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Veterans Affirmative Action Requirements: The New Rules Mickey Silberman (303) Jennifer L. Seda (303) Jackson Lewis Presents for The INDUSTRY LIAISON GROUP 2012 National Conference
ABOUT JACKSON LEWIS Jackson Lewis LLP is dedicated to representing management exclusively in workplace law and related litigation. With 48 offices and almost 700 attorneys nationwide, the firm has a national perspective and sensitivity to the nuances of regional business environments. Guided by the principle that a positive work environment results in enhanced morale and increased productivity, the firm devotes a significant portion of its practice to management education and preventive programs. This approach helps limit exposure to grievances, charges and lawsuits. © 2012 Jackson Lewis LLP 2
ABOUT THE AFFIRMATIVE ACTION PRACTICE GROUP © 2012 Jackson Lewis LLP 3 We have unparalleled experience preparing AAPs and defending them before the OFCCP in all industries and areas of the country. Our diverse team of 35 attorneys, paralegals, and support staff prepares approximately 2,500 AAPs a year. Since 2010, we have defended over 250 OFCCP audits, including successful defense of Corporate Management (“Glass Ceiling”) Compliance Evaluations. As a law firm, we offer more than consulting services, we offer strategic thinking and sophisticated legal representation.
ABOUT MICKEY SILBERMAN 4 Mickey is the Managing Partner of the firm’s Denver office and Chair of the Jackson Lewis National Affirmative Action Practice Group. Mickey represents management exclusively in all areas of employment law and specializes in EEO, affirmative action and diversity. Mickey spends much of his time counseling employers on complex, “real world” issues relating to Equal Employment Opportunity, including pay equity. He has helped employers develop strategic compliance processes relating to pay systems, applicant tracking, recruitment, pre-employment testing, performance assessment, succession planning, etc. © 2012 Jackson Lewis LLP
ABOUT JENNIFER SEDA 5 Jennifer is a senior attorney in the firm’s Affirmative Action Practice Group in the firm’s Denver, Colorado office. Jennifer represents management exclusively in all areas of employment law and specializes in EEO, affirmative action and applicant tracking. Jennifer works with employers to prepare approximately 60 OFCCP audit plans throughout the country and prepares approximately 300 affirmative action plans each year for employers. Jennifer also spends a significant amount of time counseling employers about the strategic development and implementation of applicant tracking systems. © 2012 Jackson Lewis LLP
Proposed Revisions to VEVRAA Regulations © 2012 Jackson Lewis LLP 6
DATA COLLECTION OFCCP proposes that contractors be required to track and analyze data concerning veterans, including: Ratio of priority referrals to total referrals (referral ratio); Ratio of jobs filled to job openings; Ratio of protected veteran applicants to all applicants (applicant ratio); and Ratio of protected veterans hired to all hires (hiring ratio). Contractors will be required to invite applicants to self- identify their protected veteran status both before and after an offer of employment is extended. © 2012 Jackson Lewis LLP 7
HIRING BENCHMARKS Contractors will be required to establish annual hiring benchmarks based upon: The average percentage of veterans in the civilian labor force in the state(s) where the contractor is located; The number of veterans who were participants in the employment service delivery system in the state(s) where the contractor is located for the previous four quarters; The previous year’s referral, applicant and hiring ratios; The contractor’s self-assessment of its recruitment and outreach efforts; and Other factors including the nature of the contractor’s job openings and/or its location. © 2012 Jackson Lewis LLP 8
ADDITIONAL REQUIREMENTS Formal Linkage Agreements – Contractors will be required to establish three linkage agreements enlisting assistance and support in recruiting and developing training opportunities for protected veterans. Increased Outreach and Annual Evaluation – Contractors will be encouraged to supplement current required outreach efforts (OFCCP has a list of suggestions) and required to perform an annual evaluation of outreach and recruitment efforts. Document Retention – Five years. © 2012 Jackson Lewis LLP 9
ADDITIONAL REQUIREMENTS Internal Dissemination – Contractors will be required to maintain and disseminate an affirmative action policy for qualified protected veterans through a variety of channels. Training – Contractors will be required to provide training on the benefits of employing protected veterans, appropriate sensitivity and legal responsibilities. All personnel involved in the recruitment, screening, selection, promotion, disciplining and related processes must be trained. © 2012 Jackson Lewis LLP 10
Current OFCCP Veteran and Disabled Enforcement © 2012 Jackson Lewis LLP 11
SAMPLE OFCCP VETERAN REQUESTS State job postings during the review period Three years of VETS-100/VETS-100A Reports Self-ID forms Executed contracts or purchase orders with correct language © 2012 Jackson Lewis LLP 12
SAMPLE OFCCP VETERAN REQUESTS (CONT.) Posting informing employees when/where they can view the AAP Invitation to veterans to self-identify and information on where posted List of employees who have identified as veterans (often in conjunction with accommodations requested) List of applicants who have identified as veterans, hired (yes/no) and if not, why not © 2012 Jackson Lewis LLP 13
VETERANS CONSIDERED FOR ALL OPENINGS? In an OFCCP audit out of the Pacific Region, OFCCP has sought to enforce regulations requiring “careful, thorough, and systematic consideration” of veterans for all positions Review of personnel processes. The contractor shall ensure that its personnel processes provide for careful, thorough, and systematic consideration of the job qualifications of applicants and employees who are known special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other protected veterans for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available. 41 CFR (b). © 2012 Jackson Lewis LLP 14
SAMPLE OFCCP DISABILITY REQUESTS Leave and accommodation policies Job descriptions (for medical and physical requirements) Information on review of medical and physical requirements Employees or applicants who have been denied promotion or hire due to medical or physical job requirements Online accessibility © 2012 Jackson Lewis LLP 15
SAMPLE OFCCP DISABILITY REQUESTS (CONT.) Accommodation request list (name, date of hire, request, granted (yes/no), if not, why not) Disability leave list (name, job title and salary before leave and job title and salary after leave) Maternity leave list (name, job title and salary before leave and job title and salary after leave) Disabled applicant list, hired (yes/no), and if not, why not © 2012 Jackson Lewis LLP 16
How to Get Proactive Despite the Uncertainty © 2012 Jackson Lewis LLP 17
Even though proposed regulations have not been approved yet, OFCCP aggressively scrutinizes employer good faith outreach efforts to veterans and the disabled We cannot wait until the regulations are finalized to start reviewing and bolstering good faith efforts Employers must be able to demonstrate a commitment to outreach. Employers who appear to have just gone through the motions will face greater scrutiny If OFCCP finds the contractor was deficient in recordkeeping and/or outreach, the Agency will issue technical violations 18 START THINKING ABOUT GOOD FAITH OUTREACH EFFORTS... NOW © 2012 Jackson Lewis LLP
Identify at least one strong diversity source for females, minorities, disabled and veterans Post jobs with appropriate state delivery system Monitor the number and quality of applicants referred by diversity recruitment sources and, as appropriate, change these sources 19 HOW TO BOLSTER GOOD FAITH OUTREACH EFFORTS © 2012 Jackson Lewis LLP
OTHER THINGS TO THINK ABOUT RIGHT AWAY Timely file EEO-1 and Vets 100/100A reports Do not ask for veteran or disability status of applicants Include an online accessibility statement on website Review medical and physical job requirements on a regular basis Send annual letters to vendors and subcontractors © 2012 Jackson Lewis LLP 20
OTHER THINGS TO THINK ABOUT RIGHT AWAY (CONT.) Update purchase order to include EO 11246, VEVRAA, Section 503 and EO Keep maternity leave, disability leave and accommodation request documentation in a central place that will allow you to respond to requests quickly “Careful, thorough and systematic” consideration of known covered veterans for hiring, training and promotion opportunities © 2012 Jackson Lewis LLP 21
Thank you for attending! 22 Please contact us with any questions: Mickey Silberman, Esq. P: (303) Jennifer L. Seda, Esq. P: (303) Jackson Lewis LLP © 2012 Jackson Lewis LLP
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