What’s Old, What’s New & Important Timing Considerations
By now it’s old news that the OFCCP has revised regulations pertaining to Protected Veterans (Vets) and Individuals with Disabilities (IWDs). If researching the topic, you would find a library of information on what has changed, when do you need to comply and how to manage each new requirement. Here, I will highlight some considerations that should be given to a newer component in the compliance arena. This is the OFCCP’s revised scheduling letter, and how it has changed the way contractors will submit individual program components during an OFCCP desk audit. Since many changes involve the new regulatory requirements for Vets and IWDs, and some of those changes are phased in over the next plan cycle, we’ll explore some important timing considerations that should be taken if you were to receive this notice from the agency in your next affirmative action plan year.
Since May of 2011, OFCCP has been seeking approval from the Office of Management and Budget (OMB) on a revised version of their Scheduling Letter. This is the letter that outlines information you need to submit during an OFCCP compliance review (“audit”). On September 30, 2014, OFCCP published a notice in the Federal Register informing contractors that OMB finally approved a new version. Upon issuing this notice, the agency promised that it would not send any new Scheduling Letters between Oct. 1st and Oct. 15th, 2014. That time frame has passed and as we sit today, if you are chosen for an OFCCP audit, you will receive the newer version of the letter (Revised Letter).
What’s Old & What’s New
The Old –You will still be required to submit your current affirmative action plans for Women and Minorities, Protected Veterans and Individuals with Disabilities. Though it will require you provide more detail, the same requests are made for selection data (adverse impact and goal attainment reports) and compensation data (now line-itemed and in greater detail). Copies of EEO-1s and union agreements (if applicable) are still going to be part of the newer submission.
The New – The letter now contains specific requests, categorized by “Section 503” and “Section 4212 (VEVRAA)” which were not previously in play. These sections refer to your affirmative action plans for IWDs and Vets, respectively. While you have always turned in your AAPs for these protected classes, the new version asks for specific components that may or may not be part of your program at the current time. Let’s next look at the specific requests for each category.
Taken from scheduling letter:
7. Results of the evaluation of the effectiveness of outreach and recruitment efforts that were intended to identify and recruit qualified individuals with disabilities (IWDs) as described in 41 CFR § 60-741.44(f).
8. Documentation of all actions taken to comply with the audit and reporting system requirements described in 41 CFR § 60-741.44(h).
9. Documentation of the computations or comparisons described in 41 CFR § 60-741.44(k)for the immediately preceding AAP year and, if you are six months or more into your current AAP year when you receive this listing, provide the information for at least the first six months of the current AAP year.
10. The utilization analysis evaluating the representation of IWDs in each job group, or, if appropriate, evaluating the representation of IWDs in the workforce as a whole, as provided in 41 CFR § 60-741.45. If you are six months or more into your current AAP year on the date you receive this listing, please also submit information that reflects current year progress.
Section 4212 (VEVRAA)
11. Results of the evaluation of the effectiveness of outreach and recruitment efforts that were intended to identify and recruit qualified protected veterans as described in 41 CFR § 60-300.44(f).
12. Documentation of all actions taken to comply with the audit and reporting system requirements described in 41 CFR § 60-300.44(h).
13. Documentation of the computations or comparisons described in 41 CFR § 60-300.44(k)for the immediately preceding AAP year and, if you are six months or more into your current AAP year when you receive this listing, provide the information for at least the first six months of the current AAP year.
14. Documentation of the hiring benchmark adopted, the methodology used to establish it if using the five factors described in § 60-300.45(b)(2). If you are six months or more into your current AAP year on the date you receive this listing, please also submit information that reflects current year results.
This seems like a lot when viewing the letter. Put simply, it’s requesting:
Section 503 – That you analyzed how many IWDs were in your workforce, how you compare to an annual goal of 7% and that you have documented the results of this analysis, your outreach efforts and your plan for moving forward based on those results.
Section 4212 (VEVRAA) – That you analyzed how many Vets were hired during the year, how you compare to a hiring benchmark for Vets (currently 7.2%) and that you have documented the results of this analysis, your outreach efforts and your plan for moving forward based on those results.
In both sections, the majority of the request can only be fulfilled if the contractor tracked and measured the results of the two protected classes. Since the requirement to ask for the information, and include the collection of the responses, is the component that is phased in with regulatory changes, we will need to determine if the contractor had any of the obligations being asked for when the Scheduling Letter is received.
Important Timing Considerations
Since each contractor can decide on their affirmative action plan date, and the regulatory changes discussed above revolve around that date, the timing of the Scheduling Letter can create some confusion on what’s needed to satisfy the request. Let’s now explore the required response framed around the date of your latest affirmative action plan.
You have a plan date before March 24th, 2014:
The majority of Contractors have calendar year plan cycles and are currently working with a January 1, 2014 version of their AAP(s). When that plan was written, regulations pertaining to Vets and IWDs were still following the pre-regulatory change format. Under previous regulations, Contractors did not have an obligation to obtain Vet and IWD information prior to an individual being hired and therefore wouldn’t be able to satisfy the requests for items 7, 9, 10, 11, 13 and 14. For Items 8 and 12, your plan narrative should outline your audit and reporting systems, and you would simply point OFCCP to its inclusion.
You have a plan date after March 24th, 2014 (Transitional AAP Year):
Time has passed and you have created an affirmative action plan under the revised regulatory requirements. During the year you will be asking individuals to self-identify with the new categories, tracking this information internally and putting processes in place to enhance outreach efforts. All of these activities are ongoing and the information asked for in 7, 9, 10, 11, 13 and 14 won’t be required for inclusion in the AAP construction. Until they are, OFCCP is simply due a response indicating that the requirement is being incorporated and will be reported on when applicable to your organization.
You have a plan date after March 24th, 2014 AND 6 months have passed:
Some of the items above call for updated information if you are more than six months into your plan year. For this timing consideration, we will still be working with an AAP written under the new guidelines (post 3/24/14), but has been in place for more than six months. There is not an expectation that you rewrite the plan at that point, but Items 9, 10, 13 and 14 would require you demonstrate how your midyear performance has compared to the benchmarks and utilization goals. OFCCP expects that you are tracking the information to allow for such reporting and recently released some guidance around the topic. (Scheduling Letter FAQs)
You have a plan date after March 24th, 2014 AND 1 year has passed:
Your plan should now contain all components being asked for in the letter. During the course of the previous AAP year, you would have asked applicants and employees to voluntarily self-identify as Vets and IWDs. You would have also been tracking the information and partnering with outreach sources to attract more qualified candidates from each protected class. After the completion of that plan year, you would have all of the required information to conduct the analyses and report them in your updated AAP. After that time, and if the Scheduling Letter is received, the OFCCP expects all components of their new letter be satisfied with your submission.
As pointed out in each scenario, depending on your affirmative action plan date you will only be required to produce certain things around each new request. OFCCP has been better at providing guidance through their website and releasing FAQs on newer topics. We’ll expect more as Contractors muddle through the audit process over the next couple of years. One thing that has been stated repeatedly in webinar presentations is the agency will not be citing violations for new components during the transitional period. This at least gives us time to assess the nature of the updated review process and alter our submission strategy accordingly. We will be sure to revisit the topic as time passes and best practices are shared.