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Record retention is complex and time consuming. However, in addition to complying with various federal and state laws, keeping good, well-organized records can be very helpful in documenting and supporting an organization’s employment actions.
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March 24, 2014
OFCCP’s FAQs shed light on issues of self-identification, notices, and more
By Susan Schoenfeld, JD, Senior Legal Editor

In recently released FAQs, the U.S. Department of Labor’s OFCCP provides important guidance on complying with the final rules implementing affirmative action plan (AAP) requirements under the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act (Section 503). Some of the latest FAQs are discussed here.

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Soliciting self-identification

In its FAQs, the OFCCP “strongly encourages” contractors not to wait to collect self-identification data until the contractors’ new plan year after the March 24, 2014, effective date as the rules allow, but rather to begin collecting such data immediately, beginning on the March 24, 2014, effective date.

According to OFCCP’s FAQ:

What do contractors with AAPs in place under the old regulations need to do beginning on the effective date of the new Section 503 rule to ensure that their first AAPs under the new regulations are as compliant as possible?

As a contractor, you may delay compliance with the AAP requirements of Subpart C until your first AAP is due following the March 24, 2014, effective date. This includes the newly required preoffer self-identification elements in Section 60-741.42. While you are allowed to delay compliance with Subpart C until the start of your first posteffective date AAP, the OFCCP does not encourage this approach.

However, should you choose not to comply with Subpart C until your first posteffective date AAP, you must ensure that your existing AAP complies with all the current requirements, including using the postoffer self-identification invitation required by the current regulations in Section 60-741.42.

The OFCCP recommends that all contractors begin complying with Subpart C of the new regulations before the issuance of their first AAP under the new rules, and strongly encourages contractors to take these steps as soon as practicable after the effective date.

OFCCP’s FAQ for the final VEVRAA rule contains identical guidance regarding when to begin soliciting self-identification of protected veteran status. The updated FAQs also cover the following areas of concern for contractors:

Posters

The revised regulations require that the "EEO is the Law" poster be made available in a "form that is accessible and understandable" to individuals with disabilities and disabled veterans, such as Braille or large print. Must contractors maintain Braille and/or large print versions of the poster at all locations?

Providing the "EEO is the Law" poster in an alternate format, such as large print or Braille, is a form of reasonable accommodation. Therefore, contractors must make the poster available in such an alternate format only when an applicant or employee requests the poster in an alternate format, or when the contractor knows that an applicant or employee is unable to read the poster because of a disability. Contractors may also provide the poster to an applicant or employee with a disability in other alternate formats, such as on disc or in an audio recording, as long as the format provided enables the individual with a disability to access the contents of the poster.

The revised regulations require contractors to “conspicuously store” the “EEO is the Law” poster with, or as part of, an electronic application. Does this mean that an actual physical or electronic copy of the poster must be individually stored with each application?

The purpose of this requirement is to ensure that applicants who apply for jobs electronically are informed of their equal employment opportunity protections as part of the application process. Although including a copy of the poster with every electronic application will satisfy the requirement, the regulations do not require contractors to do this. Rather, a contractor may choose to satisfy this requirement in any way that ensures that every electronic applicant has the opportunity to view the poster during the application process, such as by displaying a prominent link to the poster, along with a brief explanation of what the link connects to, as part of their electronic application.

Equal opportunity (EO) clauses

For those contractors that elect to incorporate the required Equal Opportunity (EO) clauses by reference, may the "incorporation by reference" clause required by 41 CFR Section 60-300.5(a) be combined with the "incorporation by reference" clause required by 41 CFR Section 60-741.5(a)?

Yes, contractors may combine these two EO “incorporation by reference” clauses provided that the combined clause is set in bold text and the prescribed content of both clauses is preserved. The following example provides one illustration of how this might be done:

This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

Are federal contractors permitted to combine all of the Equal Opportunity (EO) clauses required by 41 CFR Section 60-300.5(a), 41 CFR Section 60-741.5(a), and 41 CFR Section 60-1.4(a) (or for construction contractors, 41 CFR Section 60-4.3(a)) into a single, consolidated “incorporation by reference” clause?

Yes, contractors may combine all of their required EO clauses into a single "incorporation by reference" clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO "incorporation by reference" clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:

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.

To see the full set of OFCCP’s FAQs, go to OFCCP’s website at www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm#content
and www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm.

For more information on the OFCCP’s final disability rules for federal government contractors, see BLR’s Resource Center, OFCCP Regs for Federal Contractors.


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