Veterans and Section 503 Updates: One Year Later

One year ago Office of Federal Contract Compliance Programs (OFCCP) announced changes to the regulat...



Posted by Cindy Karrow, SPHR, SHRM-SCP, Managing Consultant on October 14 2014
Cindy Karrow, SPHR, SHRM-SCP, Managing Consultant
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One year ago Office of Federal Contract Compliance Programs (OFCCP) announced changes to the regulations implementing VEVRAA and Section 503—these changes rocked the world for many contractors. Visions of system changshutterstock_158395598es and challenges swirled around in our heads. Thoughts about recruitment process and procedures and about how to count open jobs and filled jobs consumed us. Those regulations took effect March 24, 2014, and contractors are putting the finishing touches on compliance with them. Let’s take a look back at the past year and see where we came from and where we are now.

The first big issue: collecting voluntary self-identification information. Contractors must solicit voluntary self-identification of disability status from applicants and employees. They must also solicit voluntary self-identification of Protected Veteran (PV) status from applicants and solicit the category of Veteran from applicants who have been made a job offer. Veteran status for employees was already a requirement so the data could be reported on the VETS-100/100A each year in September. Some contractors were already collecting disability status data from employees through voluntary self-identification; but many were not. There were long-standing arguments about whether or not contractors should formally request disability or disabled Veteran information from applicants prior to making a job offer because it might violate the Americans with Disabilities Act (ADA) and its amendments. OFCCP maintained it was not a violation if the data was collected pursuant to a contractor’s compliance with affirmative action requirements. Contractors reasoned there was no reporting of disability status data in any AAP for applicants or employees, so many did not pursue collecting this data. The only report requiring data on disability was the VETS-100/100A reports under the category of Disabled Veteran, and only for employees and new hires. The revisions to the 503 and VEVRAA regulations now require solicitation and reporting of this information. OFCCP posted a letter on their website from the Equal Employment Opportunity Commission (EEOC) stating specifically the solicitation and collection of such data from pre-offer applicants is permissible if it is required or necessitated by Federal Law or other regulation—read the entire EEOC Opinion Letter here.

Contractors have been working for the past year to comply with this requirement. They have been implementing OFCCP’s form to solicit disability status from applicants at the pre- and post-offer stages. They are using the form to solicit disability status from employees during this first year of the new regulations. Find English and Spanish versions of the form here. Contractors also find themselves with two different solicitations for Veteran status since the requirements are different at the pre- and post-offer stages. As I mentioned earlier, solicitation of the PV category was already a requirement for VEVRAA. Contractors have now made the adjustment to solicit status as a PV at the pre-offer stage as well.

The next issue: systems and software changes. HR Information Systems (HRIS) are designed to collect and maintain employee data. Some of them were already set up with fields for an employee’s status as an IWD and PV. Unfortunately, some were not, or contractors had not activated that function in the HRIS. Contractors are at the mercy of HRIS vendors to make the appropriate changes since many of those vendors serve a large community of users.

Applicant Tracking Systems (ATS) were not programmed to retain information on disability or Veteran status at the pre-offer stage. Contractors have been feverishly working with their ATS vendors or in-house IT departments to make these programming changes. This involves not only the background programming changes, but all the applicant-facing screens in an online ATS. One example is working the required language for disability voluntary self-identification into an online ATS since the language must be exactly as the OFCCP form presents—even using the appropriate font, font size, and referencing the OMB information. This has been one of the greatest challenges for contractors and ATS vendors.

Since contractors also must evaluate the effectiveness of their outreach and recruitment activities at the end of the AAP year, ATS’ must be able to gather and retain information about where a job seeker found out about a job opening. This has presented another significant challenge including ATS programming changes to allow for more specific drop down menus or text fields that job seekers can use to provide referral information. Contractors are working on how to use the information to track and evaluate effectiveness of their efforts.  

Contractors who use paper applications and self-identification forms have also been making adjustments to their forms and processes to ensure compliance with the regulations changes.

The solicitation of voluntary self-identification of disability status from employees during the first year of the regulations has also presented systems and process challenges. Contractors are working through the most effective and efficient methods for soliciting and collecting this information. Some are using the OFCCP form in print format, and the forms will be sent to each employee with a request to return it to HR. Some are using an electronic version and ensuring every employee receives the request. Upon completing the form (including choosing not to self-identify as disabled) the data moves directly into the HRIS where it is kept confidential.

Let’s not forget AAP outsourcing and software vendors! More than 12 months ago Berkshire began bringing our clients the best tools possible to develop compliant AAPs for IWD and PV. Contractors will be reporting data and performing analyses on data in these two AAPs for the first time at the end of the first AAP cycle following March 24, 2014. Our BALANCEaap affirmative action application has enhanced capabilities to allow for the data reporting and analyses, as well as, a new tool in BALANCEhub called REACH that lets you collect and retain data on recruitment activities, and evaluate effectiveness. For more information, click here.

All these systems and process changes require implementation. Contractors have been juggling multiple priorities to accomplish all that must be done before the beginning of their next AAP cycle following March 24, 2014. For some, that date seemed far, far away and allowed plenty of time to make the changes. Those with a January 1 plan date have had many months to plan and implement the changes. Contractors whose AAP effective dates were June or September, for example, had much less time to ensure compliance and put new processes in place.

The third issue: communication: All these changes could bring about questions from applicants and employees. Asking about disability status has probably given contractors the most concern. In some cases this is an opportunity to begin a discussion about reasonable accommodation and promote a disability friendly atmosphere. OFCCP Director, Patricia Shiu, believes this will be an outcome of asking for voluntary self-identification about disability. Many contractors have developed communications plans and processes to explain why they are suddenly interested in a person’s status as an IWD. They are also formulating plans to continue the communication with at least one reminder in the next five years to employees they may voluntarily self-identify as disabled at any time during their employment. Then contractors are scheduling the next mandatory solicitation of disability status from employees for a date five years from now. Contractors are more comfortable asking about Veteran status because of the increased emphasis on Veteran hiring. However, there is no requirement to solicit Veteran status from employees—only applicants pre- and post-offer.  

Finally, outreach and recruitment efforts: this is an area many contractors are seeking to improve for all job seekers, but especially for IWD and PV. This is being approached in many ways. One method is to enter into an agreement with a third-party vendor or website to list job openings on a variety of job boards and websites including the applicable state job service agencies. Contractors are cautioned to ensure the information is available from these vendors to show the efforts were made should they need this information for a compliance review. It will also be necessary to evaluate whether or not these efforts are effective in attracting job seekers who are disabled or PV as I mentioned above in the ATS discussion.

Contractors are also seeking partnerships and establishing relationships with local and community organizations. They are making contact with vocational rehabilitation agencies and Veteran’s organizations that are close to work locations. There is discussion about training programs and assistive technology. Agencies and organizations are being invited to visit work sites and see what their clients might face on-the-job to better equip them for future openings.

Job fairs are springing up all over the country to help employers find qualified disabled and Veteran job seekers, as well as members of other diverse groups. Most state job service websites have job fair listings, and many organizations focused on assisting job seekers can provide information about job fairs they will attend.

Do not forget OFCCP has resources on their website that can assist contractors with finding good outreach and recruitment sources including a Community Resources Directory. Click here for more information on tax credits, reasonable accommodation, building an inclusive environment, etc.

To sum it up—it has been a very busy year. The flurry of activity is winding down to a flutter as we get closer to the end of 2014. Most contractors with January 1, 2015, AAP dates have completed the planning and testing phases required by the changes and are making the final tweaks. Those whose AAP dates arrived more quickly after March 24 are evaluating what they accomplished, and making necessary adjustments. And we are all moving forward to the next phase—soliciting, tracking, evaluating effectiveness, and reporting results.

To learn more about what’s ahead, access this informative article on The OFCCP Horizon—What’s in Store for 2015. For support with any of these changes, please contact a Berkshire compliance expert at 800.882.8904 or bai@berkshireassociates.com.
Cindy Karrow, SPHR, SHRM-SCP, Managing Consultant
Cindy Karrow, SPHR, SHRM-SCP, Managing Consultant
As a Managing Consultant, Cindy Karrow, SPHR, SHRM-SCP specializes in developing AAPs, acting as liaison with the OFCCP, and delivering customized training.

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