EEO and Affirmative Action Update National Contract Management Association March 13, 2013 Stan Koper and Catherine Gray

Agenda  New requirement under FAR for service contracts  OFCCP proposed regulations  AAP best practices  What to expect from the OFCCP

Non-Displacement of Qualified Workers Under Service Contracts Executive Order (1/30/2009) It is the policy of the Federal Government that service contracts and solicitations for such contracts shall include a clause that requires the contractor, and its subcontractors, under a contract that succeeds a contract for performance of the same or similar services at the same location, to offer those employees (other than managerial and supervisory employees) employed under the predecessor contract whose employment will be terminated as a result of the award of the successor contract, a right of first refusal of employment under the contract in positions for which they are qualified. There shall be no employment openings under the contract until such right of first refusal has been provided.

Non-Displacement of Qualified Workers Under Service Contracts  29 CFR Part 9 implementing Executive Order  Applies to all new solicitations after January 18, 2013  All service contracts above the simplified threshold of $150,000 and their solicitations except those excluded, that succeed contracts for the same or similar service at the same location.

Non-Displacement of Qualified Workers Under Service Contracts The definition of service contract or contract means any contract or subcontract for services entered into by the Federal Government or its contractors that is covered by the McNamara-O’Hara Service Contract Act of 1965 (SCA), as amended, 41 U.S.C et seq., and its implementing regulations.

Non-Displacement of Qualified Workers Under Service Contracts Contracting agency requirements  Contract Clause  Notice  Disclosures  Actions on complaints  Report contents

Non-Displacement of Qualified Workers Under Service Contracts The Contracting Officer shall provide the incumbent contractor’s list of employees to the successor contractor and, on request, to employees or their representatives. See 29 CFR 9.12(e) and 48 CFR

Non-Displacement of Qualified Workers Under Service Contracts Right of first refusal  May not fill employment opening under the contract prior to making good faith offers of employment  To employees employed under the successor contract: –Who are qualified for positions –Whose employment will be terminated as a result of the reward or the expiration of the contract

Non-Displacement of Qualified Workers Under Service Contracts Obligation to offer right of first refusal exists even if the successor contractor has not been provided with a list of the predecessor contractor’s employee, or if an employee’s name was left off the list

Non-Displacement of Qualified Workers Under Service Contracts  Bona fide express offer of employment  Establish time limit for response, but not less than 10 days  May be for a different job or position  May be for different terms and conditions so long as not intended to deter employee from accepting in order to hire someone else

Non-Displacement of Qualified Workers Under Service Contracts Termination of employment after commencement of contract may be evidence that it was not a bona fide offer of employment

Non-Displacement of Qualified Workers Under Service Contracts  Nondisplaced employees  Successor’s current employees  Non-service employees  Employee’s past unsuitable service  Non-federal work  Reduction in staffing levels

Non-Displacement of Qualified Workers Under Service Contracts 30 days prior to the end of a contract, the contractor must furnish the Contracting Officer with a list of the names of all service employees working under the contract and any subcontract at the time the list is submitted

Non-Displacement of Qualified Workers Under Service Contracts Exclusions:  Executive, administrative, and professional employees exempt under 29 CFR 541.  Contracts or subcontracts for services under the simplified acquisition threshold.  Contracts for commodities or services produced or provided by the blind or severely handicapped, and agreements for vending facilities operated by the blind.

Exclusions Continued  Guard, elevator operator, messenger, or custodial services provided to the federal government under contracts with sheltered workshops employing the severely handicapped.  Federal service work constituting only part of employee’s job.  Contracts exempted by Federal Agency.

Non-Displacement of Qualified Workers Under Service Contracts  Recordkeeping  Wage and Hour Division Investigations  Exhaustion of administrative remedies

Status of Proposed Regulations for Veterans and the Disabled  Goals for hiring  Self-identification  Recordkeeping  Possible Timing

Affirmative Action Best Practices and What to Expect

Best Practices  Executive Order 11246/Section 503 of the Rehabilitation Act of 1973  Over $10,000  Aggregate or single contract  Obligations:  Post EEO Poster  Include Contract Clause in subcontracts  Applicants and Employees protected » By Race/Ethnicity, Gender, Disability

Best Practices  $50,000 or More  Single Contract (includes Bills of Lading, Blanket Purchase Orders)  Obligations  Same as $10,000 Plus  Develop Affirmative Action Program For Minorities/Women/Disabled Goals for Minorities, Women Outreach, Positive Recruiting for Disabled

Best Practices  Vietnam Era Veterans’ Readjustment Assistance Act (38 U.S.C. 4212)  $100,000 or more  Single Contract  Covered Veterans: Other Protected (served in war or receive campaign or expeditionary badge) Recently Separated (three years) Armed Forces Service Medal Veterans

Best Practices  Vietnam Era Veterans’ Readjustment Assistance Act –(38 U.S.C. 4212) –Obligations List all jobs with local State Employment Office Outreach, Positive Recruiting for Veterans Applicants/Employees Protected by Veteran Status

Best Practices  Executive Order Program –Goals/Good Faith Efforts –Personnel Activity Analysis Applicant Flow, Hires, Promotions, Terminations –Recordkeeping: Accurate, Comprehensive –Compensation Analysis Qualitative vs. Quantitative

Best Practices  Vets/Disabled Affirmative Action Programs –Two Recruiting Sources for Veterans –Two Recruiting Sources for Disabled –Establish Personal Relationship with Each –Invitation to Self-Identify Disabled/Disabled Veterans at Hire Other Covered Veterans at Hire or Before

What to Expect  OFCCP Audits 4,000 -4,500 Locations Annually  Out of 285,000 Contractor Establishments Works out to 1.5% Chance of Selection  If Selected, What Next? Scheduling Letter AAP and Supporting Documentation 30 Day Response Time

What to Expect  The Full Desk Audit –Extensive Data Requests –Policies, Practices, Procedures –Filing VETS-100A? –EEO-1 Reports? – Personnel Activity Reports Applicants, Hires, Promotions, Terminations – Goal Attainment, Good Faith Effort

What to Expect  Examine Differences in Selection –Male or Female, Minority or non-Minority Reasons for non-Selection: Hires, Promotions Reasons for Termination  Outreach, Recruitment Efforts –Documentation of Contacts with Agencies Proof of Job Listing  Maternity Leave  Verify Self-Identification Procedures

What to Expect  A Long Time to Complete Audit  Incessant, Often Detailed Data Requests  Short Turn-Around Times Demanded  Long Periods of Inactivity, Followed by New Demands  Closure with Conciliation Agreement –Most with Insufficient Outreach –Many with Inadequate Recordkeeping, Documentation –Some with Financial Remedies Mostly Failure to Hire

Questions? Stan Koper Senior Vice President Gaucher Associates 50 Oliver Street, Suite 212 North Easton, MA Catherine Moreton Gray Attorney McCarter & English, LLP CityPlace I 185 Asylum Street Hartford, Connecticut