Friday, December 27, 2013

Data Collection from Applicants

kai·ros   1. a propitious moment for decision or action.
Dear Kairos Clients:

Last week OFCCP held a webinar on the new Individuals with Disabilities and Protected Veteran regulations that take effect on March 24, 2014.  The webinar provided some important updated information that significantly impacts when federal contractors should start their data collection process for applicants.  Kairos wants to provide some general guidance to its clients based on this recent information provided by OFCCP.  Please keep in mind that the information below is not legal advice, so please contact us if you would like to discuss your specific situation.

The new regulations take effect on March 24, 2014, however, the data collection requirements (asking applicants to self-identify as protected veterans and as individuals with a disability) take effect “at the next AAP update after the March 24, 2014 effective date” per OFCCP.  As a result, you should be aware that:
  • Compliance with the new regulations is a “phased in” approach as it pertains to data collection;
  • Your AAP anniversary (also referred to as the next AAP cycle) AFTER March 24, 2014, is when the data collection for applicants requirement begins;
  • On your AAP anniversary AFTER March 24, 2014, you will START collecting the data from qualified applicants;
  • The analysis on the data collection will commence when a complete year of data collection has occurred.
Kairos strongly suggests that you NOT start data collection from applicants until you are required to do so.  There are several reasons why.
  • If you start collecting disability information from applicants prior to March 24, 2014, you may be in violation of laws enforced by the EEOC.
  • Should you be subject to an audit, we do not want additional data that is not required to be maintained to be available for OFCCP during their audit as they develop their investigative techniques to analyze the data required by the new regulations. 
The chart below provides examples of how the phased in process works for Applicant Data Collection. 
Next AAP AnniversaryStart APPLICANT
Data Collection
Initial Data Collection
Report in AAP
1/1/141/1/151/1/16
3/1/143/1/153/1/16
7/1/147/1/147/1/15
10/1/1410/1/1410/1/15

However, it is not too early to start preparing for the methods that you may use to collect this data.  It is important to strike a balance between being ready to collect meaningful data and actually collecting that data.  Kairos has developed a compliance checklist for the new regulations that will be available to our clients the week of January 6th.  If you would like this checklist please send an email to jen@kairosservicesinc.comwith “Request New Regs Checklist” in the subject line.  Kairos will of course carefully continue to monitor OFCCP’s enforcement of the new regulations and keep our clients informed of any updates or changes as new information becomes available.


Lisa

Lisa Kaiser
Director of Compliance Services/General Counsel
 

Monday, December 16, 2013

Christmas Message

Dear Kairos Client,

Merry Christmas from all of us at Kairos Services.  We would like to thank you for being our valued client through 2013 and we make two commitments to you.  First, we pledge to continue to work with you to achieve 100% compliance and secondly, we promise not to take your business for granted.  We know you have choices and we are honored you have chosen us.

As many of you know, Kairos is a Greek word from the Bible that we translate as “God’s perfect timing”.  So those times when things happen in your life that are meant to be, when everything comes together perfectly, when the moon and sun are perfectly aligned, well, we call those “kairos moments”.  So our wish for you for 2014 is many kairos moments along with good health and many blessings.

We look forward to serving you in 2014 and, as always, our phone lines and doors are open to serve you if any need or questions should arise.

Sincerely,
The Kairos Staff

Tuesday, November 26, 2013

Thanksgiving

Happy Thanksgiving

At this time of Thanksgiving we pause to count our blessings.
The freedom of our great country.
The opportunity for achievement.
The friendship and confidence you have shown in us.
For all these things we are deeply thankful.

Marshall Mendez
Norma Brito
&
The Kairos Family
FOLLOW ON TWITTERFRIEND ON FACEBOOKFORWARD TO FRIEND 
Copyright © 2014 Kairos Services, Inc., All rights reserved.
You are receiving this email because you are a client of Kairos Services, Inc.

Our mailing address is:
Kairos Services, Inc.
Corporate Office
DallasTx 75070

Monday, October 14, 2013

Vets-100/100A Update

VETS-100/100A Filing is Open

Have you completed your VETS-100/100A reports?  The deadline was extended from September 30 to October 31.  At this point the new deadline still stands and the website is open for filing.  Kairos recommends that you complete your VETS-100/100A filing in the online system (https://vets100.dol.gov/vets100) as it provides an immediate acknowledgement of filing.  Here is the full statement on the VETS-100/100A website:

Special Notice
Due to the federal government shutdown, our Customer Support Contact center will be unavailable to respond to messages or inquiries regarding submission of VETS 100 and VETS 100A Reports from federal contractor inquiries until further notice. Federal contractors will, however, be able to continue to file VETS 100 and VETS 100A Reports online. We regret the inconvenience and appreciate your patience and understanding.

We will continue to monitor this and other online reporting systems and provide more details when available.  Since customer support is unavailable you are welcome to call Jennifer and see if she can assist with VETS 100/100A issues.

Friday, September 27, 2013

News Release - Deadline Extension for VETS 100/100A

Dear Kairos Clients:

Clients have been experiencing technical issues trying to complete their VETS 100/100A online.  Great news for everyone struggling to meet the deadline!  According to the website the deadline for filing has officially been extended to October 31, 2013.


Please feel free to contact us at Kairos Services, Inc. with any questions you may have.

Tuesday, September 24, 2013

News Release - Publication of the new Final Rules

Dear Kairos Clients:

In a press release today, OFCCP Director Patricia Shiu announced the publication of the new Final Rules for Section 503 and VEVRAA in the Federal Register.  This officially starts the 180-day countdown for Federal contractors to comply with the new regulations.

Specifically, the regulations take effect on March 24, 2014.  Please note the Affirmative Action Program requirements under Subpart C allows a phased approach to compliance.  The final rules state that
 
contractors are required to update their affirmative action programs to come into compliance with the requirements of subpart C of this final rule at the start of their next standard 12-month AAP review and updating cycle.” 

Therefore, contractors with AAPs in place on March 24 may maintain them until the end of their current AAP year, whereby allowing them to delay compliance with the affirmative action requirements of the new rules until the start of their next AAP year cycle. 

Please feel free to contact us at Kairos Services, Inc. with any questions you may have.


Marshall P. Mendez
President

Thursday, September 12, 2013

503/VEVRAA Webinar Invite

Section 503 and VEVRAA Final Rule
This webinar FREE and exclusive to Kairos Services, Inc. clients

You are invited...

Over the past two weeks you received a series of email briefings covering changes to non-discrimination and affirmative action regulations to Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.  As promised Kairos will hold a webinar on two separate dates to review new requirements.

This practical, working webinar is being offered exclusively to Kairos clients FREE of charge.  The webinar will feature Nicolas Paul, Director of Operations, and Lisa Kaiser, Director of Compliance Services.

  • Friday, September 20 - 12:00 p.m. CST
  • Monday, September 23 - 10:00 a.m. CST

What you need to know...

  • Cost? FREE!
  • Availability: There will be 25 seats* for each date.  If more than one employee needs to attend from a single location please arrange for a single log-on.
  • Homework: At a minimum you need to read Kairos' briefing emails PRIOR to participating in the webinar.  We suggest you read the regulations if at all possible.  This will allow you to take maximum advantage of the webinar.
  • We plan to record the webinar for future availability.
  • The webinar is exclusive to Kairos clients.
What we plan to accomplish during the webinar:
  • Introduce the new requirements in the regulations.
  • Deliver in a format that will allow clients to identify what needs to be done.
  • Allow clients to develop a plan of action items as a result of the webinar.
What will will not be included in the webinar:
  • Review of regulatory requirements already in place prior to these regs being issued.
  • Review of OFCCP best practices, suggestions or "encouraged" items.
*Preference seating will be given to clients with up-to-date Affirmative Action Plans.

How to register...

To register for a seat please email Jennifer (admin@kairosservicesinc.com):
  • Your name, company and email address
  • Your date of preference
You will receive a confirmation of your seat directly from Jennifer, along with more instructions about your participation.

Tuesday, September 10, 2013

A Kairos Briefing (Parts 4 - 6) – Changes to the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)

Introduction
In order for Kairos to move expeditiously to hold its webinars on VEVRAA and Section 503 of the Rehabilitation Act of 1973, we have combined Parts 4 through 6 in this briefing to address the Final Rule implementing the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) at 41 CFR Part 60-300. This briefing is not intended to be a comprehensive review of all the changes to VEVRAA but rather is an overview of the most significant changes. Details about these changes can be found by accessing the following link to the VEVRAA:http://www.dol.gov/ofccp/VEVRAARule/. At its core, VEVRRA’s two-fold objective is to (1) prohibit discrimination by Federal contractors against protected veterans covered by the law and (2) requires that contractors take affirmative action to recruit, hire and promote these veterans.
Highlights
The following highlights will be covered in this briefing.
  • Rescission of Outdated 41 CFR Part 60-250.
  • Effective Date of the Final Rule
  • Veterans Covered Under the New Rule
  • Establishment of Annual Hiring Benchmarks for Protected Veterans
  • Invitation to Self-Identify Pre-Offer, Post-Offer and Through Surveys
  • Conduct Self-Audits: Document and Update Annually
  • Listing Job Vacancies with the Appropriate Local State Job Service
  • Appropriate Outreach and Recruitment Efforts
  • Reasonable Accommodations
  • Incorporating EO Clause in Contracts and EEO Taglines
  • OFCCP Audits and Records Access
Rescission of Outdated 41 CFR Part 60-250
The Final Rule rescinds 41 CFR 60-250 in its entirety, however, veterans formerly protected only under Part 60-250, referred to as pre-JVA veterans, will still be covered from discrimination under 40 CFR Part 60-300.
Effective Date of the Final Rule
The effective date of the Final Rule is 180 days from the publication of the Rule in the Federal Register which is expected by September 11, 2013. Contractors are to comply with all regulatory requirements as of the effective date except for preparing VEVRAA Affirmative Action Programs (AAPs) under Subpart C. This part provides a phased in approach to compliance for affirmative action programs. AAPs in place on the effective date of the Final Rule remain unchanged until the next regular reporting cycle. For example, a January 1, 2014 AAP does not need to comply with the Final Rule until its next reporting cycle on January 1, 2015, since the Final Rule will not be effective until sometime in March/April 2014 (depending on the date that the Final Rule is published in the Federal Register).
Veterans Covered Under the New Rule
Contractors are prohibited from discriminating against protected veterans and pre-JVA veterans for employment and are required to take affirmative action to employ and advance the employment of protected veterans. These protected veteran categories include:
  • Disabled Veterans
  • Recently Separated Veterans
  • Active Duty Wartime or Campaign Badge Veterans
  • Armed Forces Service Medal Veterans
Pre-JVA Veterans are defined in 41 CFR 60-300.2(o)
Establishment of Annual Hiring Benchmarks for Protected Veterans
VEVRAA requires contractors to establish annual benchmarks to measure their progress in recruiting and employing veterans and achieving equal opportunity for those veterans. Contractors will have two options for establishing a benchmark: (1) a benchmark equal to the national percentage of veterans in the civilian labor force which will be published and updated annually by the OFCCP (the current national percentage of veterans in the CLF is 8%) or (2) Contractors can create their own benchmark based on the best available data from the Bureau of Labor Statistics (BLS) and the Veterans’ Employment and Training Service/Employment and Training Administration (VETS/ETA), which will also be published by the OFCCP. Additionally, Contractors may use other factors that reflect the contractor’s unique hiring circumstances and best available data. Contractors may apply their hiring benchmark to each of their job groups but are not required to do so.
Invitation to Self-Identify Pre-Offer, Post-Offer and Through Surveys
Under the Final Rule, contractors will now be required to invite applicants to voluntarily self-identify as protected veterans at the pre-offer stage of the hiring process. This requirement allows contractors to track the number of protected veteran applicants they receive to assess outreach and recruitment efforts. The Final Rule retains the requirement that contractors extend an invitation to applicants to voluntarily self-identify post-offer as a specific category of protected veteran – e.g., recently separated veteran, disabled veteran. Contractors can then use this information to complete the VETS-100A Report. Appendix B of the Final Rule includes a sample invitation. Unlike the Final Rule of Section 503 of the Rehabilitation Act which requires a workforce re-survey the first year and every five subsequent years, no re-survey of a contractor’s workforce is required under the Final Rule of VEVRAA.
Note 1: Although no referral source data is required, Kairos suggests that referral (recruitment source) data be maintained to better assess the effectiveness of outreach and recruitment efforts.
Note 2: Kairos also suggests adding the following to the self-identification form provided by the OFCCP – “I decline to self-identify.”
Note 3: Kairos recommends contractors insure their applicant screening criteria does not screen out or tend to screen out a disabled or other protected veteran or a class of disabled or other protected veterans unless the contractor can show the screening criteria is job-related for the position in question and consistent with business necessity. Additionally, contractors may not use selection criteria that relate to the performance of an essential function of the job to exclude a disabled veteran if that person could satisfy the criteria with a reasonable accommodation.
Conduct Self-Audits and Document and Update Annually
Contractors are required to conduct self-audits, document and annually update several quantitative measures for veterans who apply and are hired. This data will assist contractors in assessing the effectiveness of their outreach and recruitment efforts. Specifically, contractors are required to document and update the following information regarding applicants, hires and employees annually.
    • The number of protected veteran applicants;
    • The total number of job openings and the number of jobs filled;
    • The total number of applicants for all jobs.
    • The total number of protected veteran applicants hired; and
    • The total number of applicants hired
These records must be retained for a period of three years to assess the effectiveness of long-term outreach and recruitment efforts.
Listing Job Vacancies with Appropriate Local State Job Service
The Final Rule requires contractors list all job vacancies (except for executive and top management, positions filled within the contractor’s organization and positions lasting three days or less) with the local state employment service where the vacancy is located. Job listings must be in a manner and format permitted by those agencies. For example, if the agency requires transmission of job vacancies electronically through a Web-based form, the contractor must so provide them. The job listing must indicate that the contractor is a federal contractor on the listing, indicate its desire for priority referral of protected veterans for openings, and provide contact information for the official responsible for hiring at each location.
Appropriate Outreach and Recruitment Efforts
Contractors are required to undertake appropriate outreach and recruitment for protected veterans. Contractors are free to choose and utilize outreach and recruitment sources they believe will work best for them. Linkage agreements are not required. Self-assessment of outreach and recruitment efforts must be conducted and documented annually. Assessments must include the criteria used to evaluate the effectiveness of each effort and the contractor’s conclusion as to whether each effort was effective. Assessments must be maintained for three years to evaluate the success of long term efforts. Contractors must disseminate their outreach policy to employees, managers, and union officials if the company has collective bargaining.
Reasonable Accommodations
The Final Rule states that contractors must make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled veteran unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The regulations state that if an employee known to be a disabled veteran is having significant difficulty performing his/her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee’s disability. If the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation. Additional required accommodations include: providing equal access to disabled veterans to electronic or online job applications systems, electronic notification of the contractor’s equal opportunity policy statement, and other communications that disabled veterans may have difficulty accessing due to their disabilities. The Final Rule also provides detailed guidance in Appendix A to contractors for providing reasonable accommodations to disabled veterans. All data collected with respect to reasonable accommodations is required to be maintained by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later.  However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period will be one year.
Incorporating EO Clause in Contracts and EEO Taglines
The Equal Opportunity Clause in contractors’ subcontracts can continue to be incorporated by reference but must cite the regulations at 41 CFR 60-300.5(a) and include the following sentences in bold text immediately following the citation.
This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.”
Hiring solicitations and advertisements must include “veteran status” or “protected veteran” or similar language in their existing equal opportunity employer statement.
OFCCP Audits and Records Access
The Final Rule codifies the recent Frito-Lay judicial determination by stating that the OFCCP may extend the temporal scope of a compliance evaluation and examine information after the date of the compliance evaluation scheduling letter if the OFCCP believes it necessary to carry out its investigation of potential VEVRAA violations. The Final Rule of VEVRAA also requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

The content provided herein by Kairos Services, Inc. is for informational purposes only and not a substitute for professional advice.  The opinions expressed in this email service are the opinions of the individual author and may not reflect the opinions of the company or any individual professionals. You should seek independent advice from one of our professionals before acting upon any opinion or information contained in this mailer or our websites.

Monday, September 9, 2013

A Kairos Briefing (Part 3 of 6) – Changes to Section 503 of the Rehabilitation Act of 1973

Introduction
Significant changes have occurred with the release of the Section 503 Final Rule. Part three of this series highlights the most significant changes that have occurred in the following areas.
  (5) Outreach and Recruitment Efforts
  (6) Audit and Reporting System
  (7) The 7% Utilization Goal
  (8) Affirmative Action Policies
  (9) Data, Data and More Data
       *(See Part 2 of the series for areas 1-4)
We will identify what is required, recommended and what is considered a best practice in the Final Rule.
Outreach and Recruitment Efforts 
As a part of the affirmative action obligations in the Final Rule, Federal contractors are required to undertake reasonably designed outreach and recruitment activities to recruit qualified individuals with disabilities.  One very important requirement is the contractor’s obligation to send written notification of company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part.  Although the Final Rule offers a number of activities from which Federal contractors may choose, the rule does not limit or explicitly require a contractor to engage in all the recommended activities. The scope of the contractor’s efforts shall depend upon the circumstances including the contractor’s size and resources and the extent to which existing employment practices are adequate.  With some exceptions, the ultimate measure regarding the effectiveness of a contractor’s outreach and recruitment efforts is the proportion of individuals with disabilities who apply and are hired into the contractor’s workforce. Examples of outreach and positive recruitment activities include those listed as an attachment to this briefing paper (See Attachment § 60-741.44(f) (2) at the end of this brief).
The Final Rule requires self-assessments regarding the effectiveness of a contractor’s outreach and recruitment efforts to identify and recruit qualified individuals with disabilities.  Self-assessments are to be completed annually and must at a minimum include (1) the criteria used to evaluate the contractor’s effectiveness of each effort and (2) the contractor’s conclusion as to whether its efforts were effective.  If efforts were not effective, the contractor shall identify and implement alternative efforts.  The results of self-assessments must be kept on file for a period of three years
The required data that must be collected to perform self-assessments of a contractor’s outreach and recruitment efforts, including calculations and comparisons pertaining to applicants and hires, must be maintained for a period of three years and must include:
  (1) The total number of applicants who self-identified as individuals with disabilities or who were otherwise known to be individuals with disabilities.
  (2) The total number of applicants for all jobs
  (3) The total number of job openings and jobs filled
  (4) The number of individuals with disabilities hired
  (5) The total number of applicants hired
The Final Rule also requires internal dissemination of policies which show a contractor’s commitment to engage in affirmative action efforts to employ and advance in employment qualified individuals with disabilities.  The required policy of dissemination must be made available to employees and if part of a collective bargaining agreement, the contractor must notify union officials and/or representatives of the contractor’s policy and request their cooperation.  Additional recommendations are also made for implementing and disseminating policy but are not required, such as informing all employees and prospective employees of its affirmative action commitment, scheduling meetings with all employees to discuss its affirmative action policies, and conducting special meetings with management personnel about these policies. 
 Audit and Reporting System
Another very important requirement under the Final Rule is the auditing and reporting system.  Specifically, a contractor must implement an audit and reporting system that will:
  (1) Measure the effectiveness of the contractor’s affirmative action program for IWD
  (2) Indicate any need for remedial action
  (3) Determine the degree to which the contractor’s objectives have been attained
  (4) Determine whether known individuals with disabilities have been provided the opportunity     to participate in all company sponsored educational, training, recreational, and social activities
  (5) Measure the contractor’s compliance with the affirmative action program’s specific obligations
  (6) Document actions taken to comply with the obligations listed above and retain these documents as employment records subject to the requirements of one year or two years (based on the threshold of 100 employees/$150,000 contract; see Section “Data, Data and More Data below).
The 7% Utilization Goal 
The Final Rule establishes a 7% utilization goal for employment of qualified individuals with disabilities for each job group in the contractor’s workforce or for the contractor’s entire workforce.  Contractors who establish utilization goals by job group must use the same job groups established for utilization analyses under Executive Order 11246.  However, contractors with 100 or fewer employees have the option to measure utilization of individuals with disabilities based on the contractor’s entire workforce.
Contractors must annually evaluate the utilization of individuals with disabilities in their workforce and take steps to correct impediments to equal opportunity where utilization is found to be less than availability.  In the event utilization is found to be less than availability, contractors must assess their (a) personnel processes, (b) the effectiveness of outreach and recruitment efforts, (c) the results of their affirmative action program audit, and (d) “any other areas that might affect the success of the affirmative action program.” Additionally, contractors must develop and execute “action-oriented programs” to correct problem areas identified above.  However, the Final Rule allows contractors flexibility with regard to the specifics of the actions they undertake such as modification of personnel processes to ensure equal employment opportunity, alternative or additional outreach and recruitment efforts and/or other actions designed to correct the identified problem areas and attain the established goal.
 Affirmative Action Policies 
Pursuant to the Final Rule, Federal contractors must undertake affirmative action policies to advance the employment opportunities for individuals with disabilities in their workforce.  Detailed in the preceding paragraphs and previous brief, these policies were significantly strengthened, requiring additional action and record keeping requirements for which contractors must assess the effectiveness of their policies and programs.  Ultimately, the required affirmative action policies detailed in the Final Rule allow contractors significant flexibility in the development of their policies, procedures and remedial actions to correct deficiencies should they exist. 
Data, Data and More Data
In Subpart E-Ancillary Matters, 60-741.80(a) of the Section 503 Final Rule, the general requirements for record keeping are detailed in addition to those previously discussed, using a ‘catch all’ which states that “any personnel or employment record made or kept by the contractor shall be preserved” by one of two standards depending on contractor size or award amount.  According to the Final Rule “records” include but are not limited to:
“records relating to requests for reasonable accommodation; the results of any physical examination; job advertisements and postings; applications and resumes; tests and test results; interview notes; and other records having to do with hiring, assignment, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship.”
The Final Rule allows a shorter record keeping requirement of only one year for contractors with fewer than 150 employees or does not have a Government contract of at least $150,000.  Contractors who employ 150 employees or more or have a Government contract of $150,000 or more must preserve personnel and employment records for a period of two years.  Regardless of the contractor’s size, the record period begins from either the “making of the record or the personnel action involved, whichever occurs later.”  Additionally, when a contractor receives notice of a complaint, compliance evaluation, or enforcement action, the contractor must preserve all records relevant to the complaint, compliance evaluation, or action until “final disposition of the complaint, compliance evaluation or action.”
Conclusion
Although providing contractors significant flexibility in the establishment of their policies and procedures, in the Final Rule may result in significant findings of non-compliance for contractors who do not establish:
  (1) Robust procedures for collecting data pursuant to the provisions of the Final Rule and
  (2) Effective programs for advancing the employment of individuals with disabilities
Previously, the provisions detailed in Section 503 were little more than an annual exercise in paperwork.  However, the redesigned Final Rule establishes concrete metrics and mandatory data collection requirements for assessing the effectiveness of affirmative action policies for individuals with disabilities.  Therefore, contractors who repeatedly find themselves underutilized may likely end up in conciliation agreements when audited due to their inability or failure to design and implement effective affirmative action programs to advance the employment of individuals with disabilities. 
Note: The 180 day countdown for the effective date of the Final Rule does NOT begin until the Rule has been published in the Federal Register.

The content provided herein by Kairos Services, Inc. is for informational purposes only and not a substitute for professional advice.  You should seek independent advice from one of our professionals before acting upon any opinion or information contained in this mailer or our websites.

Friday, August 30, 2013

A Kairos Briefing (Part 2 of 6) – Changes to Section 503 of the Rehabilitation Act of 1973

Introduction
With the release of the Section 503 Final Rule, significant procedural changes have occurred in information dissemination, data collection and self-assessments required by Federal Contractors to comply with the new Final Rule.  Part two of this series highlights the most significant changes in the first four (4) of the following nine (9) areas:
  (1) Definition of “Disability”
  (2) Equal Opportunity Clauses
  (3) Reasonable Accommodation Procedures
  (4) Voluntary Self-Identification – Pre-Offer, Post Offer and Resurvey
Areas 5 through 9 will be covered in part three of this series and include:
  (5) Outreach and Recruitment Efforts
  (6) Audit and Reporting System
  (7) The 7% Utilization Goal
  (8) Affirmative Action Policies
  (9) Data, Data and More Data
We will identify what is required, recommended and what is considered a best practice in the Final Rule.
Definition of “Disability”
In order to implement changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008, Section 503 required revisions to the definition of “disability” in order to incorporate the ADAAA requirements.  The Final Rule defines disability as a “physical or mental impairment that substantially limits one or more of the major life activities of such individual” 60-741.2(g).  Additionally, the definition of disability also includes having a “record of” such an impairment or “regarded as” having such an impairment. This definition of disability was intentional and “in favor of a broad coverage of individuals, to the maximum extent permitted by law.”
Equal Opportunity Clause
The Equal Opportunity (EO) clause is a required part of all federal contracts and subcontracts subject to Section 503.  However, it is not necessary to include the clause verbatim so long as the contract cites the clause 41 CFR 60-741.5(a) and includes the following language verbatim, in bold, after the citation: “This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.” 
Reasonable Accommodation Processes and Procedures
Section 503 requires covered Federal contractors and subcontractors provide reasonable accommodations to qualified individuals with disabilities, except when an accommodation would impose an “undue hardship” or a “direct threat”.  It should be noted that reasonable accommodation applies to qualified individuals in the job application process, affirmed by the invitation to voluntarily self-identify as a person with a disability in the Pre-Offer stage of employment as well as Post Offer.
After the job application process, reasonable accommodations also applies to the actual work environment, as well as benefits, privileges and opportunities which may be associated with employment.  It should further be noted that “as a matter of affirmative action, if an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee’s disability. If the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.”
Although the written use of procedures for processing reasonable accommodations is a best practice and is not required, the Final Rule provides guidance to contractors in Appendix B, including a suggested written procedure should a contractor engage in such a process.
All data collected with respect to reasonable accommodations is required to be “preserved by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later, except as set forth in paragraph (b) of this section.”
Voluntary Self-Identification – Pre-Offer, Post Offer and Resurvey 
One of the most substantive changes to Section 503 is the required process for collecting and recording self-identification data, particularly in the Pre-Offer stage of employment.  OFCCP’s rationale to allow Federal contractors the ability to gather disability statistics in their hiring practices, Pre-Offer, is so they can assess the effectiveness of their outreach and recruitment efforts.
  • ·         Pre-Offer – The invitation to self-identify may be included with the application materials for a position but must be separate from the application.  The contractor must invite the applicant to self-identify using the language and manner prescribed by the Director and to be published on the OFCCP web site “soon”.
  • ·         Post-Offer – Defined as any time after the offer of employment but before the applicant begins their job duties, the contractor must invite the applicant to self-identify using the language and manner prescribed by the Director and to be published on the OFCCP web site “soon”.
  • ·         Resurvey – Current employees must be extended an invitation to self-identify as an individual with a disability.  New Federal contractors must invite current employees to voluntarily self-identify within the first year the contractor becomes subject to Section 503.  After the first year, Federal contractors must invite employees to self-identify at five year intervals and must remind their employees once during the five year interval that they may update their disability status.
It is important to note that all self-identification information must be kept confidential and must be maintained in a data analysis file separate from the employee’s medical file.  Additionally, the medical information can only be shared with:
  • 1.      Managers and supervisors regarding necessary restrictions of work or duties of the applicant or employee and necessary accommodations
  • 2.      First aide and safety personnel when appropriate, if they require emergency treatment
  • 3.      Government officials enforcing ADA or laws administered by OFCCP
All self-identification data collected must be maintained for three years.  This data includes:
  • 1.      The number of applicants who self-identified as individuals with disabilities or are known to be individuals with disabilities
  • 2.      The total number of job openings and total jobs filled
  • 3.      The total number of applicants for all jobs
  • 4.      The total number of applicants with disabilities hired
  • 5.      The total number of applicants hired
Coming Soon
In part three of this training series we will discuss areas 5 through 9:
  (5) Outreach and Recruitment Efforts
  (6) Audit and Reporting System
  (7) The 7% Utilization Goal
  (8) Affirmative Action Policies
  (9) Data, Data and More Data
Kairos Services welcomes any comments or questions regarding any issues or information raised in this training series.

The content provided herein by Kairos Services, Inc. is for informational purposes only and not a substitute for professional advice.  You should seek independent advice from one of our professionals before acting upon any opinion or information contained in this mailer or our websites.

Tuesday, August 27, 2013

A Kairos Briefing (Part 1 of 6) – Changes to Section 503 of the Rehabilitation Act of 1973

Introduction
After a significant delay since its inception, the Office of Federal Contract Compliance Programs (OFCCP) submitted their proposed regulatory revisions to Section 503 of the Rehabilitation Act of 1973 to the Office of Management and Budget (OMB).  In less than 30 days, OMB approved the proposed Section 503 regulations today.
Welcome to the first installment of our six part series!  The first three parts of this series address the OFCCP’s regulatory changes under Section 503 of the Rehabilitation Act of 1973.  In this installment we will provide a summary and analysis of the most significant revisions contained in the Final Rule.  This review of Section 503 will assist human resource professionals in understanding how these changes impact Federal contractors in the time and cost necessary to comply with the Section 503 Rule.
 Summary
Section 503 prohibits discrimination by covered Federal contractors and subcontractors against individuals on the basis of disability and requires that Federal contractors take affirmative action on behalf of qualified individuals with disabilities.  These “affirmative actions” include engaging in outreach and recruitment efforts, entering into linkage agreements, and a variety of other proactive steps which are to be expressly detailed in a contractor’s personnel policies to recruit persons with disabilities. According to the OFCCP, the existing Section 503 regulations needed significant changes in order to transform the regulations from a “paperwork exercise” into a program for enhancing equal employment opportunities for qualified individuals with disabilities.
The most substantive changes in the Final Rule can be divided into four distinct categories meant to embody the purpose and intent of the Final regulations.  First, the changes are meant to provide a ‘bridge’ between job-seeking qualified individuals with disabilities and Federal contractors seeking them.  Second, the changes ensure contractors understand and effectively communicate their affirmative action obligations to (a) their incumbent workforce, (b) prospective job-seeking individuals with disabilities and (c) entities with which covered contractors engage in business.  Third, the Rule provides significant increases in data collection and analysis for contractors to assess the effectiveness of their affirmative action efforts.  Finally, during its conduct of compliance audits, the Rule provides the OFCCP with greater flexibility and efficiency in conducting compliance evaluations.
 Analysis
In order to strengthen its affirmative action provisions, the OFCCP has made specific changes to the definition and scope of Section 503, removing ambiguities while imposing mandatory “specific actions” be taken by Federal contractors.  The following paragraphs provide a brief narrative from which we analyze the four previously mentioned categories.
Provide a ‘bridge’ – In order to connect qualified individuals with disabilities and contractors looking for them, the OFCCP has codified substantive outreach and recruitment efforts in the Final Rule.  A few of these efforts include (1) listing all employment opportunities with the nearest One-Stop Career Center, (2) engaging in a minimum number of outreach and recruitment efforts, (3) entering into linkage agreements with organizations and agencies for the purpose of recruiting qualified individuals with disabilities, (4) extended dissemination of its affirmative action commitments to affirmative action on behalf of individuals with disabilities and (5) the collection and retention of all applicable data related to outreach efforts for individuals with disabilities for a five-year period.
Effectively Communicate – Once job-seeking individuals with disabilities and employers have come together, it is essential for Federal contractors to effectively communicate the protections and benefits provided under the Section 503 Rule.  Effective communication includes but is not limited to (1) inclusion of affirmative action policies in a policy manual and/or employee manual, (2) discussions of equal employment opportunity during orientation and training programs, (3) providing notice of rights under Section 503 in formats accessible to employees working offsite, (4) providing the option to self-identify and (5) providing a process to request an accommodation and other related communications.  Consistent with the previous section, all records must be kept on file for five years from their creation, including the results of self-monitoring assessments performed on an annual basis.
Increased Data Collection and Analysis – The significant volume of new data that must be collected, maintained and stored is arguably the most rigorous new requirement of the Section 503 Final Rule.  This substantial increase in data collection was largely enacted for the purpose of conducting self-assessments of affirmative action program effectiveness.   Under the new 503 regulations, contractors are required to maintain documentation on referral, applicant, hiring actions and job openings data for a period of five years.  Further, a significant increase in reasonable accommodation compliance requirements also substantially adds to a contractor’s burden of compliance. 
One particularly challenging self-assessment is that which measures progress toward the new 7% utilization goal for persons with disabilities required by the new regulations.  This 7% goal per job group for persons with disabilities represents another compliance challenge to federal contractors.
Greater Flexibility and Efficiency – With increased access to electronic data and contractor self-assessments, the OFCCP will have an increased ability to conduct more in depth compliance evaluations.  With the significant increase in data retention required under the Final Rule, OFCCP will have a greater likelihood of identifying patterns of discrimination against individuals with disabilities within a contractor’s workforce.
Conclusion
Without a doubt the OFCCP has significantly increased the burden on Federal contractors and the cost of doing business with the Federal government across nearly every conceivable area related to affirmative action and Section 503.  Dissimilar from past revisions to Section 503, the OFCCP has substantially increased the size and scope of contractor obligations to include data collection, retention, and annual self-assessments.  It is critical that Federal contractors prepare now to implement the provisions of the Final Section 503 Rule for achieving compliance in the face of these significant changes.

The content provided herein by Kairos Services, Inc. is for informational purposes only and not a substitute for professional advice.  The opinions expressed in this email service are the opinions of the individual author and may not reflect the opinions of the company or any individual professionals. You should seek independent advice from one of our professionals before acting upon any opinion or information contained in this mailer or our websites.

BIG NEWS - THE REGS PASSED!

Dear Kairos Clients:
It is likely that your email inbox has been inundated the last few hours with the announcement of the Final Rules which represent a substantial step forward in advancing employment opportunities for Veterans and Individuals with Disabilities.   These regulations, announced a few hours ago by Vice President Biden, were obviously on a very fast track, navigating the OMB approval process in less than 30 days.  We will have 180 days before the Final Rule takes effect and, for sure, there will be a lot of work involved for federal contractors to comply.   

You will likely receive information on numerous webinars that will be offered as soon as the end of this week.  However, we have a plan in place which will help Kairos clients understand what is codified in the new regulations.  Over the next week to 10 days you will receive a series of six emails.  We had originally planned to release them at the rate of one a week to provide you amply time to review and digest.  So we now have to step up the pace, releasing one to you every 2 or 3 days.  We want you to have time to review these six pieces of information before you participate in our webinars.  We believe this process will help you gain a deeper understanding of the metrics and compliance obligations required by the new regulations, therefore allowing you ample time to contemplate questions you need answers to by the time we hold our webinars.  We will likely do several of them and limit participation to 25 maximum for each webinar so we can include a Q&A session with each.

You can view today’s press release on the DOL’s website by clicking on this link.  As always, we look forward to guiding you through this time of significant change in affirmative action and EEO compliance.

Marshall
Marshall P. Mendez
President

Friday, August 23, 2013

A Kairos Training Series

The upcoming six part series referenced below has been developed by Kairos Services, Inc. as a training tool to assist federal contractors in complying with proposed changes to non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended, and section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.  Submitted by the Office of Federal Contract Compliance Programs (OFCCP) to the Office of Management and Budget (OMB) at the end of July, these revisions are expected to be approved by OMB in the very near future and may impose significant increases in data collection and analysis a contractor must undertake in order to achieve compliance with these proposed regulations.  Although it is unclear to what extent these regulations will be approved or amended, it is clear that the federal contractor community needs to prepare to comply with these regulatory changes once approved.
 Why is this important to you?  The reasons are basically twofold.  First, the proposed regulations significantly increase the data collection requirements of federal contractors, and second, they establish new utilization goals for individuals with disabilities and veterans against which contractors must self-audit the effectiveness of their outreach, recruitment, hiring and other affirmative action obligations.
 Training Outline – This series has been subdivided into six parts in order to help Human Resource and HRIS professionals with information dissemination, process revisions, and data collection modifications necessary to achieve compliance with the proposed regulations.  The first three parts of this series tackle the data collection requirements and goals specific to the regulations implementing section 503 of the Rehabilitation Act of 1973 (individuals with disabilities), while the second three parts of the series address the provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (veterans).
 Kairos Services welcomes any comments or questions regarding any issues or information raised in this training series.