Employment Law Blog

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Dec 19, 2013

Affirmative Action: OFCCP updates FAQs on new disability and veterans rules

Affirmative ActionDisability 

The Office of Federal Contract Compliance Programs (OFCCP) has released more FAQs on its web pages providing guidance on the new rules regarding protected veterans and people with disabilities.

The Office of Federal Contract Compliance Programs (OFCCP) has released more FAQs on its web pages providing guidance on the new rules regarding protected veterans and people with disabilities. Some of the answers are helpful; others are downright baffling. First, the helpful ones:

• In job ads, when you indicate that you are an Equal Opportunity Employer, OFCCP says using the initials “D” to indicate “disability” and “V” to indicate “protected veteran status” isn’t sufficient, because the average job seeker won’t know what those initials mean. But it’s okay to use “disability” and “vet.” Therefore, Vigilant suggests that at a minimum, your tagline should say “Equal Opportunity Employer, including disability and vet.” This takes effect for all covered federal contractors on March 24, 2014.

• The new hiring benchmark for protected veterans applies to the total workforce at each establishment. We understand this to mean that you may use different benchmarks for each facility, but we suggest sticking to the OFCCP’s 8 percent figure rather than trying to craft your own using available statistics.

• For the new applicant/hire data collection requirements that require you to track the total number of job openings and number of jobs filled, job openings means “the number of individual positions advertised as open in a job vacancy announcement or requisition.” For example, if you place a single job ad for entry-level workers, intending to fill 5 positions, but you only fill 4, then you would note this as 5 openings and 4 jobs filled. From a practical standpoint, this means you will need to keep track of any situations where you advertise the job but ultimately decide not to place anyone in the position.

Next, the puzzlers:

• “Jobs filled” includes “all jobs the company filled by any means,” including new hires, promotions, transfers, and reassignments. This appears to require you to keep track of all movement of any kind into or within your organization, and report a combined total figure. One reason this is a strange interpretation is that the regulation containing the new data collection requirements begins by saying that you must document “computations or comparisons pertaining to applicants and hires on an annual basis….” In the FAQs, the agency apparently has expanded the scope of this data collection beyond the normal definition of applicants and hires, to include both internal and external job placements.

• “Hired” refers to both internal and external applicants “who are hired through a competitive process, including promotions.” Once again, the OFCCP appears to have created a whole new definition of “hired” – now it means both hires and promotions, as long as they are done through a competitive process.  

Tips: The new FAQs aren’t binding authority, and time will tell whether the agency sticks with their rather bizarre interpretation of the new data collection requirements regarding protected veterans and people with disabilities. The hiring benchmarks and data collection requirements take effect on March 24, 2014, or upon the beginning of your next affirmative action plan (AAP) year, if you already have a written AAP for veterans/disabilities in place on the effective date. Vigilant will keep an eye on any further developments.

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