point of contact is, please email PRM@DirectEmployers.org

Members can view the DEAM14 presentation about PRM on Pipeline. We also set up a PRM forum for Members to post feedback or additional questions. Please don’t hesitate to post there or contact your Membership Development representative.

DEAM14 Brings Knowledge, Networking and Actionable Information

Wednesday, April 9th, 2014

The Veterans Connect Career Fair and DirectEmployers 2014 Annual Meeting & Conference (DEAM14) took place March 25-27 at the Hyatt Regency Crystal City. Both events were a huge success and DEAM14 had record-breaking attendance!

We’ll be sharing all of the great information and best practices from the conference over the next few weeks, so stay tuned. In the meantime, check out our recap video for DEAM14 highlights and to hear what some attendees had to say about the event:

View more event highlights from our DEAM14 photos on Flickr. Registration is open now for DEAM15, taking place May 13-15, 2015. Learn more at: http://DEAM15.DirectEmployers.org.

A New Way to Recruit College and Graduate Students with Disabilities

Thursday, March 20th, 2014

The following press release was authored by the Employer Assistance and Resource Network (EARN) and was originally posted on March 20, 2014.

Private-sector employers can now use WRP.jobs, a no-cost online job board, to find pre-screened college students and recent graduates with disabilities looking for internships and permanent positions.

Employers can post single jobs or elect to connect all appropriate college-level job vacancies to WRP.jobs. Workforce Recruitment Program (WRP) candidates looking for entry-level, career-track positions or professional internship opportunities can view and apply for positions. Candidates represent all majors and include graduate and law students, as well as veterans. WRP.jobs directs applicants to employers’ career pages and applicant tracking systems.

The WRP is a government-wide program co-sponsored by the Department of Defense and the Department of Labor to increase employment of people with disabilities in the federal workforce by providing a pipeline of qualified and highly motivated candidates. Each year, trained WRP recruiters from federal agencies interview college students and recent graduates with disabilities who are looking for internships and permanent positions. Qualified candidates are added to the WRP database, which has been shared with WRP.jobs.

The WRP.jobs portal for non-federal employers is a pilot project developed through an innovative partnership between EARN and DirectEmployers Association.

To access WRP.jobs, employers can visit www.AskEARN.org and click “Request WRP Candidates” to register.

For more information or to post jobs, visit http://askearn.org/#refdesk/Recruitment/WRP.

OFCCP Welcomes DirectEmployers Association & Helps Dispel Misinformation Surrounding Revisions to VEVRAA and Section 503

Tuesday, March 18th, 2014

DirectEmployers Association had the unique opportunity to work with key personnel in the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to conduct a listening session exclusively for Members. Moderated by employment law expert John C. Fox, senior partner at Fox, Wang & Morgan, P.C., this session featured the OFCCP’s Patricia Shiu, Director; Debra Carr, Director, Division of Policy, Planning and Program Development; and Naomi Levin, Branch Chief for Policy Development and Procedures, Division of Policy, Planning and Program Development.

John C. Fox, Tom Eckhart, me and Candee Chambers meeting up at the OFCCP prior to the listening session.

Since the majority of the almost 700 Member companiesof DirectEmployers Association are federal contractors, it only makes sense to work closely with the OFCCP. The goal for this session was to help dispel any misinformation that surrounds the OFCCP’s revisions to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973 – which is significant for federal contractors so they can adjust their individual compliance strategies before the implementation date of March 24, 2014.

DirectEmployers Association, as well as several of our Member company representatives, received an incredible welcome at the OFCCP in Washington D.C. I had the privilege of attending in person, and was truly honored when we walked in the door to see a professionally printed welcome sign in the Department of Labor’s lobby, outside the door of the meeting room AND in the meeting room. (Thank you to Bernard for these signs and the warm welcome!)

About 10 of our Member companies were represented in person including Hilton, KPMG, Sodexo, Marriott, Northrop Grumman, Raytheon and Citizens Financial Group. In addition, over 300 of our Members eagerly participated by dialing-in to the session and listening via phone.

Candee Chambers, VP of Compliance and Partnerships for DirectEmployers Association kicked off the listening session by thanking Patricia Shiu, Debra Carr and Naomi Levin for hosting the listening session. Candee stated, “I think everyone realizes what these regulations mean for all of us and I think everyone’s nervous about getting it right and I think this is a great opportunity to help us do that.”

John C. Fox acted as moderator by asking questions that were submitted by Member companies prior to the listening session. John encouraged the participants to ask their questions as well.

“Thank you Candee both to those on the line and those here in the room today, we have several hundred attendees joining us. I’m delighted to be here for this very special meeting with OFCCP and DirectEmployers at the OFCCP,” stated John. “I just want to say this is extraordinary, this group and this administration getting together with the contractor community and to listen and adapt to the regulatory environment and the way you do business.”

John began by sharing two observations regarding what’s different about OFCCP today than when he roamed the halls two decades ago. “I remember being in this room many, many times, and there are two things that really commend the wisdom that Pat has demonstrated about having a listening session. The first thing that dawned on me is that industry is much more diverse and much more complicated than it ever was. This is really a challenge for a regulator. Today there are over a hundred industries, so Pat has to deal with that in a way that her predecessors never had to deal with, and it’s much more complex,” stated John. “The last five years it’s gotten so much more competitive in the marketplace that you all are doing business in ways you’ve never done before. And that’s the second thing that I think is different for Pat and Debra and Naomi as they confront regulations and how they address the regulated community, and that is HR is so thin right now. I’ve never seen HR as thin as it is today. Particularly, the last four or five years, you’re being asked to do more with less and often to do much with nothing. And Naomi and Debra, and Pat are aware of that and very sensitive to that issue and that’s why they want to listen to some of your concerns about how you will integrate the new regulations,” continued Fox.

Candee with Member Rosa Coppedge of Sodexo.

Pat Shiu stated, “Before I turn it over to Debra and Naomi, I wanted to thank my staff, especially Debra and Naomi who worked for four long, hard grueling years to bring this over the finish line along with everybody here at the Department of Labor.I also wanted to say that we very much, at OFCCP, appreciated all of your comments. And I hope that you know we took them to heart and we analyzed them over and over and had lots of discussions about them, and tried to balance a lot of competing demands. But when it came right down to it, what we decided was really important, the aspirational goals, the benchmarks, the accountability and the metrics. And two very wise women suggested to me that what business needed was flexibility.” Pat continued, “Give us the flexibility to do what’s best for our industry, our company to get there. Don’t tell us how to get there. That seemed to me to make a lot of sense and it really guided what we did in the final rule. But as with all other decisions here at the Department of Labor, they are evidence-based decisions, based on metrics, so this will be an exercise where you all will be collecting data and we will be collecting data for the first time to really see how we can achieve our mutual goal,” Shiu concluded.

John went on to ask the questions by topic, beginning with the general questions regarding preparations for the implementation date of March 24 – the date that the regulations become legally final. After that, he moved to the question of listing of jobs with the employment delivery service system (ESDS), while addressing some self-identification questions. Understanding it could be a runaway train, he had to limit the time spent on them. Here’s a recap of the key questions addressed by the OFCCP:

John: As Director of Policy Division can you give the audience a sense of how many employees you have working on the regs?

Debra: Not enough. So all this work, the FAQs, the writing of the regs, all the listening sessions, all the creation on our website now about resources available for outreach recruitment, change in corporate culture, best practices around disability issues in the workplace, how to recruit, attract and retain, veterans, all that work is really done by a very small staff. So in my division, as we print out the regs, we’re talking about 20 people. And those 20 people don’t all work on the regs. The actual work on the regs is done by me, Naomi, [and] one other staff member will help along the way with some others. We just kind of shuffle the chairs on a sinking ship. So, day-to-day basis, doing all this work, we’re talking three to four people.

John: When do you think you might have new FAQs – is there some sort of schedule or just whenever?

Debra: We were aiming to do FAQs on a rolling basis every couple of weeks. That has slowed because we’re doing more conversations, we have lists that we’re queuing up and we hope to get cleared next week, and even that process of rolling out an FAQ is not as easy as it may seem. We have conversations, we have meetings, phone calls we make choices about what needs to be on the short list, Naomi and I will start writing, we’ll flip back and forth, we listen to solicitors, they get to bless and clear, we keep Pat informed, we touch base with our colleagues in the operations side of the house.

John: It sounds like between now and March 24 we should look for a rollout of FAQs, we should look for more content-based webinars.

Debra: Yes and let me add two more things that we’re doing to help position you that you should be aware of. We have heard some contractors say they don’t know where the resources are for outreach and recruitment, they don’t know how to develop relationships with the organizations that would help them in that area, and so on our website we put up probably a month ago, some resources on those topics. We’re also working with VETS in DOL for more resources for veteran recruitment

John: I hope everyone is aware that VETS–the Veterans Employment Training Service–is another assistant secretary down the hall from OFCCP with whom OFCCP works closely on veteran’s issues.

Debra: And we’ve been working with the office of disability employment policy to shore up the information that we provide to you on disability rights in the workplace issues, and we’ve been working with our communications and outreach folks to enhance that employment resources referral directory that’s been on our website forever and ever and ever because we’ve heard some of you say that it’s not useful. You go and take a lead and it’s a dead lead. So we’ve worked on clearing that out. It is not perfect, but it’s better and it should get better as we move forward and it will be better the more I hear from you about how it’s working.

The last thing that I will say is our overall approach to working with you has shifted. This period of when we implement and train and support you in regulatory implementation is all about helping you succeed. In order to do that we came to you in a very constructive way and I think that’s what you should be experiencing. So to the extent that you have anxiety about what’s going to happen on March 24, what will happen after I do my first AAP, will I get this exactly right…I said before and I’ll say today, this is a transition for us all. So your first encounter with us on the first day is not going to be like you have to have all the I’s dotted and all the t’s crossed or else. No, all we want to do is go in and engage you, figure out what you have done, what you have not been able to do, give you assistance, to work with you, to get you where you need to be. We know there are going to be data limitations, so what we’re trying to do is work with you. You’ve got to demonstrate that you’ve done something, you can’t sit on your hands and say I just didn’t know what to do. This is a different approach to policy and to enforcement under these new regs.

Candee and Patricia Shiu, Director of the Office of Federal Contract Compliance Programs (OFCCP), outside of the listening session meeting room.

Naomi: I will just say if you miss any of our webinar trainings we are posting them after they are done so you can always go back and find them and listen to them and even watch them if you need them because they are resources and the questions that we get during webinars, we go through them, I go through them and look for good candidates for FAQs that we’ve seen over and over and we’ll go to Debra and say this issue keeps coming up a lot, maybe we need to sit down and develop an FAQ around it. Not only use those to train you, but to get information to help us help you again, kinda full circle.

John: Very helpful. If we could turn the discussion to job listings, now who in the employment service delivery system will see the job listings? 

To access the remaining questions and answers, you need to be a DirectEmployers Member company. Members can access the full post in Pipeline. If you’re not a Member and want to learn more, please visit http://www.directemployers.org/become-a-member/ or call 866-268-6206. 

DEAM14 Session Preview: Redefining Your Online Presence to Attract Diverse Candidates

Thursday, February 27th, 2014

The DirectEmployers 2014 Annual Meeting and Conference (DEAM14) is just around the corner–I mean that literally, it’s less than 30 days away at this point and we couldn’t be more excited to see regular attendees and new faces as well. While we hustle around finalizing last minute details, I thought I’d take a moment to highlight a session entitled, “Redefining Your Online Presence to Attract Diverse Candidates,” which features DirectEmployers Manager of Digital Strategy, Seth Flater, and Kristy Seidel, Hyatt Corporation’s Director of Talent Acquisition.

Heather Hoffman & Seth Flater of DirectEmployers Association

Heather Hoffman and Seth Flater from DirectEmployers Digital Strategy team presenting on the .JOBS Roadmap at DEAM13.

While many of you may have heard of the .JOBS top-level domain, or even invested in its technology, the .JOBS platform has continued to further evolve and is now viewed as a highly sought-after online recruitment tool. In addition to improved job seeker experience, branding and SEO capabilities, the platform is also being used as a tool to disseminate job openings to sites built specifically for diverse candidates such as veterans, individuals with disabilities and minorities. As part of the OFCCP’s revisions to VEVRAA and Section 503, employers need trackable and measurable outreach to diverse that further prove to the OFCCP that your organization has gone the extra mile to list your jobs and better connect with these diverse job seekers.

At DEAM14, Seth and Kristy will take the stage and address how companies can improve their online presence and make their jobs known to the diversity community by strategically listing them on sites that target that specific niche. When looking to reach a particular segment of job seekers, keyword-targeted sites like Veterans.jobs, Diversity.jobs and Disability.jobs can play a huge role in making job opportunities known and branding your company as a diversity-friendly employer.

Seth will provide analytics and back-end knowledge, while Kristy will discuss the accomplishments of Hyatt Corporation who has actively pursued integrating a diversity solution into their recruitment strategy. During this time, she will discuss why Hyatt chose to use the .JOBS platform, as well as deliver analytical data that supports why this solution should be considered a viable option when weighing alternatives.

This session is just one of the learning opportunities that will be available at DEAM14, so join us March 25-27 in Washington, D.C. Not only can you network with colleagues and potentially meet with nationwide partners, you’ll be able to learn other corporation’s best practices when it comes to tackling OFCCP challenges. Take a moment and register to attend our conference today!

Conference Highlight: A First Look at DEAM14

Thursday, February 6th, 2014

As a new conference season kicks off, our team is hard at work planning the DirectEmployers 2014 Annual Meeting & Conference (DEAM14), taking place March 25-27 in the Washington, D.C. metro area. The timing for this year’s conference couldn’t be more perfect, as those within the federal contractor community are likely well acquainted with the March 24 implementation date for the revisions to VEVRAA and Section 503. The agenda will focus on all aspects of veteran and disability hiring, as well as a variety of important issues and best practices for recruitment and talent acquisition, social media, employment branding, and much more. In addition, our partners the National Association of Colleges and Employers (NACE) will be hosting a pre-conference Advocacy event, stay tuned for more details.

Take a look at some of the exciting highlights that you can expect from DEAM14 and be sure to register to attend today as the conference is quickly approaching. Registration is free for DirectEmployers Members! Register now.

UnitedHealth Group speaking with job seekers at the 2013 Veterans Connect Career Fair.

Veterans Connect Career Fair
Prior to the start of the conference, on Tuesday, March 25 from 11:00 a.m. – 2:00 p.m., we will be hosting a Veterans Connect Career Fair at the conference venue, the Hyatt Regency Crystal City. This event will give employers direct access to the talent within the strong military presence of the area and connect with veterans, transitioning servicemembers and their families who are currently in search of a career. As an added benefit to this military outreach opportunity, career fair registration comes with two complimentary registrations for DEAM14!

Our partner NASWA educating DEAM13 attendees.

Demo Hall
In appreciation of our valued underwriters who help to keep the conference free for our Membership, we will once again have a Demo Hall for our supporters to showcase their products and services in a no-pressure environment. Open during breaks and evening networking receptions, this space is the place to experience the latest innovations in HR technology and service – plus there will be plenty of freebies and food and drink! Want to get your organization a spot in the Demo Hall? There are still a few underwriter opportunities available!

Engaging Keynotes
Through our conference, we strive to provide attendees with not only learning and networking opportunities, but also inspiration. Keynote speakers are a great way to give the audience energy and a bit of an entertaining break from the typical educational sessions. One of this year’s exciting keynotes, employment law attorney John C. Fox, Esq. of Fox, Wang & Morgan PC, will take the stage to provide insight into the new regulations, his experience as a trial attorney and his former role as an insider at the OFCCP. Check out his column, the OFCCP Fox Report, exclusively for DirectEmployers. In addition, John Robinson, Managing Partner and CEO at Our Ability, will be giving the keynote address on day two. Born a congenital amputee, John’s inspirational story will show us what is possible and what it takes to overcome obstacles in life and business.

Impressive Agenda
We understand that our conference attendees are looking for useful and actionable information that they can take back to the office. That’s why we vet our speakers to ensure that we have the most engaging and relevant presentations, and this year we have some pretty impressive sessions on the agenda! Some highlights include a session on VEVRAA & Section 503 from Beth Ronnenburg of Berkshire Associates, a veteran hiring panel with participants from LifeTechnologies, Intel and EMC Corporation, a presentation on achieving DOL hiring targets by Howard Green from the National Organization on Disability, and an exciting product update from DirectEmployers Association.

Sounds impressive, right? Register for DEAM14 today and be sure to book your room at the conference venue while the discounted group rate is still available. Hurry, it ends on Monday, March 3! Need some help urging your superiors to approve your registration? Customize our convenient “justify your trip” letter to showcase the many benefits of attending.

DirectEmployers and Employment Law Expert John C. Fox to Host Listening Session with Director Patricia Shiu and Other Key OFCCP Figures

Thursday, January 16th, 2014

DirectEmployers is offering assistance to the federal contractor community by way of a listening session that features OFCCP compliance experts, John C. Fox of Fox, Wang & Morgan, P.C. and the OFCCP’s Patricia Shiu Director; Debra Carr, Director, Division of Policy, Planning and Program Development; and Naomi Levin, Branch Chief for Policy Development and Procedures, Division of Policy, Planning and Program Development.

INDIANAPOLIS, January 16, 2014 – Today DirectEmployers Association, a trusted employer-driven association of talent acquisition and inclusion leaders, has the unique opportunity to work with key personnel in the Office of Federal Contract Compliance Programs (OFCCP) to conduct a listening session at the U.S. Department of Labor, exclusively for members of the Association. Moderated by employment law expert John C. Fox, Fox, Wang & Morgan, P.C., this session will feature the OFCCP’s Patricia Shiu, Director; Debra Carr, Director, Division of Policy, Planning and Program Development; and Naomi Levin, Branch Chief for Policy Development and Procedures, Division of Policy, Planning and Program Development. The participants will work toward dispelling any misinformation that surrounds the OFCCP’s revisions to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973, giving federal contractors a chance to adjust their individual compliance strategies before the implementation date of March 24, 2014.

“A large portion of our membership represents the federal contractor community,” commented Bill Warren, Executive Director, DirectEmployers Association. “With all of the information and interpretation that surrounds the OFCCP’s revisions to VEVRAA and Section 503, this opportunity gives our members the ability to glean accurate information directly from the source, providing them with a clear direction on how to implement the new requirements into their strategies.”

Prior to this exclusive listening session, members of the Association were asked to submit questions regarding the new regulations to generate an interactive discussion among the OFCCP representatives and the company participants to create greater understanding among the federal contractor community. Select members from companies like Armstrong, BAE Systems, Bechtel, Citizens Bank, DuPont, Hilton, Marriott, KPMG, Raytheon and Sodexo were also invited to the Department of Labor to experience this event in-person, while the membership as a whole was invited to listen in virtually.

Founded in 2001, DirectEmployers has worked for over ten years to help federal contractors comply with OFCCP job listing requirements by providing the technology necessary to deliver jobs to the appropriate employment service delivery system (ESDS). In addition to job delivery and partnership facilitation to help with veteran, disability and diversity outreach, the Association also helps employers to amplify their employment brand and job visibility through the proprietary .JOBS top-level domain. For more information on membership and how you can become involved in the Association, visit http://www.DirectEmployers.org or call (866) 268-6206 and ask to speak to a Membership Development representative.

About DirectEmployers Association
DirectEmployers is an employer-driven association focusing on talent acquisition and inclusion that utilizes its technology and thought leadership to amplify job visibility and employment brand, facilitate partnerships to meet EEO/AA goals and provide proof of job delivery.

Media Contact: Nancy Holland, VP of Marketing, DirectEmployers Association, nancy@directemployers.org, (317) 874-9022

DEAM13 Sessions Tackle Compliance Questions for Federal Contractors

Thursday, December 12th, 2013

With the publishing of the new OFCCP regulations, compliance was a major focus of the DirectEmployers 2013 Annual Meeting & Conference. We knew our Members would arrive in San Diego with questions and concerns, and were prepared with a half day of general sessions devoted to the subject, in addition to a track of concurrent sessions led by field experts.

After a day of general sessions and a delicious lunch by the pool, attendees returned to the conference center for breakout sessions of their choosing. The first session was a panel discussion comprised of winners of our inaugural Member Awards Competition. After taking questions from the audience and receiving their awards, attendees moved on to the next session of the afternoon.

First up were DirectEmployers’ very own Digital Strategists, Ronda Johnson and Steven Apostolidis, as they delved into diversity outreach and how the .JOBS top-level domain (TLD) can assist in the hiring of women, minorities, individuals with disabilities and veterans. In their presentation, Ronda and Steven stressed how ‘good faith efforts’ are no longer enough, making initiatives like the .JOBS Diversity Outreach Solution a great tool for federal contractors to add to their compliance toolbox.

Key Takeaways:

  • .JOBS has Diversity Outreach Solutions available.
  • Over 100 companies have adopted a Veterans Crosswalk.
  • Google has 67% of the search engine market share.

For the last concurrent session of the day, Qualcomm’s Gerry Borja and Vanessa Jones presented on veteran outreach, another hot topic among employers. They took time to discuss their veteran integration program with the idea that it’s not just about accommodating the regulations, but about helping people. With a thorough overview of their ‘QCIP – Warriors’ program, attendees were left inspired to develop their own outreach programs within the allotted resources and budget.

Key Takeaways:

  • San Diego is home to the nation’s largest number of veterans returning from wartime duty. (2/15/11)
  • Veterans need assistance transitioning into the workplace as more return from active duty.
  • It is about helping people, note all about statistics.

Participants during DEAM13 compliance track session.

The compliance track on day two kicked off with a presentation centered on the National Labor Exchange (NLx)–a partnership between DirectEmployers and the National Association of State Workforce Agencies (NASWA)–and its role in helping federal contractors become compliant in the eyes of the OFCCP. This role was further confirmed by Members such as Tipton Bradford of IHG, who gave a summary of how the partnership has successfully supplemented their compliance strategy, as well as confirmation from representatives of various state workforce agencies.

Key Takeaways:

  • Since the 2009 presidential inauguration, the OFCCP has reviewed nearly 19,000 federal contractor establishments.
  • IHG has been affiliated with DirectEmployers since March of 2007.
  • The NLx is a cost effective solution for IHG (since they have hotels and offices in multiple states) to help the company achieve a diverse workforce.

Next was a premiere presentation by James Emmett of the Poses Family Foundation regarding its partnership with DirectEmployers Association and their mission to help Members create custom solutions that help satisfy Section 503 requirements. In this session James explained not only the legal reasons to hire individuals with disabilities, but also the ethical reasons to do so, and gave an insightful, albeit high-level, overview of what it takes to do it right.

Key Takeaways:

  • Hiring people with disabilities makes good business sense for many reasons including: lower turnover, fewer absences, good performance, untapped labor pool.
  • A “disability friendly” environment encourages employees to disclose & request needed supports.
  • The disability community is the fastest growing labor and customer niche market in this country.

The final concurrent session was a panel discussion moderated by DirectEmployers’ VP of Compliance & Partnerships, Candee Chambers, joined by members of the Recruitment Regulatory Compliance Committee (RRCC). Tasked with keeping members informed of the OFCCP’s regulatory changes, panel participants addressed the recent changes, shared best practices, and discussed how the NLx helps satisfy the regulations through job delivery. We are still in the process of transcribing the Q&A from the discussion, which will be provided exclusively to Members through the Pipeline.

We hope that all of our attendees had the chance to get their questions answered, and walked away with a game plan for tackling the new regulations before their effective date of March 24, 2014. We are also excited to be hosting the DirectEmployers 2014 Annual Meeting & Conference (DEAM14) that very same week in Washington, D.C., with another strong compliance focus.

Want to take a closer look at these presentations or view photos from the event? Our Members can find it all in the Pipeline.

DirectEmployers Secures Date for OFCCP Listening Session with Director Patricia Shiu

Thursday, December 5th, 2013

As the March 24th deadline to become compliant with the new OFCCP regulations approaches, the federal contractor community is actively seeking advice and direction on how to do so. To help our Members easily transition into the new changes surrounding VEVRAA and Section 503 with a clear comprehension of what is expected, we are forming new compliance partnerships and resources. A few weeks ago we announced our alliance with employment law attorney, John C. Fox, who over the next year will be authoring eight (semi-quarterly) compliance-focused columns within his blog “The OFCCP Fox Report”, as well as hosting four Member-exclusive webinars.

We are also excited to announce that on Tuesday, January 16, 2014 from 10:00 – 11:30 am EST we will be holding a listening session hosted by not only Mr. Fox, but also the Director of the OFCCP, Patricia Shiu, and the Director of the Division of Policy, Planning and Program Development at the OFCCP, Debra Carr. During this hour and a half session, the experts will be answering questions previously submitted by our Members, as well as non-members, with time at the end for attendees to ask additional questions.

While this session is beneficial to employers who are looking to gain a better understanding of the new laws, it is also helpful for the OFCCP, providing an idea of what information needs to be clarified and to help diffuse any confusion that surrounds the new requirements. Questions not answered during the session will be used for future training sessions and webinars provided by the OFCCP.

The listening session seeks to provide answers to pertinent questions and clear up any misunderstandings that exist within the current regulatory environment, and we are thrilled to offer this exclusive opportunity for our Members. While only Members can participate in the listening session, non-members are also encouraged to submit questions, with the answers to be provided after the session has ended. We will be submitting the first round of questions to the OFCCP one month prior to the listening session, and we invite anyone to submit questions they would like to have answered.

Have questions that you would like to have answered during the listening session? Please use the following link to submit your questions: https://www.surveymonkey.com/s/JB8FFBY.

When Federal Contractors MUST Implement OFCCP’s New Section 503/VEVRAA Regulations, and When They MAY Do So

Friday, November 22nd, 2013

I am very excited to be teaming with DirectEmployers, Bill Warren and Candee Chambers, DE’s new Vice President of Compliance & Partnerships, and to be writing my first column for you. This November column is the first of 8 columns on OFCCP compliance I will write over the next year. Each quarter, I will write two columns and also present a webinar to DE Members on an OFCCP compliance topic. If you have ideas/issues you would like me to address in a column or in an upcoming Webinar, please let Candee know. I will write a December column, for example, and then host a 90-minute webinar on January 22, 2014 beginning at 2:00 p.m. EST (MARK YOUR CALENDARS NOW!)

FOCUS: My columns and the webinars will focus on popular OFCCP compliance problems and practical solutions to them. I will often offer a Practice Tip.” My writing will be “down to earth” and specific. I will tell you to turn right, turn left, or to drive straight ahead. Candee and I will tailor my topics to supplement the OFCCP compliance services DirectEmployers Association daily supplies its members.

I want to start my relationship with you by clearing up an OFCCP compliance issue I see currently engulfed in confusion. Erroneous advice I see unfolding in ILG meetings and in Internet blogs across the country is also subsidizing the inherent complexity of OFCCP’s regulations. The compliance issue of interest today concerns WHEN a federal contractor MAY implement OFCCP’s new section 503 regulations and when it MUST do so. Many federal contractors want to roll out the new compliance obligations now. Some contractors are fearful they cannot “pop it all out of the oven” at the same time and would prefer to piecemeal roll-out portions of their total coming compliance solution. (This is the “Rome was not built in a day” crowd). Other contractors want to field test what they have designed and built (whether it be a Pre-Offer Self-Identification Form or a post-employment survey of disability, etc) fearful that they need/want a cure period to get it right before March 24, 2014. (This is the “I don’t want to have the Obamacare website sign-up roll-out problem” crowd).

Other contractors, by contrast, want to know THE LAST POSSIBLE DAY to which they may lawfully procrastinate compliance. While almost all federal contractors currently believe they can do those things necessary to comply between today and March 24, 2014 (the day OFCCP currently presumes its new Section 503/VEVRAA regulations will become legally effective (and OMB “paperwork” approved—and assuming no court enjoins them), a very small but growing number of contractors are fearful they cannot be ready a short four months from this week.

OFCCP’s Final Rules Created Three Different Compliance Dates in 2014

ASSUMING, again, that OFCCP’s Final regulations (i.e. “Rules”):

(1) Become legally effective March 24, 2014 (180 days after their September 24, 2013 publication date as OFCCP announced in both of its Preambles to both Final Rules), AND

(2) No court enjoins them (in whole or in part), AND

(3) OMB again approves all of the so-called “Subpart C” Affirmative Action “paperwork” compliance portions (as opposed to the changes to discrimination law portions of the Final Rules)…..

then three different “compliance dates” will spring up and confront covered federal contractors and covered federal subcontractors.

(NOTE: the ONLY (repeat ONLY) importance to attach to “Subpart C” requirements is that they are “paperwork” requirements which require OMB approval. Do NOT READ anything else into Subpart C requirements other than that they require OMB approval. Many speakers have overgeneralized, for example, and have erroneously said that because AAPs are within Subpart C (they are clearly “paperwork”) and because AAPs written before March 24, 2014 continue in force until the last day of their AAP year, that ALL Subpart C requirements are similarly “grandfathered” or are allowed to be “phased in” and contractors need not comply with any Subpart C requirement until the end of the AAP year. WRONG. As we will see below, OFCCP has “grandfathered” only the AAP BUT NO OTHER of the many Subpart C compliance requirements. Again, the importance of Subpart C is only that it is a nice index to all the “paperwork” requirements OMB must again approve (even though it has twice previously approved all those paperwork requirements—when OFCCP first proposed the Rules and then again just before OFCCP published it Rules in Final in September. But, OMB has to approve them one last time before the “paperwork” portions become what I call: “paperwork effective”).

Here are the three compliance dates, in general, and then I will tie these to specific compliance obligations the Final Rules create:

1) March 24, 2014: the date the Rules become legally and paper work effective and all compliance obligations become effective UNLESS,

2) There is a specific portion of the OFCCP Rule which defers (“grandfathers”) the compliance date to a later date (i.e. AAPs created before March 24, 2014: see specific discussion below of what OFCCP likes to refer to as the “phase-in” permission),

OR

3) The action giving rise to the compliance obligation does not first occur until some date after March 24, 2014 (i.e. perhaps you do not become a federal contractor until, let’s say June 2014, or perhaps you do not sign a “new” covered subcontract until September 17, 2014: see specific discussion below).

The “Phase In,” or “Grandfathering” Rule:

Let’s now understand that second date (relating to Section 503/VEVRAA AAPs you might have prepared before March 24, 2014 but their AAP year runs past and through March 24, 2014). OFCCP’s Final Rule is clear that only the “AAP” is allowed to remain in place for the duration of its AAP year.

I get there two ways. First let’s review OFCCP’s Preamble to OFCCP’s Section 503 Final Rule:

1) “Although the final rule becomes effective 180 days after publication, full compliance with the requirements of this final rule by current contractors will be phased in as follows: Current contractors subject to Subpart C of the existing 41 CFR part 60-741 regulations that have written affirmative action programs (AAP) prepared pursuant to those regulations in place on the effective date of the this final rule may maintain that AAP for the duration of their AAP year. Such contractors are required to update their affirmative action programs to come into compliance with the requirements of Subpart C of this final rule at the start of their next standard 12-month AAP review and updating cycle.“ Emphases added. See 78 Federal Register No. 185 at p. 58685 , middle column, middle, which is the “grandfathering” or “phase in” permission OFCCP accords contractors pursuant to their Section 503 AAPs.

So, OFCCP is permitting contractors to “phase in” only the AAP after the March 24, 2014 legally effective date of the new regs. Do you see any language permitting the grandfathering (or rather, “delay of implementation date”) or “phasing in” of either the pre-offer Self-Identification obligation, for example, or granting permission to delay the start date of any other Subpart C compliance obligation? No. That language is not in OFCCP’s Final Rule. Reading the permission to continue an AAP prepared before March 24, 2014 to also somehow apply to all other Affirmative Action paperwork obligations Subpart C contains is simply too broad and lacks any supporting language in the Preamble or Rules.

So, what that means is that contractors must implement ALL of the many other Subpart C compliance obligations on March 24, 2014 including:

    • making the AAP available to employees/applicants
    • undertaking the pre-and post-offer invitations to Self-Identify (as those applications and offers arise on or after March 24, 2014)
    • undertaking the three Section 503-required surveys of employees (as those surveys/reminder arise on or after March 24, 2014)
    • first year survey
    • 5 year survey
    • interim reminder to self-identify
    • preparing AAPs (as AAPs pre-existing March 24, 2014 expire on or after March 24, 2014)
    • deploying, in management’s discretion, any “voluntary affirmative action programs” for the disabled (there is no analog OFCCP “suggestion” for Protected Veterans)
    • deploying and counting as disabled “Applicants” any Sheltered Workshop training, in which the contractor exercises its management discretion to participate, and leading to employment at the contractor’s establishment at full compensation

Practice Tip: If you are one of the contractors struggling to get your AAPs for the disabled and for Protected Veterans updated next year to the new Final Rule formats, you could simply create new Section 503 and/or VEVRAA AAPs under the old (current) OFCCP Rules as late as March 23, 2014 and delay upgrading your 503/VEVRAA AAPs until March 2015. It is not much of a savings of time and cost, but it does represent some savings. (And, of course, creating a current-style 503/VEVRAA AAP costs little and takes far less than an hour).

With that said, OFCCP could always choose not to enforce its Rules after March 24, 2014…but I do not see that written and I have not heard that OFCCP is even seriously considering any further delay of its Final Rules. So, don’t bank on that. But, if the contractor community got sufficiently confused by the stagger/grandfathering/phase in clause, or put up enough sustained resistance to implementation of the new Rules by March 24, 2014, I could see Pat Shiu pushing back the compliance deadline through non-enforcement. What’s another 6 months to her if there really is consternation out there about complying by March 2014?

Let’s remember, too, OMB needs to approve all the “paperwork” obligations which OFCCP has collected together in Subpart C. (If OMB approval does not occur before March 24, 2014, none of OFCCP’s new “paperwork” requirements will become “paperwork effective” even if otherwise “legally effective”. In the “real world,” if Pat Shiu wanted to delay the effective date of the new Rules, she would simply ask OMB to put her file at the bottom of the OMB in-box and she can then delay the paperwork implementation dates for many months while making it appear that OMB simply does not have enough manpower to muscle the paperwork through the approval desks.)

2) While the invitation to Self-Identify is a Subpart C requirement, that requirement is not only not “grandfathered” as noted above, it could NOT be “grandfathered” since the requirement only springs up for the first time on March 24, 2014. Thus, there is nothing “to grandfather” or phase in as to the Pre-Offer Self-Identification provision. Said another way, as to this new Pre-Offer Self-Identification requirement, the existing contractor stands in the same position as a new contractor which signs its first covered federal contract on March 24, 2014: it must comply with OFCCP’s rules unless there is a specific provision of the Rules deferring the effective date.

The “Corporate Transaction Giving Rise to Compliance Has Not Yet Occurred” Rule

Oh, this is a good one because you cannot figure out the answer to this compliance riddle unless you have actually read the Final Rules. Here’s the question: When must a covered federal contractor embed the new EEO clauses (which both of OFCCP’s Final Rules create) into their covered federal subcontracts? Said another way, does a covered federal contractor (or covered federal subcontractor) have an affirmative duty on March 24, 2014 to search out, find, retrieve and amend all of its covered federal subcontracts and brand them with the new Section 503 and VEVRAA EEO clauses?

SHORT ANWSWER: No.

LONGER ANSWER: If a covered federal contractor or subcontractor “modifies”, or “renews” or “extends” an existing covered federal subcontract ON OR AFTER March 24, 2014 [and assuming the OFCCP Final VEVRAA and Section 503 regulations become BOTH (a) “legally effective” (as expected) and (b) “paperwork effective”], THEN AND ONLY THEN must a federal contractor install the new Section 503 and VEVRAA EEO clauses in its covered federal subcontracts. But, a covered federal contractor or subcontractor DOES NOT have to automatically go back and universally embroider new EEO Clauses into its existing (or what OFCCP regulations and government contract law calls “original”) contracts.

HOW DO WE KNOW THIS?

The new Section 503/VEVRAA regs/Rules are written in parallel and impose the same requirements:

a. The regulation requiring covered federal contractors/subcontractors to embed the EEO Clauses in covered federal subcontracts is found in the “Equal Opportunity Clause” (oh, so that is where that requirement is hidden!) which each of the OFCCP regulations implementing VEVRAA/Section 503 require. See, 41 CFR Section 60-741.5 (a) (6) (Section 503) and 41 CFR Section 60-300-300.5 (a) (11) (VEVRAA).

b. Government contract law governs the amendment of “original” federal contracts and subcontracts. The technical legal question then becomes whether OFCCP’s Section 503/VEVRAA Final regulations automatically amend, by operation of law, the original covered federal contracts and covered subcontracts to require the prime contractor and covered subcontractors to amend their covered federal subcontracts to embed the new EEO Clauses. Happily, OFCCP has squarely anticipated and answered that question for contractors so you do not have to go ask federal government contract lawyers to opine.

c. See para (a) (first sentence) of each of the Final VEVRAA and Section 503 Rules. See, for example, the Section 503 version of the same wording found in OFCCP’s VEVRAA Final Rule (at 41 CFR Section 60-300.5 (a)):

41 CFR Section 60-741.5 Equal opportunity clause

(a) Government contracts. Each contracting agency and each contractor shall include the following equal opportunity clause in each of its covered Government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract) (emphases added):

6. The contractor will include the provisions of this clause in every subcontract or purchase order…so that such provisions will be binding upon each subcontractor or vendor. “ * * * ”

CONCLUSION: Federal contractors do not have to go back and locate all of their existing covered federal subcontracts and automatically amend them to embed the new EEO clauses which OFCCP’s Final (coming) Section 503/VEVRAA Rules will require. Rather, as covered federal contractors and federal subcontractors issue new (original) covered subcontracts, or “modify”, “renew” or “extend” existing covered federal subcontracts, they (the federal contractors and federal subcontractors issuing the revised subcontract) must THEN embed the new EEO Clauses in the covered federal subcontract once “modified”, “renewed” or “extended.”

d. Extra points: To help understand this compliance architecture, it helps to understand that in government contract law, a new contract is formed only when one signs a new (original) contract or original subcontract or “modifies,” “renews” or “extends” an original contract or subcontract. So, this “corporate transactions rule,” as I will call it, is another form of compliance obligation deferral or “phase in” rule.” This compliance obligation triggers, in this case, when there is a “new” contract (accomplished by either writing for the first time an “original” contract, or “modifying,” “renewing” or “extending” a covered federal subcontract and thus creating a “new” contract).

Practice Tip: Contact that portion of your company which signs/modifies/renews/and/or extends covered federal subcontracts and alert the senior manager of that work group to be on the lookout for any of these corporate signing events so you can “tattoo” the new EEO clauses into those new contracts. I usually find federal subcontracting responsibility to be in either the Legal Department, Purchasing, COO’s office; CFO’s office, Supply Chain Manager, and/or Sales Group.

May I “Jump Now In The Water”?

I promised above I would discuss what compliance obligations federal contractors/subcontractors MAY choose to exercise their management discretion to implement early (i.e. before March 24, 2014).

The short answers are:

1) All VEVRAA compliance obligations (there is no statute or regulation prohibiting any of the actions OFCCP’s Final VEVRAA Rule will require: Note: unlike the Final 503 Rule, the Final VEVRAA Rule does not require post-employment inquiries: see next paragraph); and

2) All Section 503 compliance obligations OTHER THAN two:

a. The Pre-Offer Invitation to Self-Identify Disability;
b. The Post-Employment Invitation to Self-Identify Disability

i. Note: There are 3 Post-Employment Invitations

1. First year (of contractor status) invitation
2. Five-year interval Invitation
3. Intervening (“Tweener”) Reminder

So, for example, what the above observations mean is that you could TODAY deploy a new Pre-Offer Self-Identification Invitation to Applicants asking them to voluntarily disclose whether they are a Protected Veteran (NOT what kind or kinds, exactly, of Protected Veteran they are…since that would require some Protected Veterans to answer that they are disabled). You COULD NOT, however, deploy the parallel Pre-Offer Self-Identification Invitation asking Applicants to voluntarily disclose their Disabled status.

So, why are the Invitation to Self-Identify permissions different as between VEVRAA and Section 503?

ANSWER: Both the Americans with Disabilities Act (see 42 U.S.C. §§ 12112 (d) (3) (1994)(codified as amended)) and Section 503 (see 41 CFR Section 60-741.42 (a) ) make pre-offer inquiries about disability or severity of disability unlawful and require that contractors justify post-employment inquiries about disability/severity of disability to be “job related and consistent with business necessity.” There is no analog prohibition on pre-offer inquiries of Protected Veterans pursuant to VEVRAA SO LONG AS the inquiry does not ask about disability. And, as noted immediately above, there are no post-employment inquiry obligations of Protected Veterans in OFCCPs’ Final Rule.

While it is a complicated discussion too long for this column, suffice it to say that there are great legal concerns about whether the ADA and Section 503 (as now amended by the ADA Amendments Act to make 503’s disability prohibitions parallel to the ADA’s prohibitions) will allow pre-offer inquiries. The ADA, for example, prohibits pre-offer inquiries:

“(2) Preemployment


(A) Prohibited examination or inquiry
Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. “(emphases added)”

The fact that OFCCP’s Final Rule requires contractors to make the pre-offer inquiries voluntary does not address the fact that the ADA prohibits “inquiries of a job applicant,” regardless whether the applicant chooses to voluntarily answer or not. The ADA stops all inquiries, unless otherwise permitted. (That is the longer discussion we will save for another column).

PRACTICE TIP: Think about whether it is practical for you to roll out any of your Final Rule compliance program now. OFCCP has not finalized any of the forms with mandated language the Final Rules require. The “EEO employer” preferred advertising legend also has not yet taken form. While OFCCP will not mandate that advertising, I have had clients come up with several different competing versions:

  • EEO Employer/PV/Disabled
  • EEO Employer
  • EEO Employer/Protected Veteran/Disabled
  • EEO Employer/Disabled /Protected Veteran

I think it is probably a little early to jump just yet into compliance four months ahead of schedule. Without the language of the OFCCP-mandated Pre-and Post-Offer Self-Identification forms for the Disabled, and given the need to later migrate Pre-Offer Self-Identification Invitation forms to also invite disclosure of Disability, I might not rush forward with all new systems just yet. Rather, I might more cautiously just get all of my systems and language ready, but keep my forms/language in a penultimate draft stage for a few more months.

Be careful out there! John

Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Fox Report, please contact your membership representative at 866-268-6206 (for DE members), or send an email to Candee Chambers at candee@directemployers.org with your ideas.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.