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Government Contractors: What Must You Do by March 24, 2014 to Implement the New VEVRAA and Rehabilitation Act, Section 503 Regulations in your Affirmative Action Programs? Maybe Nothing!

In September of 2013, the Office of Federal Contract Compliance Programs issued new regulations that in Subpart C affect how government contractors must meet their affirmative action obligations for veterans and individuals with disabilities (“IWDs”). Among other things, these sweeping changes require covered contractors to change the content of their affirmative action programs (AAPs), their notices to subcontractors, and the EEO provisions contained in new or modified contracts and job postings. In addition, under the new regulations, contractors must implement new self-identification procedures for certain applicants and employees, and determine whether they are meeting a 7% utilization goal for IWDs and an 8% hiring goal for veterans. If not, the regulations require contractors to annually evaluate their outreach and recruitment efforts in a written report and adjust them accordingly.

With all of these new and revised requirements, the first thing any contractor must know is: When do these changes go into effect? The contracting community has been abuzz talking about the March 24, 2014 effective date of the regulations. While it is true that the regulations go into effect on this date, this is NOT the date by which OFCCP requires contractors to comply. In the Preambles to the regulations, OFCCP explicitly stated that contractors with written AAPs in place on March 24, 2014 need not revise their AAPs to include the new requirements until the start of their next plan year. Then, in a December 17, 2013 webinar, the OFCCP stated that it would “look the other way” and permit contractors to delay implementation of all of the Subpart C requirements included in the new regulations, not just those pertaining to AAP content until the post-March 24, 2014 expiration of the contractors’ current AAP. These other Subpart C requirements include the new self-identification processes, EEO clauses, and notices.

This means that contractors with an AAP in place prior to March 24, 2014 can wait until the natural expiration of their current AAP before implementing any of the changes required in Subpart C of the new regulations. The OFCCP confirmed this permitted implementation delay in the FAQ’s on its website pertaining to Section 503 and VEVRAA. Thus, contractors should be advised – “Don’t try to keep up with the Joneses!” Each covered contractor will have its own deadline by which implementation is required. 

Need more time?

Contractors can buy themselves more time by changing the expiration date of their current AAP to March 23, 2014 or a date prior and implement a new AAP under the old rules for a new 12-month period, potentially buying the contractor until March 23, 2015 to come into compliance with the new regulations. This change can be done unilaterally and without notice to the OFCCP.

We know that all contractors will use this additional time to study the new regulations and update their AAPs, forms and processes rather than procrastinate. However, when implementing their first AAPs under the new regulations, contractors can take further solace in the fact that the OFCCP has stated that they will not find contractors out of compliance in their first AAP under the new regulations, the “transitional AAP,” if the contractor has documented in it what compliance obligations the contractor had yet to accomplish and the efforts the contractor was undertaking to bring itself into compliance.

Thus, on March 24, 2014, contractors can take a deep breath and tune out the hype, knowing that they have time to comply with the new regulations.

Julie Reddig is an employment attorney at Lerch, Early & Brewer in Bethesda, Maryland. She defends management in a broad range of matters and disputes involving employment and the workplace, including wage and hour investigations by state and federal officials, discrimination, harassment, and overtime claims made by current and former employees.

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