United States: OFCCP Publishes Additional Information Related To Its New Protected Veterans And Disability Regulations

As new regulations from the Office of Federal Contract Compliance Programs (OFCCP) go into effect, the OFCCP has released guidance and materials to help covered contractors comply with the new requirements. The new resources include a hiring benchmark database, an updated outreach resources directory, and a Spanish language Section 503 self-identification form.

VEVRAA Benchmark Database

Under the OFCCP's new regulations for protected veterans, which went into effect on March 24, 2014, federal contractors with a covered federal contract or subcontract greater than or equal to $100,000 are now required to adopt a hiring benchmark for protected veterans as part of the first new annual affirmative action program they develop after the regulations' effective date. To help contractors establish these hiring benchmarks, the OFCCP recently published additional materials and guidance regarding the establishment of these hiring benchmarks. The most notable of the items released by OFCCP was a database that included the various data points that contractors may elect to use in setting their benchmarks.

What is the Hiring Benchmark?

The hiring benchmark is what contractors will use to measure their progress toward achieving equal employment opportunity for protected veterans. With each affirmative action plan, contractors will be expected to measure the percentage of their new hires that self-identify as a protected veteran against the hiring benchmark established for that plan.

Methods for Establishing Hiring Benchmarks

The OFCCP's regulations provide two options for the required hiring benchmarks. The first option is to simply adopt the national percentage benchmark provided annually by the OFCCP. The second option is to establish a more individualized hiring benchmark using the five factors discussed below (under Option 2).

Option 1: Adopting the National Percentage Benchmark

The national percentage benchmark is calculated by the OFCCP based on the percentage of veterans in the civilian workforce, which includes those who are employed and those who are unemployed but looking for work. Currently, the national percentage benchmark is 7.2%. This is slightly lower than the 8% figure that many in the contractor community had been expecting to see. This option does not require any additional calculation. This 7.2% benchmark is what most contractors will elect to use in their first affirmative action plans prepared under the new regulations.

Option 2: Developing Individualized Hiring Benchmarks

In an effort to afford federal contractors an opportunity to utilize a more individualized method to measure their veteran hiring, the OFCCP also will allow contractors to set their own annual benchmarks. Contractors can set their benchmarks by considering the five factors described below. While Factors 1 and 2 are objective and are provided by information in the Department of Labor's (DOL) new hiring benchmark database, Factors 3 and 4 are dictated by the data in the contractor's own affirmative action plan. Finally, Factor 5 allows contractors to consider other circumstances unique to the specific affirmative action plan.

  1. Factor 1: The average percentage of veterans in the civilian labor force for the state where the establishment is located, for the previous three years. The DOL provides this data online1 in two formats. One format provides the annual data for every state by year. The other provides three years of cumulative data for each individual state.2
  2. Factor 2: The number of veterans who participated in the employment service delivery system in the state where the establishment is located, over the previous four quarters. The DOL tabulates this data, which can be accessed online.3
  3. Factor 3: The applicant ratio and hiring ratio for the establishment for the previous year. The contractor can calculate the applicant ratio by comparing the number of protected veteran applicants to the total number of applicants per the contractor's Affirmative Action Plan. Similarly, to calculate the hiring ratio, the contractor should compare the number of protected veterans hired to the total number of hires.
  4. Factor 4: The most recent assessment of the effectiveness of the contractor's outreach and recruitment efforts. For example, if the contractor's outreach efforts attracted (or failed to attract) a large pool of protected veteran applicants, that information could influence the benchmark.
  5. Factor 5: Any other factor, such as the nature of the job openings or the facility's location, that would tend to affect the availability of qualified protected veterans. This factor provides contractors with the flexibility to consider any other pertinent factors about their establishment or the nature of their business that might affect the availability of qualified protected veterans. For example, if all of the open positions were engineering positions and the facility is not located in an area that has higher education facilities or highly skilled workers, this factor could influence the benchmark that the contractor chooses to set.

The OFCCP recognizes that contractors would not have access to Factor 3 (the applicant ratio and hiring ratio) and Factor 4 (assessment of outreach and recruitment efforts) during the first plan year under the new regulations, as this is a transitional year. Accordingly, contractors electing to set their own benchmark using the five factors will not be required to consider these two factors during their first annual plan cycle under the new regulations.

The contractor's final benchmark does not have to use all factors (although the contractor is required to consider all five factors). According to its guidance, the OFCCP will defer to the contractor on what factor(s) it utilizes to set the benchmark. In the transitional year example provided by the OFCCP, the hypothetical contractor calculated the individualized benchmark using just Factor 1 – i.e., by averaging the three years of availability data for the state. In the second example, the hypothetical contractor calculated the benchmark using its own applicant and hiring ratio data because its recruitment efforts yielded a significant pool of qualified veteran applicants.

Choosing the Benchmark Option: Advantages & Disadvantages

Contractors can choose to set their benchmark using the national percentage or the individualized factors. Contractors with multiple affirmative action plans may choose to use different options for different plans.

Opting to set the hiring benchmark using the national percentage simplifies the process, saves the contractor the trouble of calculating and/or assessing multiple factors, and is less likely to prompt follow-up questions from the OFCCP. On the other hand, this option deprives the contractor of the flexibility to use factors such as recruitment activities, location, etc., to influence the hiring benchmark.

Given that three of the five factors under the individualized option are localized and subjective, the second option may permit the contractor to better capture the contractor's particular circumstances. Additionally, per the OFCCP's guidance, so long as the contractor reasonably describes and documents the factors it took into account and its methodology for considering them, the contractor will be found to be in compliance with the regulations. The disadvantage of this option, however, is that the burden to gather and evaluate the requisite data rests on the contractor. Additionally, in both examples provided by the OFCCP, the individualized benchmark was set higher than the national percentage. It is unclear how the OFCCP will react if the benchmark is lower than the national percentage. There is reason to believe that the OFCCP would have an unfavorable view if a contractor chose to set its hiring benchmark below the pre-set national percentage. On the other hand, if the benchmark is higher than the national percentage, one wonders whether the contractor will be viewed in a more favorable light. That said, the contractor would just as easily be able to demonstrate its great success if its veterans hiring level well exceeded the national benchmark, which then raises the question of whether there is any advantage in setting the benchmark higher than the national average.

While the OFCCP is not likely to penalize contractors for hiring benchmark data during the first (and maybe even first two) years of implementation, the agency's preferences and potential follow-up queries regarding the setting and evaluation of hiring benchmarks will remain to be seen until the OFCCP begins conducting compliance reviews under the new regulations.

New Outreach Resources Directory

On March 13, 2014, the OFCCP released a new outreach resources directory.4 This directory captures a non-exhaustive list of groups and organizations that are available to help contractors recruit, train, and hire qualified veterans and individuals with disabilities. The directory, which supplements the agency's existing Employment Resources Referral Directory (ERRD), allows contractors to search by state. The OFCCP will continue to update available resources, and contractors are encouraged to review the directory periodically.

503 Self-Identification Form

The OFCCP has posted, in PDF and Word formats, both English and Spanish versions of the Voluntary Self-Identification of Disability Form required by the new regulations implementing Section 503 of the Rehabilitation Act (Section 503). Federal contractors and subcontractors must use the forms developed by OFCCP for all solicitations of self-identification of disability status being conducted under the new regulations. Federal contractors and subcontractors must begin using these forms at the start of their next affirmative action plan cycles after March 24, 2014.

The Forms can be accessed online.5 Nothing in the OFCCP's regulations or in the sub-regulatory guidance provided by the OFCCP mandates that contractors must use the Spanish language version of the form. Nonetheless, it is advisable for employers that have a significant number of employees or applicants whose primary language is Spanish to offer the form in both languages to all of their applicants, new hires, and employees—allowing the employee/applicant to decide which of the two forms to use.

Footnotes

1. U.S. Department of Labor, VEVRAA Benchmark Database, available at http://www.dol-esa.gov/errd/VEVRAA.jsp.

2. Contractors in Puerto Rico or the U.S. Virgin Islands are expected to use the data applicable to Florida. Contractors in Guam are expected to use the data applicable to Hawaii.

3. Because the data is not available for Guam, contractors in Guam are expected to use the data applicable to Hawaii.

4. U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), Disability and Veterans Community Resources Directory, available at http://www.dol-esa.gov/errd/resources.html.

5. U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), New Regulations: Section 503 of the Rehabilitation Act, available at  http://www.dol.gov/ofccp/regs/compliance/section503.htm.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.