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New OFCCP Activities and Our Compliance Support

eQuest Compliance Update

San Ramon, CA — January 20, 2012 — We are sending this communication for six reasons: one to ask for your help, two to make a recommendation, and lastly to provide you with timely information about OFCCP activity and compliance support.

  1. For the benefit of all government contractors, please take the time to complete the survey below requesting feedback about the implications of the proposed changes to Section 503 of the Rehabilitation Act (see below communication). On December 20, 2011 we sent out a compliance update on the proposed revisions. As communicated in that update and reiterated below, the changes are significant and will entail a lot of time and effort on the part of all contractors. Since the public comment period is open until February 7th, the Equal Employment Advisory Committee is seeking contractor information to use in providing collective feedback on behalf the contractor community.
  2. We are recommending that you post your EEO/AA policy on your website. The OFCCP has been requesting evidence that all employees and applicants have access to the company policy. Providing the policy on a company intranet or employee handbook suffices for internal communication but not for external communication to applicants.
  3. In December the OFCCP sent out Corporate Scheduling Announcement Letters to contractors advising them in advance of establishments that could be under review during the FY. Failure to receive this letter does not mean that you are safe for this year. It has come to our attention that some of the establishments identified in the letters may be in the midst of an audit or have undergone a compliance evaluation in the past 24 months. The following OFCCP FAQ provides further guidance.

Source: OFCCP Federal Contractor Selection System (FCSS) FAQ – http://www.dol.gov/ofccp/regs/compliance/faqs/fcssfaqs.htm#Q7

Can a contractor establishment that was evaluated recently be scheduled for another evaluation?

A contractor establishment that has undergone a compliance evaluation during the 24 months prior to the development of the FCSS list or a contractor establishment that is still subject to reporting obligations as the result of a prior compliance evaluation should not be scheduled for a compliance evaluation. If an establishment evaluated in the past 24 months is selected for a compliance evaluation, the establishment’s representative should call the local OFCCP office issuing the scheduling letter.

Notwithstanding this limitation, OFCCP may schedule a follow-up compliance evaluation if there is an indication that the contractor establishment is not complying with either reporting requirements or agreed upon actions that resulted from an active Conciliation Agreement. OFCCP also may schedule a compliance evaluation when it receives an individual or class complaint, or what it determines to be a credible report of an alleged violation of a law or regulation enforced by OFCCP.

  1. The new interactive OFCCP Employment Resource Referral Directory (ERRD) is available. The Directory lists governmental and non-government not-for-project organizations to that provide job referral services to veterans, individuals with disabilities and minority groups. Organizations are listed by state in alphabetical order and searches by region or state can be conducted; however, our attempt to search by state was unsuccessful and the entire country was provided! To view the directory – http://www.dol-esa.gov/errd/index.html
  2. Veterans Outreach – to support our ongoing effort to identify veterans sources for recruiting, we have identified the following:
  3. OFCCP Compliance Activity Settlement – On January 12, 2012, the OFCCP announced that it has settled charges of racial discrimination with Houston-based defense contractor JacintoPort International LLC. In 2005, the OFCCP conducted a compliance review of JacintoPort, a wholly-owned subsidiary of Seaboard Corporation. In 2006, the company was cited, in a conciliation agreement, for failing to implement an applicant tracking system for new hires and for failing to develop and execute action-oriented programs to recruit women and African Americans. In reviewing the progress reports required by the conciliation agreement, the OFCCP found that JacintoPort was giving preferential treatment to Latino applicants and systematically discriminating against African Americans and Caucasians seeking longshoreman positions. As a result, JacintoPort has agreed to pay $219,000 in back wages and interest to 48 African American and 21 Caucasian applicants and make 17 job offers available to members of the original class as longshoreman positions become available.

Federal Contractor Survey on OFCCP’s Proposed Section 503 Regulations

FEDERAL CONTRACTOR SURVEY ON OFCCP’S PROPOSED SECTION 503 REGULATIONS

Washington, DC — January 19, 2012

As many of you know, OFFCCP recently released an NPRM on Proposed Section 503 Regulations that could have drastic implications for federal contractors. CCE has been working with the Equal Employment Advisory Committee (EEAC) and the U.S. Chamber of Commerce on the development of a contractor survey to assess the potential burdens and utility of this regulatory change. We urge you to participate in the survey. The formal invitation from Joe Lakis, Jr. Vice President, Policy and Strategic Initiatives Equal Employment Advisory Council (EEAC) can be found below.

CLICK HERE TO TAKE THE SURVEY

About the Survey: The survey is long, spanning a total of 74 questions. It also must be completed in one session, which means that you’ll need to gather and prepare all of the responses you intend to submit prior to completing it. If you do not know the answer to a question, that’s okay. Please simply skip those questions that you can’t or prefer not to answer. All survey responses will be kept completely confidential. No report will list the specific companies that participated in the survey or identify respondent characteristics in a way by which respondent identity could be inferred.

Invitation from Joe Lakis:

As you know, the Office of Federal Contract Compliance Programs (OFCCP) has proposed significant changes to its regulations implementing Section 503 of the Rehabilitation Act of 1973, and which establish the nondiscrimination and affirmative action obligations of federal contractors regarding individuals with disabilities. These changes would require covered employers to do the following:

  • set and work toward achieving a seven percent (7%) utilization goal for individuals with disabilities in all of their affirmative action program (AAP) job groups;
  • engage in certain mandatory, minimum outreach and recruitment activities, including negotiating, signing, implementing, and monitoring compliance with a minimum of three written “linkage agreements” each year;
  • immediately begin listing most of their externally sourced open positions with state and local workforce offices;
  • invite all job applicants to voluntarily self-identify disability status at the time of application, and then again post-offer;
  • annually and anonymously resurvey all incumbent employees as to their disability status;
  • prepare and provide a written confirmation acknowledging receipt of every request for reasonable accommodation;
  • prepare and provide a written confirmation of any denial of a reasonable accommodation request;
  • collect, calculate, and maintain for five years ten (10) disability-related data points, including referral ratios, applicant ratios, hiring ratios, and “job fill” ratios; and
  • develop and maintain confidential “career files” on each and every known individual with a disability, to include a separate written statement prepared every time such an individual was considered but rejected for an employment opportunity.

OFCCP estimates that the total cost of compliance with these requirements will be roughly $473 per establishment per year. The agency has given stakeholders until Tuesday, February 7, 2012 to submit comments on its proposal, including comments on the accuracy of this burden estimate.

To assist EEAC in developing our comments, we are asking each of you to respond to our online Survey of Employers on the Burdens and Utility of OFCCP’s Proposed Affirmative Action Requirements for Persons with Disabilities (www.eeac.org/web/survey). The survey seeks information, based on your knowledge and experience, that will be critical in helping OFCCP fully understand the true economic impact of the changes it wants to make. Underscoring the significance that the broader employer community attaches to OFCCP’s proposal, two other major employer groups – the U.S. Chamber of Commerce and the Center for Corporate Equality (CCE) – are cosponsoring the survey and are asking their members to provide input as well.

Because OFCCP has given the public only until February 7, 2012 to review, analyze, and comment on its proposal, we need your responses to our survey no later than Tuesday, January 31, 2012.

Best regards,

Joe Joseph S. Lakis, Jr.
Vice President, Policy and Strategic Initiatives
Equal Employment Advisory Council

If you have any questions about the survey, or about OFCCP’s proposed Section 503 regulations, please contact Jerilyn Whitmer at jerilyn.whitmer@cceq.org.

Thank you very much for your assistance.

The foregoing has been prepared for the general information of clients and friends of eQuest and Workplace Dynamics LLC. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you would like to contact Workplace Dynamics they may be reached at www.workplace-dynamics.com.