OFCCP Publishes Proposed VEVRAA Regulation Revisions

By Robert Newland

Below the details of this announcement. Affirmative Action Services will prepare an in-depth analysis on this in the next few days.

OFCCP published in the April 26, 2011 Federal Register a Notice of Proposed Rulemaking (NPRM) that proposes to strengthen affirmative action requirements of federal contractors and subcontractors for veterans protected under the Vietnam Era Veterans' Readjustment Assistance Act of 1974. Veterans protected by VEVRAA include those with disabilities and those recently discharged as well as those who served during a war, campaign or expedition for which a campaign badge is authorized. The NPRM link to the Federal Register is http://www.gpo.gov/fdsys/pkg/FR-2011-04-26/html/2011-8693.htm. In addition, a list of frequently asked questions regarding this NPRM may be found here.
Increasing numbers of veterans are returning from duty in Iraq, Afghanistan and other places around the world only to face substantial obstacles in finding employment. Today, in the spirit of ensuring that all Americans have equal access to good jobs and that America's workplaces are equitable, the Office of Federal Contract Compliance Programs (OFCCP) published a Notice of Proposed Rulemaking (NPRM). The NPRM recommends revisions that strengthen Federal regulations implementing the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (Section 4212), as amended, commonly referred to as VEVRAA.
OFCCP proposes several changes to the requirement that employers doing business with the Federal government engage in specific types of outreach and recruitment that target veterans. One proposal requires Federal contractors to evaluate annually the effectiveness of their efforts to ensure that protected veterans have access to employment opportunities. The NPRM also proposes requiring Federal contractors to establish and maintain quantitative data on the number of protected veterans they learn about through job referrals, the number of protected veterans applying for jobs, and the number of protected veterans they hire. OFCCP's proposal also requires contractors to establish annual hiring benchmarks based on availability data and other relevant information. These benchmarks will enable contractors to measure their success in recruiting, employing and retaining protected veterans.
Another proposal addresses self-identification. In light of the difficulty identifying a veteran protected by Section 4212, the NPRM suggests requiring Federal contractors to invite veterans to self-identify both pre-and post-offer of employment.
You can submit comments on OFCCP's NPRM either electronically at http://www.regulations.gov or by mail. The identification number (RIN) for this NPRM is 1250-AA00. If you are mailing or hand delivering comments, send them to Debra Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Indicate RIN number 1250-AA00. Comments must be received on or before June 27, 2011.

Robert Newland: OFCCP v Florida Hospital – Lessons for all the Contractor Community

As some of you may know by now, a favorable ruling to the OFCCP by an Administrative Law Judge creates an interesting enforcement environment for medical institutions, but also the contractor community in general.

Medical institutions that are part of medical services contracts or subcontracts with the federal government are likely to be viewed by the OFCCP as within their jurisdiction. In other words – say you are a medical services provider in an insurance company network and said company has federal contracts to provide medical care, then you will likely be viewed as “covered”. The ALJ has made clear that you are unlikely to be covered by AA obligations, only in the event where an insurance carrier has federal contract for “insurance services” (not medical care). It seems that the devil is in details of the language in the actual contract.

And while at first glance it may seem likely that insurance carriers may try to steer away from the language that creates AA obligations, it is also possible that the federal government may push for that language now that the Florida Hospital v OFCCP gives them their second beachhead in a few years in the battle to extend OFCCP coverage to the healthcare industry. Given the current economic environment, the healthcare industry may have little choice but to accept this, if they want to get the much needed business.

It is not new that the OFCCP wants to create a more proactive and aggressive agency. As such, don’t be surprised to see the OFCCP going after other industries that claim to be outside their jurisdiction. For now, if you are involved in a healthcare organization, you probably want to take a closer look at your contracts with insurance providers and contact the insurance companies to review their contracts with federal agencies – are the contracts crafted in a language that creates an obligation to provide insurance or medical care?

If you are part of one of those contracts where the language indicates that the deliverable between the company and the federal agency is to provide medical care, you will be better off by preparing an Affirmative Action Program.

For questions about your status as a federal contractor or how to prepare an Affirmative Action Program, don’t hesitate to call at 800-707-9250 Ext. 246, email me at Rnewland@AffirmativeActionServices.com, or visit our website:
www.AffirmativeActionServices.com.

Jim Higgins - Will We Ever Learn?

Why is it that some of the smartest minds, most creative leaders, and shrewd business people repeatedly make the same mistakes in the interest of minimizing costs? This is especially surprising knowing that they almost certainly will be found out at the cost of significant punitive/compensatory damages and the kind of negative press that can dramatically affect their brands. As my grandmother used to say, "They are penny wise but pound foolish!"

The OFCCP in a news release dated September 15, 2010, reported on a US Departmemt of Labor lawsuit against Tyson Fresh Meats--the largest supplier of premium beef and port--for systemic discrimination against women. It is alleged that Tyson "systematically rejected female job applicants at its plant in Joslin, Illinois." It is further alleged that Tyson utilized a hiring process and selection procedures that resulted in discrimination against women who were seeking entry-level positions.

If these allegations prove to be true, what will it cost Tyson? According to the OFCCP, the complaint requests that ALL of Tyson's federal contracts be canceled and that Tyson be required to provide complete relief which includes lost wages, interest, and other benefits of employment. This includes paying back wages to more than 700 women who are owed back wages and to give over 100 women the opportunity to take a position with the company.

How is it that obviously smart people have allowed their company to end up in this position? Does it suggest that they intended to discriminate against women? I believe the answer is "no". I also believe that those who live in glass houses should not throw rocks.

The reality of what happened with Tyson could have easily happened to any company. I believe that Tyson was probably going along doing its business and because their personnel selection system "seemed" to be working correctly, the became complacent. Believe it or not, this tendency toward becoming complacent towards things you are often exposed to is a fundamental part of human nature and psychologists have given it a name--The Availability Heuristic.

The reality is, I would bet, that Tyson had no idea that their selection system was improperly screening out females. However, the courts do not recognize "I didn't know" as a valid excuse for discrimination.

All employers should be on the alert against falling into the same trap as Tyson did. There are relatively simple steps you can take NOW to avoid costly litigation tomorrow. You should conduct a job analysis, identify the critical knowledge, skills and abilities, and link those to the actual content of your personnel assessment tools.

For more information or for help with your selection process, visit us at http://www.affirmativeactionservices.com/ or email Dr. Jim Higgins at JHiggins@AffirmativeActionServices.com.

Robert Newland - Limits Set on OFCCP’s Compliance Reviews

A recent ruling by an Administrative Law Judge effectively capped the period that can be covered during an OFCCP compliance review, more specifically limiting the period for which the agency can request information.

In the case of Frito-Lay v. OFCCP, the ALJ ruled that the period for which data can be requested is limited not only by 41 CFR Ch. 60-1.20(a)(1), but also the Federal Contract Compliance Manual (FCCM), a document outlining the rules of engagement for OFCCP compliance officers.

The OFCCP had asked Frito-Lay to submit contractor data for the two years after the initial compliance review period after identifying adverse impact. Frito-Lay refused to provide the data, stating the OFCCP Scheduling Letter only requests data for the previous AAP year and current AAP year, if more than six months into the current Plan.

According to Frito-Lay, the OFCCP regulations and the FCCM establish this as a temporal scope of the compliance review, and that in the case of potential discrimination; the OFCCP can go back two years from the date of the Scheduling Letter.

OFCCP argued that the regulations at 41 CFR Ch. 60-1.20(a)(1) grants them authority to request this information and that Frito-Lay cannot rely on the language of the FCCM to support their position.

In his ruling, ALJ Price stated the following key considerations to his decision in favor of Frito-Lay:
1. While there are ongoing contractor obligations in the preservation of data, there’s nothing on the regulations that require contractor to provide this information outside the time frame of the compliance review period.
2. The fact that the OFCCP repeatedly refers to the FCCM as the place to address issues like this accentuates Frito-Lay’s contention that it is valid guideline to determine how to proceed with the OFCCP’s request.
3. The FCCM instructs compliance officers to complete compliance reviews within 60 days from the receipt of an AAP, thus the regulations did not envision requesting data for two whole years after the date of the scheduling letter.

What happens next?
The OFCCP has appealed the ALJ decision is already discussing how to make changes to the FCCM. Until, and if that happens, you now have availed yourself of a ruling that clearly sets the boundaries for the OFCCP.

As a former OFCCP Compliance Officer I can tell you that many times we pushed the envelope when it came to extending the review period. The ruling by the ALJ outs a clear stop to that.

If you need help with an OFCCP audit or to learn about our services and free webinars, please visit www.AffirmativeActionServices.com.

Next Speaking Engagement

Our very own Robert Newland will be speaking at the 37th Annual SHRM Puerto Rico Conference.


Walking the AAP Minefield: Successful Auditing


Date: September 24, 2010
Venue: 37th Annual SHRM Puerto Rico Conference
Speaker: Robert Newland
Time: 10:45am - 12:00pm
Location: El Conquistador, Fajardo Puerto Rico

The OFCCP (Office of Federal Contract Compliance Programs) has increased its budget by 25%, which will expand the number of Affirmative Action auditors.  Last year they found remedies nearing $68 million - an icrease of over 30%.  If your organization is a beneficiary of ARRA (American Recovery and Reinvestment Act) funds, you are also more likely to get audited.  Learn to walk this AAP minefield with the advice of former OFCCP auditor and consultant Robert Newland

For more info, click here

EO 13,496 Compliance

Many people have asked my for the link to get this poster so here you go:

http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf

Please keep in mind that you only need the poster where you have employees that work directly in the federal contracts and employees that do not work directly in the contracts but their work may be contract-related. In addition, you also have to do electronic notifications if you communicate electronically with employees.

Lastly, don't forget you also need to communicate these obligations to subcontractors.

Affirmative Action Alerts by Newland Associates

Welcome to the first of our Affirmative Action Alerts. With so many changes in AAP/EEO regulations under the Obama Administration and the OFCCP, it is important for organizations to stay abreast of how these events can impact their compliance status.

We will send out periodical emails with our Affirmative Action Alerts for your benefit. These alerts will include:

- Information on changes to applicable laws, implementing regulations and policy directives.
- Alerts of proposed changes at the OFCCP or Congress so that you can make you opinion count.
- Schedule of upcoming educational opportunities on Affirmative Action

If you know of someone who would like to subscribe to the Affirmative Action Alerts, tell them to write to us at info@newland-associates.com where they can request it.

We will keep a blog with an archive of all the alerts here at www.AffirmativeActionAlerts.com where you can research issues relevant to your affirmative action needs.

Thank you. I hope you find the Affirmative Action Alerts beneficial. Please, let us know your thoughts on how to make them better for you.