Under the Microscope: How the
Government Will Examine Your
Section 503 and VEVRAA Compliance
Beth Ronnenburg, SPHR, SHRM-SCP
President
Berkshire Associates Inc.
About Berkshire Associates
For over 30 years Berkshire has offered services
and software to overcome HR challenges.
Affirmative Action
• Plan Preparation Services
• OFCCP Audit Support
• Adverse Impact Analyses
• BALANCEaap Software
Applicant Management
• Compliance Audit
• Definition of an Applicant
• Process and Procedure
Development
• BALANCEtrak Software
Compensation
• Base Compensation Planning
• Market Analysis
• Salary Equity Analyses
• Job Descriptions
• BALANCEpay Software
Training
• Affirmative Action
• Applicant Tracking
• Disability & Veterans
Compliance
• Diversity & Inclusion
Objective
With recent statutory and regulatory changes,
employers are facing greater scrutiny of the impact
their employment practices have on Individuals
with Disabilities (IWD) and Protected Veterans
(PV). This informative session will review proven
strategies for compliance based on recent Office of
Federal Contract Compliance Programs (OFCCP)
and Equal Employment Opportunity Commission
(EEOC) enforcement activities under VEVRAA,
Section 503 of the Rehabilitation Act of
1973, and the ADA.
Agenda
• Overview of 503 and VEVRAA Requirements
• Best Practices for Voluntary Self-Identification,
Outreach Evaluation, and 44k Data Analytics
• OFCCP and EEOC Enforcement
• Responding to OFCCP’s New Scheduling
Letter
– Reasonable accommodation data
– Review of personnel processes
– Qualification standards
Glossary
• VEVRAA—Vietnam Era Veterans Readjustment Assistance
Act
• Section 503—Section 503 of the Rehabilitation Act
• IWD—Individuals with Disabilities
• PV—Protected Veterans
• 44k Data Analytics—Data regarding number of applicants,
hires, job openings, and jobs filled required by VEVRAA and
Section 503 regulations
• ESDS—Employment Service Delivery System
• EEO—Equal Employment Opportunity
• AA—Affirmative Action
• OFCCP—Office of Federal Contract Compliance Programs
• EEOC—U.S. Equal Employment Opportunity Commission
Refresher—What Was Required by
March 24, 2014
• EEO tagline modification (EEO/AA Employer
including Vets and Disabled)
• EEO is the Law poster—include with application
process and online
• Online accessibility language on Careers webpage
• Updated language in purchase orders and contracts
• Notify ESDS of request for priority referrals and list
in format acceptable to ESDS
• Revise record retention policies
• Adopt new PV categories in EEO/AA policy
Refresher—What is Required by/in
First AAP Year
• Invite applicants to voluntarily self-identify
(pre/post offer)
• Conduct an initial self-identification survey of
employees
• Post EEO/AA policy statement with top executive
support and include in handbook
• Develop procedures to prevent IWD and PV
harassment
• Train employees engaged in key personnel activities
• Notify subcontractors, vendors, and union of AA
commitment and request “appropriate action”
• Document periodic review of personnel
processes
Refresher—What is Required by/in
First AAP Year (cont.)
• Document schedule for mental and physical
qualifications review
• Assess and document the effectiveness of outreach
and recruitment efforts annually
• Document actions taken to comply with the audit and
reporting system obligations
• Collect 44k data analytics
• Conduct an annual workforce assessment and apply
the 7% IWD goal to each job group or to the
workforce as a whole for smaller contractors with
100 or fewer employees
• Establish, document, and begin applying an
annual Veterans hiring benchmark
Best Practices for Voluntary Self-ID
• Develop communication plan for employee
survey
– Timing of request
– Use of top level officials with known disabilities
• Consider asking employees to update all EEO
data
– Only collect PV status not specific PV categories
• Electronic survey when possible but remember
OMB form for disability status data cannot be
changed
• For employees without access to computers:
– Mail survey with return envelope
– Distribute at staff meeting
– Temporary computer kiosks
Required Outreach Evaluation
• Document each annual evaluation, including
criteria used and conclusion
• Must evaluate 44k data analytics for prior
three years as part of evaluation
• Evaluation must be reasonable, as determined
by OFCCP
• If totality of efforts are not effective, contractor
must implement alternative efforts
Best Practices For Outreach Evaluation
• Remember regulations allow qualitative or
quantitative review as long as contractor reviews
44k data analytics as part of the process
• Consider adopting a multi-pronged approach that
includes review of referral data and more
subjective criteria about “value” of recruiting
effort
• Consider adopting fewer, more meaningful
recruitment efforts that can be actively monitored
• Create documentation to show a strong
relationship between recruiting sources and
company
• Be careful about being too critical of
efforts in written AAP
Outreach Evaluation
Required 44k Data Analytics
• Contractors must “document the following
computations or comparisons on an annual
basis”:
– Number of IWD or PV applicants
– Total number of job openings and jobs filled
– Total number of applicants for all jobs
– Number of IWD and PV hired
– Total number of applicants hired
What Does This Data Collection
Look Like?
• Still unclear what data OFCCP expects
• Should contractors report on all candidates or
only Internet applicants?
• FAQs suggest external AND internal
candidates should be included BUT common
practice for OFCCP is to remove internal
candidates from EO 11246 hiring IRAs
• FAQs also suggest OFCCP will compare
applicants to jobs filled BUT jobs filled
includes non-competitive placements
What Does This Data Collection
Look Like?
Best Practices for 44k Data Analytics
• Review recordkeeping practices to confirm
you can report on this data
• 44k data analytics should be a separate AAP
report that can be removed if applicant or
employee asks to review plans
• Consider conducting analyses of 44k data
under attorney-client privilege
• Use Internet Applicant Rule when
reporting applicant numbers
Agency Enforcement—OFCCP
• Focus has shifted from education to enforcement,
but agency is still primarily looking at technical
compliance issues
• Agency is expecting data—must educate OFCCP
about your plan date and impact on compliance
• Since FY 2011, OFCCP has issued 142 notices of
violation for failure to accommodate
• Since FY 2011, two financial agreements and
two conciliation agreements for unlawful
medical inquires (Oregon, Louisiana,
Arizona, and Washington)
Agency Enforcement—EEOC
• Focused on impact of broad-based policies on
IWD for several years (e.g. leave policies, absence
control and attendance policies, medical
inquiries)
• August 2015—$2.8 million settlement with Target
– Challenged use of three employment assessments for
exempt positions, including one as an unlawful medical
inquiry under the ADA
• July 2011—$20 million settlement with Verizon
– Challenge to no fault attendance policy under ADA
• September 2009—$6.2 million settlement
with Sears
– Challenge to fixed leave policy under ADA
OFCCP’s Revised Scheduling Letter
• Effective for all audits after October 14, 2014
• Requires submission of:
– Results of outreach and recruitment evaluation
– 44k data analytics and six month update
– IWD utilization analysis and six month update
– Veteran benchmark used
• Contractors are not required to report this
data until first AAP year after March 24,
2015, but OFCCP is asking for update
data for earlier plan dates
OFCCP’s Revised Scheduling Letter (Cont.)
• Also requires submission of:
– Reasonable accommodation policies
– Information regarding reasonable
accommodation requests and resolutions
– Documentation of audit and reporting system
– Most recent assessment of personnel processes
and physical and mental qualifications
• Date of last scheduled assessment, changes made,
and date of next scheduled assessment
• All contractors should have this data
now!
Reporting Reasonable Accommodations
• Provide accommodation policy if you have
one and follow it; otherwise, describe informal
process used
• Consider providing examples rather than
complete list
• Do not provide employee name or other
identifying info
• Carefully review any accommodation
requests that were denied before
providing
Review of Personnel Processes
• Purpose–to confirm contractors provide equal
employment opportunity to IWD and PV
• Review can be qualitative and informal, BUT
must be documented
– Processes used to collect IWD and PV status
– Selection decisions where IWDs and PV considered
– Requested and provided accommodations
– Best Practice: Assess online application, time and
attendance, and employee intranet sites for
compatibility with assistive technology
• Contractors should keep records of
reviews and changes made
Managing IWD Performance
• Section 503, 41 CFR 60-741.44(d): When
employee has significant difficulty performing
job and it is reasonable to conclude the
performance problem may be related to a
known disability, contractor “shall”:
– Confidentially notify the employee of the
problem
– Ask if the problem is related to the disability,
and if accommodation is needed
Managing IWD Performance (cont.)
EEOC Guidance on Applying Performance and
Conduct Standards: “Should an employer mention
an employee’s disability during a discussion about
a performance or conduct problem if the employee
does not do so?
Generally, it is inappropriate for the employer to
focus discussion about a performance or conduct
problem on an employee’s disability . . .
[E]mphasizing the disability risks distracting from
the focus on performance or conduct, and in some
cases could result in a claim under the ADA
that the employer “regarded” (or treated)
the individual as having a disability.”
Mental and Physical Qualifications
• Purpose–to ensure IWD are not unfairly screened
out from positions
• Must review mental and physical qualifications to
ensure “job-related and consistent with business
necessity”
• Types of reviews:
– Review all job descriptions annually
– Prioritize jobs with high volume hiring, with
significant physical or mental requirements,
and any that include testing component
– Review requirements when posted or
when accommodation requested
Common OFCCP Follow-Up Requests
• Sample voluntary self-identification forms
• Description of applicant tracking process
– Data regarding number of applicants with
unknown EEO data
– Focus on when data is being collected and how
• Updated EEO/AA policies showing top official
support in handbook
• Documentation of all required postings
– EEO is the Law Poster is online and posted
Common OFCCP Follow-Up Requests
• Updated purchase orders and subcontracts
– Sample copy
– Last three subcontracts and purchase orders
– All contracts and purchase orders during review
period
• Sample union, vendor, and recruitment letters
• Job listings and priority referral notification to
ESDS
– Samples
– All listings since date of Scheduling Letter
– All listings for hires made during review
period
Common OFCCP Follow-Up Requests
• Reasonable accommodation process for online
application systems
– OFCCP may test process! Be sure you check first!
• Medical standard questions
– Use of pre-employment physicals
– Mental and physical job requirements
– Confidentiality of records
• Blank Employment Application
– EEO/AA tagline
– Military history questions
– Use of screens (criminal, credit, physical
exams)
What are the Agencies Seeing?
OFCCP
1.
2.
3.
4.
5.
6.
Failing to list jobs with ESDS in acceptable formats
No written IWD or Vets AAP
Incorrect/missing EEO clause in purchase orders
Self-ID forms are not offered pre- and post-offer
Outreach and recruitment is not adequately documented
Hiring screens that are not being applied consistently
EEOC
1. Application of broad-based policies to IWD—fixed leave,
attendance policies, absence control requirements
2. Individual failure to accommodate, including
pregnancy
3. Unlawful medical inquiries during hiring and
employment
Key Takeaways
• Prepare for increased focus on 503 and VEVRAA
requirements, with OFCCP expecting more detail
than contractors may have expected
• Refocus on all technical requirements of AAP
process—implement the easy requirements now!
• Be prepared to explain the steps you have taken
to comply with new VEVRAA and 503
requirements
• Improve your recordkeeping processes
–
–
–
–
44k data analytics
Outreach evaluation
AAP auditing activities
Reasonable accommodations
Key Takeaways
• Review job descriptions
– Distinguish between basic qualifications (Internet
Applicant Rule) and essential functions (ADA)—they
are not always the same!
• Evaluate online prescreening tools
– Confirm screens are job-related, focus on willingness
rather than ability, ask about BQs first, and make clear
that tasks can be performed with or without reasonable
accommodation
• Review timing and nature of medical inquiries
– Limit scope of requests—most are too broad!
• Review leave and attendance policies
QUESTIONS?
Thank You!
For a copy of this presentation, and additional
resources, please visit:
info.berkshireassociates.com/Beth
For more information about this presentation,
or Berkshire Associates, please contact
Beth Ronnenburg at 800.882.8904, ext. 1202 or
[email protected]
Additional Resources
Office of Federal Contractor Compliance
Programs:
http://www.dol.gov/ofccp/
Equal Employment Opportunity Commission:
http://www.eeoc.gov/
Berkshire’s HR and Affirmative Action Blog:
info.berkshireassociates.com/balanceview