Pillsbury Winthrop Shaw Pittman

Government contractors face expanded affirmative action requirements

By Julia E Judish and Maryelena Zaccardelli

As its landmark initiative, the Obama administration’s Office of Federal Contract Compliance Programs (OFCCP) issued expansive new regulations requiring government contractors to undertake greater efforts to employ veterans and individuals with disabilities. The regulations implement the Vietnam Era Veterans’ Readjustment and Assistance Act as amended (VEVRAA) and section 503 of the Rehabilitation Act of 1973, which prohibit discrimination against and require affirmative action in employment for certain classes of veterans and for individuals with disabilities. The most controversial of the requirements — hiring benchmarks for veterans and utilisation goals for individuals with disabilities — have an effective date that depends on the start date for each contractor’s affirmative action plan (AAP) year. Some provisions, however, go into effect on 24 March 2014, and the OFCCP encourages contractors to begin early implementation of other regulatory provisions.

Contractors have been accustomed to performing individualised availability analyses in their AAPs for minorities and women under executive order 11246; on an annual basis, contractors must compare the actual representation of minorities and women in their workforce to the expected availability of candidates from these groups, based on Census and labour pool data for the contractor’s recruiting area for each job group, as well as on data about the contractor’s actual applicant pool. The VEVRAA and section 503 regulations forge new ground in setting a numerical expectation on a nationwide basis for the percentage of protected veterans and individuals with disabilities that government contractors should employ in their workforce. The ‘hiring benchmark’ for the employment of veterans in the civilian workforce is currently set at eight per cent, but it will be updated annually by the OFCCP. Contractors also have the option of establishing their own annual benchmarks by taking into account prescribed factors, including state-level data on veteran availability and the contractor’s own past applicant and hiring ratio for veterans, among other data. The section 503 national ‘utilisation goal’ for employment of qualified individuals with disabilities is fixed at seven per cent for each job group in a contractor’s workforce. Smaller contractors, however, with 100 or fewer employees, may measure the seven per cent utilisation goal with respect to their entire workforce…

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