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THE OFCCP PUBLISHES TWO FINAL RULES THAT AFFECT FEDERAL CONTRACTORS

On August 27, 2013, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) announced two Final Rules to improve hiring and employment of veterans and people with disabilities. The final rules are available on the OFCCP Web site at VEVRAA Rule and 503Rule.

 

1. The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA)

 

One of the Final Rules makes changes to the regulations implementing the Vietnam Era Veterans' Readjustment Assistance Act, as amended (VEVRAA) at 41 CFR Part 60-300. VEVRAA prohibits federal contractors and subcontractors from discriminating in employment against protected veterans, and requires these employers to take affirmative action to recruit, hire, promote, and retain these veterans.

Highlights of the Final Rule:

 

Rescission of 41 CFR Part 60-250: The Final Rule rescinds the outdated 41 CFR Part 60-250 in its entirety. However, veterans that were formerly protected only under Part 60-250 will still be protected from discrimination under the revised 41 CFR Part 60-300.

Hiring benchmarks: The Final Rule requires that contractors establish annual hiring benchmarks for protected veterans. Contractors may either use a benchmark equal to the national percentage of veterans in the civilian labor force prepared by the OFCCP or they can establish their own benchmarks using data published by the OFCCP as well other factors that reflect the contractor's unique hiring circumstances.

 

Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire.

 

Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process and includes sample invitations to self-identify that contractors can use.

 

Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference.

Job Listings: The Final Rule clarifies that when listing their job openings, contractors must provide that information in a manner and format permitted by the appropriate State or local job service, so that it can access and use the information to make the job listings available to job seekers.

 

Records Access: The Final Rule clarifies that contractors must allow the OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP's option. Contractors must provide those records to the OFCCP in whichever of the formats used by the employer, the OFCCP requests.

The OFCCP has published a Fact Sheet and Frequently-Asked Questions about the Final Rule.

 

2. SECTION 503 OF THE REHABILITATION ACT OF 1973

 

The other Final Rule updates requirements under Section 503 of the Rehabilitation Act of 1973 regarding individuals with disabilities. These new requirements are similar to those that have long been required to promote workplace equality for women and minorities. The Final Rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.

 

Highlights of the Final Rule:

 

Utilization goal: The Final Rule establishes a nationwide 7% utilization goal for qualified individuals with disabilities. Contractors must conduct an annual utilization analysis and establish specific action-oriented programs to address any identified problems.

Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of individuals with disabilities who apply for jobs and the numbers they hire.

 

Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as individuals with disabilities at both the pre-offer and post-offer phases of the application process and that they invite their employees to self-identify as individuals with disabilities every five years.

 

Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference.

 

Records Access: The Final Rule clarifies that contractors must allow the OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at the OFCCP's option and must provide those records to the OFCCP in whichever of the formats used by the employer, the OFCCP requests.

 

ADAAA: The Final Rule implements changes needed by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of "disability" and certain nondiscrimination provisions of the implementing regulations.

 

The OFFCP has published information on the new rule, including a Fact Sheet and Frequently Asked Questions.

 

Both rules will be published in the Federal Register shortly and be effective 180 days after their publication. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the new AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.

We will keep you informed of any further developments on these matters.

 

The Labor Law Group at Fiddler González & Rodríguez, P.S.C., will issue the FGR LABOR WATCH with information of legal issues and developments in areas of interest to our friends and clients. If you know anyone who would like to receive the FGR LABOR WATCH, please feel free to forward this newsletter. For more information about any matter raised in this Labor Watch, please contact your usual FGR labor lawyer or José A. Silva Cofresí at jsilva@fgrlaw.com.

©2014 FIDDLER GONZÁLEZ & RODRÍGUEZ, P.S.C. Permission is granted to view, store, print, copy or distribute the content of this newsletter for noncommercial or personal use, provided you do not alter it and you give us proper credit. The content of this newsletter is for informational purposes only. It is not legal advice or advertising. In addition, the above discussion has been provided in general terms and, therefore, should not be relied upon as legal advice applicable to a specific set of facts and circumstances. Before taking legal action, consult a lawyer you trust. Although we will try to be accurate, you cannot rely on its applicability to your specific problem without consulting your lawyer. Fiddler González & Rodríguez, P.S.C. and the members of the Labor Law Group assume no responsibility to inform you of additional changes in law or any other legal issues related to matters addressed in this email of which we may become aware after the date hereof. This newsletter is not intended to create an attorney-client relationship between you and our firm or any of our attorneys. If we are not already representing you, be mindful that your email communications to any of our lawyers will not be treated as privileged or confidential until you ask us to represent you, we first conduct a conflict of interest search, we agree to represent you and you sign an engagement letter from the law firm.

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