Surveying Requirements Under the Revised Veterans and Disability Regulations

This article originally appeared in the March 2014 edition of the LocalJobNetwork "OFCCP Digest."

The revised regulations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in regard to protected veterans and individuals with disabilities are now in effect. Companies were required to implement some of the items in these revised regulations by March 24, 2014. There are other requirements in the revised regulations that must be implemented when companies next update their affirmative action plans for veterans and individuals with disabilities.

One of the most important set of changes in the revised regulations are the changes regarding surveying. There are major revisions that federal contractors and subcontractors must make to the way they survey applicants and employees for information on veteran and disability status. While companies may make these changes on or after March 24, 2014, they MUST make some of these changes no later than the date that AAPs are next updated.

Preparing for the Revised Veterans and Disability Regulations

This article originally appeared in the February 2014 edition of the LocalJobNetwork "OFCCP Digest."

Federal contractors and subcontractors continue to prepare to implement the revised regulations regarding protected veterans and individuals with disabilities that were issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). There are certain provisions in these revised regulations that must be implemented by March 24, 2014. I discussed these provisions my January 2014 article for the OFCCP Digest.

On Friday, February 14, OFCCP provided new information regarding some of the March 24 requirements via a series of answers to frequently asked questions (FAQs). These new FAQs have important ramifications regarding certain actions that federal contractors and subcontractors should take.

Preparing for the Revised Veterans and Disability Regulations - What’s Due on March 24

This article originally appeared in the January 2014 edition of the LocalJobNetwork "OFCCP Digest."

Federal contractors and subcontractors across the United States are preparing to implement revised regulations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in regard to protected veterans and individuals with disabilities. These revised regulations were issued on September 24, 2013. Some of the requirements in these revised regulations must be implemented by March 24, 2014, while other requirements must be implemented when companies next update their affirmative action plans for veterans and individuals with disabilities.

In this article, we’re going to focus on the provisions in the revised regulations that must be implemented by March 24. While these provisions may not be the most onerous in the revised regulations, they do not have the kind of flexibility in regard to implementation date that is associated with other portions of the revised regulations.

OFCCP Sends Survey Form for Individuals with Disabilities to OMB

OFCCP’s revised regulations regarding individuals with disabilities state that the agency will provide the survey form that federal contractors and subcontractors are to use to survey individuals with disabilities. That form has now been sent to the Office of Management and Budget (OMB) for review. The form can be found at http://www.reginfo.gov/public/do/PRAICList?ref_nbr=201307-1250-001. (Click on the "Voluntary Self-Identification of Disability" to open the actual form.)  OMB must approve this form before OFCCP can require its use by federal contractors and subcontractors. Once approved by OMB, companies will be required to use this specific form to survey individuals with disabilities.

It appears that the survey form currently available at OMB’s website would be used to survey both applicants and employees. The requirement to survey applicants is a new requirement under the revised regulations. Companies will need to start using OFCCP’s prescribed survey form either on March 24, 2014 or at the time that affirmative action plans (AAPs) are being updated after that date. For example, a company that has an affirmative action plan for individuals with disabilities that is updated each year in January would begin using OFCCP’s prescribed form on January 1, 2015.

The version of the survey form currently at OMB has no place for the name of an applicant or employee. OFCCP Director Patricia Shiu was asked about this on October 18 when she appeared at the National Employment Law Institute’s affirmative action briefing in Washington, DC. Ms. Shiu and OFCCP Policy Division Branch Chief Naomi Levin responded that they expected companies would associate the name of an applicant or employee with the form. Ms. Shiu and Ms. Levin also indicated that the form is still under review by OMB and may undergo changes before it is released for use by federal contractors and subcontractors.

The current version of the form appears to have another item that will need to be modified before its final release. While the form states that companies “are required to invite...employees to self-identify each year,” the revised regulations actually require companies to conduct a survey of the entire workforce every five years. Companies must conduct an initial re-survey within one year of the time that the regulations become effective or their affirmative action plans are updated.

Patricia Shui Appears at NELI conference

OFCCP head Patricia Shiu made an appearance on Friday at the National Employment Law Institute conference in Washington DC.  She took questions in a variety of topics, including the survey form for persons with disabilities that was recently released to the Office of Management and Budget (OMB).  She indicated that the form, which does not include a place for applicant or employee name, should, in fact, be tied to individual applicants and employees.

OFCCP Makes Scheduling Announcement List Available and Then Withdraws List

At the 2012 National Industry Liaison Group (NILG) conference in Hawaii, OFCCP announced that it would be making its scheduling announcement list publically available on its website as a service to federal contractors.  The scheduling announcement list is the list of companies that would be received a pre-scheduling notice from OFCCP informing these companies that they would be subject to an affirmative action compliance review.  These pre-scheduling notices (formally called a corporate scheduling announcement letter or CSAL) are NOT the letter actually opening a review.  Instead, they are, in OFCCP's words, a "courtesy notification" of an impending review.  (For more information on CSALs, see our earlier blog post on this subject.)

On Thursday, July 18, 2013, OFCCP made a portion of the 2012-13 scheduling announcement list publically available on its website.  The list could be viewed at http://www.dol.gov/ofccp/regs/compliance/SAL/SAL_MidAtlantic.htm. By the next day, however, the list had my disappeared from the website.  At the 2013 NILG conference in Indianapolis, which occurred at the end of July, OFCCP explained that the scheduling announcement list had been posted in error and that the agency had not intended for the list to be publically released.  OFCCP has made no further commitments to making its scheduling announcement list available on its website.

Reaction from federal contractors and subcontractors to having the scheduling announcement list posted on the OFCCP website has been mixed.  Some large contractors were looking forward to having one source to review in order to determine how many establishments would be undergoing a compliance review.  OFCCP no longer sends a unified listing of all establishments at a company that will be undergoing review to a corporate headquarters office, instead sending the pre-scheduling notice directly to the establishment that will be undergoing review.  This has been a problem for certain larger organizations.  However, some contractors, both large and small, have been troubled by the idea of having the names of establishments to be reviewed released to the general public.

VETS Encounters Technical Difficulties with System Used to File VETS-100/100A Report

It appears that the Veterans Employment and Training Service (VETS) is once again having problems with the on-line system used to file the annual VETS-100 and VETS-100A reports. This has been something of an annual issue and it’s not clear why VETS can’t seem to develop a system that allows for the effective filing of these reports. However, for the moment, companies will need to wait to file for 2013.

Federal contractors and subcontractors are required to file the VETS-100 and/or VETS-100A report in the third quarter of each year. We believe that almost without exception companies should be filing the VETS-100A report rather than the VETS-100 report, as the VETS-100 report is only used by companies that have unmodified federal contracts from earlier than December of 2003. A very small number of companies have contracts which are that old, and almost all (if not all) of these contracts have been modified in some way. Thus, companies should be filing the VETS-100A report.

OFCCP is routinely asking for copies of the latest VETS-100 or 100A filings during compliance reviews, and thus it is important to file the report.  It's simply not clear when companies will be able to do so for 2013.  VETS notice about the VETS-100/100A filing says "We are currently experiencing technical difficulties with the VETS 100/100A filing systems and we are not able to receive filings at the present time. We hope to have these system issues resolved shortly and appreciate your patience."