HR Strategies, LLC
Monthly Strategies
Time to Update Your AAP’s
Many companies use the calendar year (January to
December) as the plan dates for their Affirmative Action
Plans (AAPs). For companies that do so, it is important
to remember that current year AAPs for January 1, 2017,
thru December 31, 2017, will expire on December 31,
2016.
Under federal law, government contractors and
subcontractors with 50 or more employees who have
entered into at least one contract of $50,000 or more
with the federal government must prepare and maintain a
written affirmative action program, which must be
developed within 120 days from the commencement of
the contract and must be updated annually. Many
states also have affirmative action program requirements
for state government contractors.
Depending upon the size of the government contracts at
issue ($50,000, $100,000, or more), government
contractors are required to develop affirmative action
programs to comply with the regulations that support
three separate federal laws. All three of these laws
prohibit employment discrimination and require
contractors to exercise good faith efforts so that certain
protected classes have the opportunity to be hired and
advance in employment. The three laws are: Executive
Order 11246, which prohibits discrimination on the basis
of race, color, religion, sex, or national origin; the
Rehabilitation Act of 1973, which, prohibits
discrimination on the basis of disability; and, the
Vietnam Era Veterans Readjustment Assistance Act of
1974 (VEVRAA), which prohibits discrimination
against certain classes of veterans.
Additionally, new federal regulations that took effect in
2014 require identification and an evaluation of the
company’s good faith efforts to recruit protected
veterans and disabled individuals. This obligation will
necessitate the contractor to list all of the recruiting
efforts the company made during the January 1, 2016,
thru December 31, 2016, time period to recruit veterans
and disabled individuals — along with an evaluation of
the effectiveness of each effort (for example, “attended
job fair on 12/2/16 at Veterans Job Fair, received 15
applications/resumes, interviewed 6 persons, hired 2
persons”).
Volume 14, Issue 1
January 1, 2017
Failure to comply with the non-discrimination or
affirmative action provisions in a contract is considered
a violation of the government contract. The Department
of Labor’s Office of Federal Contract Compliance
Program (OFCCP) is the agency with authority to
enforce these laws by auditing a company’s AAPs and
employment practices. The OFCCP has the authority to
conduct compliance evaluations, which may consist of
an off-site review of records and/or an on-site review of
records and interviews. In every OFCCP audit, the
Compliance Officer will request to review the current
year AAP and possibly the previous two year’s AAP
— so it is extremely important to ensure that all
AAPs are properly updated each year and retained.
Job References
The first question that needs to be answered is whether
or not your organization is going to provide references
for former or current employees. It is important to
consider the legal ramifications that may occur
depending on how the reference is given. When
providing job references, employers should keep the
following in mind:
Be mindful when giving information over the
phone. As a general rule, employers should not provide
job reference information over the phone. The reason is
that you do not know who is calling and you need to be
absolutely certain of the caller and reason for the call. A
good general practice is to respond to calls about
employees with a statement such as, “I’m sorry, but we
do not release information about current or former
employees over the phone. However, we will be glad to
furnish any information that your applicant authorizes us
in writing to release to you.” Then, suggest that the
caller get the applicant to sign a release/authorization
form.
Provide only facts. When giving a job reference, release
only factual information. Factual information is
something you can prove, either with witnesses or
documentation. Facts do not include opinions, value
judgments, or moral criticism.
Supply only the information requested. Unless there is
a compelling need to do so, do not volunteer additional
information that is not related to the information
requested by the prospective new employer.
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Avoid inflammatory language. Inflammatory language
can make the former employee feel he or she is being
unfairly attacked. Examples of inflammatory language
and suggestions for better communications follow:
Inflammatory: “We fired Joe for stealing.”
Non-inflammatory: “We discharged Joe for failing to
properly account for items entrusted to him. Items A and
B were checked out to him, they turned up missing, and
he failed to give a satisfactory explanation for what
happened to them. Under our policy, that was a
dischargeable offense.”
Inflammatory: “Jane was fired for using drugs. We do
not tolerate druggies here.”
Non-inflammatory: “Jane failed a drug test on (date).
The initial positive result was confirmed. Medical
review of the result revealed no satisfactory explanation
for the presence of the substance that was found.
Employees who fail a drug test under such
circumstances are subject to termination.”
Inflammatory: “Frank was terminated for sexually
harassing an employee.”
Non-inflammatory: “Frank was terminated for violating
our policy prohibiting harassment in the workplace.”
OSHA Finally Issues WalkingWorking Surfaces Rule
On Nov. 17, OSHA issued a final rule revising and
updating its general industry walking-working surfaces
standards specific to slip, trip and fall hazards. The final
rule becomes effective on January 17, 2017 and includes
revised and new provisions addressing fixed ladders,
rope descent systems and fall protection systems.
The rule also establishes requirements on the design,
performance and use of personal fall protection systems
in general industry. In addition, employers must now
train employees on identifying and minimizing fall
hazards, using fall protection systems, and maintaining,
inspecting and storing fall protection equipment.
The final rule allows employers to select the fall
protection system that works best for their environment
instead of requiring the use of guardrail systems, which
the current rule mandates.
300
250
StandardArticleFl
Employers now can
choose from a range of accepted options, including
personal fall arrest, safety new system, ladder safety
systems, travel restraint and work position systems.
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OSHA has permitted the use of personal fall protection
systems in construction since 1994, and the final rule
adopts similar requirements for general industry.
The final rule codifies a 1991 OSHA memorandum that
permits employers to use rope descent systems (RDS)
and adds a 300-foot height limit for their use. It also
requires building owners to affirm in writing that
permanent building anchorages used for RDS have been
tested, certified and maintained as capable of supporting
5,000 pounds for each worker attached.
The final rule also requires that ladders be capable of
supporting their maximum intended load and that mobile
ladder stands and platforms be capable of supporting
four times their maximum intended load.
Moreover, each ladder must be inspected before initial
use in a work shift to identify defects that could cause
injury.
For fixed ladders that extend more than 24 feet, the rule
phases in ladder safety or personal fall arrest systems
and phases out the use of cages or wells. For portal
ladders, employers must ensure that rungs and steps are
slip resistant; portable ladders used on slippery surfaces
are secured and stabilized; portable ladders are not
moved, shifted or extended while a worker is on them;
top steps and caps of stepladders are not used as steps;
ladders are not fastened together to provide added length
unless designed for such use; and ladders are not placed
on boxes, barrels or other unstable bases to obtain added
height.
OSHA anticipates that the changes provided in the final
rule will prevent 29 fatalities and 5,842 lost-workday
injuries annually.
Timeline: The final rule becomes effective on Jan. 17,
2017. Some requirements in the new rule have
compliance dates after the effective date including:
Ensuring exposed workers are trained on fall hazards
and the use of fall protection equipment (6 months).
Inspecting and certifying permanent anchorages for
rope descent systems (1 year).
Installing personal fall arrest or ladder safety systems
on new fixed ladders over 24 feet and on replacement
ladders/ladder sections, including fixed ladders on
outdoor advertising structures (2 years).
Ensuring existing fixed ladders over 24 feet, including
those on outdoor advertising structures, are equipped
with a cage, well, personal fall arrest system or ladder
safety system (2 years).
Replacing cages and wells (used as fall protection) with
ladder safety or personal fall arrest systems on all fixed
ladders over 24 feet (20 years).
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If your organization would like to learn more about the
items in this newsletter, please feel free to contact Tricia
Clendening at 302.373.1784 (cell) or 302.376.8595
(office) or [email protected].
Monthly Strategies