1. Beth Ronnenburg, SPHR, SHRM-SCP President Berkshire Associates Inc.
Under the Microscope: How the Government Will Examine Your Section 503 and VEVRAA Compliance
Beth Ronnenburg, SPHR, SHRM-SCP
President
Berkshire Associates Inc.

2. About Berkshire Associates
For over 30 years Berkshire has offered services
and software to overcome HR challenges.
Affirmative Action
Plan Preparation Services
OFCCP Audit Support
Adverse Impact Analyses
BALANCEaap Software
Applicant Management
Compliance Audit
Definition of an Applicant
Process and Procedure Development
BALANCEtrak Software
Compensation
Base Compensation Planning
Market Analysis
Salary Equity Analyses
Job Descriptions
BALANCEpay Software
Training
Affirmative Action
Applicant Tracking
Disability & Veterans Compliance
Diversity & Inclusion

3. Objective
With recent statutory and regulatory changes, employers are facing greater scrutiny of the impact their employment practices have on Individuals with Disabilities (IWD) and Protected Veterans (PV). This informative session will review proven strategies for compliance based on recent Office of Federal Contract Compliance Programs (OFCCP) and Equal Employment Opportunity Commission (EEOC) enforcement activities under VEVRAA, Section 503 of the Rehabilitation Act of 1973, and the ADA.

4. Agenda Overview of 503 and VEVRAA Requirements
Best Practices for Voluntary Self-Identification, Outreach Evaluation, and 44k Data Analytics
OFCCP and EEOC Enforcement
Responding to OFCCP’s New Scheduling Letter
Reasonable accommodation data
Review of personnel processes
Qualification standards

5. Glossary VEVRAA—Vietnam Era Veterans Readjustment Assistance Act
Section 503—Section 503 of the Rehabilitation Act
IWD—Individuals with Disabilities
PV—Protected Veterans
44k Data Analytics—Data regarding number of applicants, hires, job openings, and jobs filled required by VEVRAA and Section 503 regulations
ESDS—Employment Service Delivery System
EEO—Equal Employment Opportunity
AA—Affirmative Action
OFCCP—Office of Federal Contract Compliance Programs
EEOC—U.S. Equal Employment Opportunity Commission

6. Refresher—What Was Required by March 24, 2014
EEO tagline modification (EEO/AA Employer including Vets and Disabled)
EEO is the Law poster—include with application process and online
Online accessibility language on Careers webpage
Updated language in purchase orders and contracts
Notify ESDS of request for priority referrals and list in format acceptable to ESDS
Revise record retention policies
Adopt new PV categories in EEO/AA policy

7. Refresher—What is Required by/in First AAP Year
Invite applicants to voluntarily self-identify (pre/post offer)
Conduct an initial self-identification survey of employees
Post EEO/AA policy statement with top executive support and include in handbook
Develop procedures to prevent IWD and PV harassment
Train employees engaged in key personnel activities
Notify subcontractors, vendors, and union of AA commitment and request “appropriate action”
Document periodic review of personnel processes

8. Refresher—What is Required by/in First AAP Year (cont.)
Document schedule for mental and physical qualifications review
Assess and document the effectiveness of outreach and recruitment efforts annually
Document actions taken to comply with the audit and reporting system obligations
Collect 44k data analytics
Conduct an annual workforce assessment and apply the 7% IWD goal to each job group or to the workforce as a whole for smaller contractors with or fewer employees
Establish, document, and begin applying an annual Veterans hiring benchmark

9. Best Practices for Voluntary Self-ID
Develop communication plan for employee survey
Timing of request
Use of top level officials with known disabilities
Consider asking employees to update all EEO data
Only collect PV status not specific PV categories
Electronic survey when possible but remember OMB form for disability status data cannot be changed
For employees without access to computers:
Mail survey with return envelope
Distribute at staff meeting
Temporary computer kiosks
Take role at staff meeting so you can show that everyone was offered opportunity

10. Required Outreach Evaluation
Document each annual evaluation, including criteria used and conclusion
Must evaluate 44k data analytics for prior three years as part of evaluation
Evaluation must be reasonable, as determined by OFCCP
If totality of efforts are not effective, contractor must implement alternative efforts

11. Best Practices For Outreach Evaluation
Remember regulations allow qualitative or quantitative review as long as contractor reviews 44k data analytics as part of the process
Consider adopting a multi-pronged approach that includes review of referral data and more subjective criteria about “value” of recruiting effort
Consider adopting fewer, more meaningful recruitment efforts that can be actively monitored
Create documentation to show a strong relationship between recruiting sources and company
Be careful about being too critical of efforts in written AAP

12. Outreach Evaluation

13. Required 44k Data Analytics
Contractors must “document the following computations or comparisons on an annual basis”:
Number of IWD or PV applicants
Total number of job openings and jobs filled
Total number of applicants for all jobs
Number of IWD and PV hired
Total number of applicants hired
Job openings: number of individual positions advertised as open in a job vacancy announcement or requisition. For example, if one job vacancy announcement or requisition includes 5 open positions and results in 4 hires, the contractor would document this as 5 job openings and 4 jobs filled.
2. The data collection requirements in section (k) also ask contractors to report the number of jobs "filled" ( (k)(2)) and those "hired" ( (k)(4) and (5)). How does the number of "jobs filled" differ from the number of people "hired?"
In the context of the data collection requirements of (k), jobs "filled" refers to all jobs the company filled by any means, be it through a competitive process or non-competitively, e.g., through reassignment or merit promotion. It, therefore, should take into account both new hires into the company and those employees who were placed into new positions via promotions, transfers, and reassignments. In contrast, the number of those "hired" refers solely to those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions.
3. Does the number of "jobs filled" include step or ladder movements that are automatically attained upon completion of a stated event, such as time in the job or attainment of a particular certification?
Both competitive and non-competitive movements may qualify as "jobs filled," so long as the movement is one into a different position, rather than simply a movement within the same position. This will necessarily be a fact-based determination. So, for example, a time-driven salary increase from one "step" to the next within the same position would not be a "job filled," since there was not any movement into a new position. By contrast, if an apprentice completes a certification program and moves into a journeyman position, then such movement would be a "job filled," since it is a movement from one position to another.

14. What Does This Data Collection Look Like?
Still unclear what data OFCCP expects
Should contractors report on all candidates or only Internet applicants?
FAQs suggest external AND internal candidates should be included BUT common practice for OFCCP is to remove internal candidates from EO hiring IRAs
FAQs also suggest OFCCP will compare applicants to jobs filled BUT jobs filled includes non-competitive placements

15. What Does This Data Collection Look Like?
Example of qualitative analyses

16. Best Practices for 44k Data Analytics
Review recordkeeping practices to confirm you can report on this data
44k data analytics should be a separate AAP report that can be removed if applicant or employee asks to review plans
Consider conducting analyses of 44k data under attorney-client privilege
Use Internet Applicant Rule when reporting applicant numbers
4. Can a contractor's existing human resources information system (HRIS) and/or applicant tracking system (ATS) serve as the "data analysis file" in which veteran self-identification must be stored?
Contractors may use their existing human resources information systems or applicant tracking systems as the data analysis file repositories for the veteran self-identification data collected pursuant to the new regulations, provided that certain criteria are met. Specifically, the veteran status-related data must be stored securely, apart from other personnel information, so that confidentiality is maintained, and access to this data must be limited solely to contractor personnel who have a need to know the information for the purpose of complying with OFCCP’s regulations. Veteran self-identification data must not be kept with the employee’s confidential medical file.

17. Agency Enforcement—OFCCP
Focus has shifted from education to enforcement, but agency is still primarily looking at technical compliance issues
Agency is expecting data—must educate OFCCP about your plan date and impact on compliance
Since FY 2011, OFCCP has issued 142 notices of violation for failure to accommodate
Since FY 2011, two financial agreements and two conciliation agreements for unlawful medical inquires (Oregon, Louisiana, Arizona, and Washington)

18. Agency Enforcement—EEOC
Focused on impact of broad-based policies on IWD for several years (e.g. leave policies, absence control and attendance policies, medical inquiries)
August 2015—$2.8 million settlement with Target
Challenged use of three employment assessments for exempt positions, including one as an unlawful medical inquiry under the ADA
July 2011—$20 million settlement with Verizon
Challenge to no fault attendance policy under ADA
September 2009—$6.2 million settlement with Sears
Challenge to fixed leave policy under ADA

19. OFCCP’s Revised Scheduling Letter
Effective for all audits after October 14, 2014
Requires submission of:
Results of outreach and recruitment evaluation
44k data analytics and six month update
IWD utilization analysis and six month update
Veteran benchmark used
Contractors are not required to report this data until first AAP year after March 24, 2015, but OFCCP is asking for update data for earlier plan dates

20. OFCCP’s Revised Scheduling Letter (Cont.)
Also requires submission of:
Reasonable accommodation policies
Information regarding reasonable accommodation requests and resolutions
Documentation of audit and reporting system
Most recent assessment of personnel processes and physical and mental qualifications
Date of last scheduled assessment, changes made, and date of next scheduled assessment
All contractors should have this data now!

21. Reporting Reasonable Accommodations
Provide accommodation policy if you have one and follow it; otherwise, describe informal process used
Consider providing examples rather than complete list
Do not provide employee name or other identifying info
Carefully review any accommodation requests that were denied before providing

22. Review of Personnel Processes
Purpose–to confirm contractors provide equal employment opportunity to IWD and PV
Review can be qualitative and informal, BUT must be documented
Processes used to collect IWD and PV status
Selection decisions where IWDs and PV considered
Requested and provided accommodations
Best Practice: Assess online application, time and attendance, and employee intranet sites for compatibility with assistive technology
Contractors should keep records of reviews and changes made

23. Managing IWD Performance
Section 503, 41 CFR (d): When employee has significant difficulty performing job and it is reasonable to conclude the performance problem may be related to a known disability, contractor “shall”:
Confidentially notify the employee of the problem
Ask if the problem is related to the disability, and if accommodation is needed
Key Takeaways:
Decide how to handle OFCCP affirmative action Requirements versus EEOC ADA compliance - Train managers to ask or check in with HR
Do not have to lower production standards
Do not have to excuse prior misconduct; accommodation is prospective only
Focus on performance issue, not medical condition
Consider impact on other workers

24. Managing IWD Performance (cont.)
EEOC Guidance on Applying Performance and Conduct Standards: “Should an employer mention an employee’s disability during a discussion about a performance or conduct problem if the employee does not do so? Generally, it is inappropriate for the employer to focus discussion about a performance or conduct problem on an employee’s disability [E]mphasizing the disability risks distracting from the focus on performance or conduct, and in some cases could result in a claim under the ADA that the employer “regarded” (or treated) the individual as having a disability.”

25. Mental and Physical Qualifications
Purpose–to ensure IWD are not unfairly screened out from positions
Must review mental and physical qualifications to ensure “job-related and consistent with business necessity”
Types of reviews:
Review all job descriptions annually
Prioritize jobs with high volume hiring, with significant physical or mental requirements, and any that include testing component
Review requirements when posted or when accommodation requested
If the contractor does not have job descriptions, we recommend reviewing any written job requirements detailed in job listings, advertisements, etc. Contractors should prepare notes of any changes made to job descriptions and/or job listings during these reviews.

26. Common OFCCP Follow-Up Requests
Sample voluntary self-identification forms
Description of applicant tracking process
Data regarding number of applicants with unknown EEO data
Focus on when data is being collected and how
Updated EEO/AA policies showing top official support in handbook
Documentation of all required postings
EEO is the Law Poster is online and posted

27. Common OFCCP Follow-Up Requests
Updated purchase orders and subcontracts
Sample copy
Last three subcontracts and purchase orders
All contracts and purchase orders during review period
Sample union, vendor, and recruitment letters
Job listings and priority referral notification to ESDS
Samples
All listings since date of Scheduling Letter
All listings for hires made during review period

28. Common OFCCP Follow-Up Requests
Reasonable accommodation process for online application systems
OFCCP may test process! Be sure you check first!
Medical standard questions
Use of pre-employment physicals
Mental and physical job requirements
Confidentiality of records
Blank Employment Application
EEO/AA tagline
Military history questions
Use of screens (criminal, credit, physical exams)

29. What are the Agencies Seeing?
OFCCP
Failing to list jobs with ESDS in acceptable formats
No written IWD or Vets AAP
Incorrect/missing EEO clause in purchase orders
Self-ID forms are not offered pre- and post-offer
Outreach and recruitment is not adequately documented
Hiring screens that are not being applied consistently
EEOC
Application of broad-based policies to IWD—fixed leave, attendance policies, absence control requirements
Individual failure to accommodate, including pregnancy
Unlawful medical inquiries during hiring and employment

30. Key Takeaways
Prepare for increased focus on 503 and VEVRAA requirements, with OFCCP expecting more detail than contractors may have expected
Refocus on all technical requirements of AAP process—implement the easy requirements now!
Be prepared to explain the steps you have taken to comply with new VEVRAA and 503 requirements
Improve your recordkeeping processes
44k data analytics
Outreach evaluation
AAP auditing activities
Reasonable accommodations

31. Key Takeaways Review job descriptions
Distinguish between basic qualifications (Internet Applicant Rule) and essential functions (ADA)—they are not always the same!
Evaluate online prescreening tools
Confirm screens are job-related, focus on willingness rather than ability, ask about BQs first, and make clear that tasks can be performed with or without reasonable accommodation
Review timing and nature of medical inquiries
Limit scope of requests—most are too broad!
Review leave and attendance policies

32. QUESTIONS?

33. Thank You!
For a copy of this presentation, and additional resources, please visit: info.berkshireassociates.com/Beth For more information about this presentation, or Berkshire Associates, please contact Beth Ronnenburg at , ext or

34. Additional Resources
Office of Federal Contractor Compliance Programs: Equal Employment Opportunity Commission: Berkshire’s HR and Affirmative Action Blog: info.berkshireassociates.com/balanceview