Under the Microscope: How the Government Will Examine Your Section 503 and VEVRAA Compliance

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

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

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 taglinemodification (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 100 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

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

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 11246 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?

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

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 analyticsand 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 60-741.44(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

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

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 800.882.8904, ext. 1202 or bethr@berkshireassociates.com

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