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.