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eLABORate: OFCCP Issues Two FAQs on Disability Self-Identification Requirements and Listing "Remote" Jobs

October 20, 2014

On October 17, 2014, as part of its on-going efforts to provide guidance to federal contractors regarding recent revisions to Section 503 regulations and the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”), the Office of Federal Contract Compliance Programs (“OFCCP”) posted two new Frequently Asked Questions (“FAQs”).  One FAQ addresses how contractors may store self-identification disability information in compliance with the recent changes to Section 503.  The other FAQ addresses the ways in which contractors may list jobs that are remote, full-time telework positions in compliance with the VEVRAA.  The Section 503 and VEVRAA regulations were both revised on September 24, 2013, and the revisions went into effect on March 24, 2014.

Section 503 prohibits federal contractors and subcontractors from discriminating against individuals with disabilities, and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals.  The OFCCP revised the Section 503 regulations to strengthen contractors’ affirmative action responsibilities (click to read the new Section 503 regulations).  Although the framework articulating Section 503 responsibilities has been in place since the 1970s, the OFCCP has become increasingly concerned by the unemployment rate of individuals with disabilities.  The revisions to Section 503, among other things, implemented a new utilization goal for individuals with disabilities that contractors must apply to their workforce, included additional data collection standards, and required contractors to invite applicants to self-identify as individuals with disabilities during the application process, using language prescribed by the OFCCP.

The new Section 503 FAQ discusses what information a contractor must store in order to demonstrate compliance with the required self-identification of disability (click to read the FAQs for Section 503).  Recognizing the differing technological capabilities of contractors, the OFCCP provides a range of options to store and document compliance with the invitation to self-disclose disability requirement.  If the contractor uses paper copies for the self-identification, the contractor must retain either the hard copies or electronic copies (i.e., PDF, scanned, etc.) of the form.  The contractor must also retain any log, database, or spreadsheet it may have developed to record the data from self-identification forms.

Similarly, if the contractor electronically invites voluntary self-identification of disability, the contractor must either retain electronic copies, hard copies, or a detailed log, spreadsheet, or database of the data collected from each electronically completed form.  If the contractor creates a database of information, the contractor need not retain the forms, but must be able to demonstrate for the OFCCP how the information was collected, which includes providing a copy of the form used and demonstrating how the applicants were invited to self-identify.  These options allow contractors to determine what storage method will best align with their current document retention practices and ease the administrative burden of storing and documenting Section 503 compliance.

The other FAQ addresses the recent changes to the VEVRAA, which prohibits federal contractors and subcontractors from discriminating in employment against protected veterans, and requires these employers to take affirmative action to recruit, hire, promote, and retain these veterans (click to read the new VEVRAA regulations).  The updates to the VEVRAA included the implementation of certain hiring benchmarks for veterans, a voluntary self-identification for protected veteran status during the hiring process, and, relevant to the new FAQ, job listing standards that require contractors to list all job openings in a manner and format that can be used by the appropriate state or local workforce agency and allow access by job seekers.

Contractors reviewing the revised VEVRAA regulations initially questioned how to comply with the job-listing requirements when there are openings for “remote jobs,” which are full-time telework positions that can be performed from any location.  The FAQ explains that when a remote job has an opening, the contractor may satisfy the job listing requirements by listing the job opening with the state or local workforce agency “where the work unit, division, department, or supervisor to which the employee will report or be assigned is located” (click to read the FAQs for the VEVRAA). The FAQ helps ensure that contractors are in compliance with the job listing requirements and provides guidance for positions that do not necessarily “occur” at a specific location.

As demonstrated by the FAQs, the new hiring requirements of Section 503 and the VEVRAA regulations have garnered the most attention and present numerous pitfalls for unprepared contractors.  Contractors should familiarize themselves with the revised Section 503 and VEVRAA regulations, and be prepared to implement the new procedures outlined therein, which are further highlighted in the FAQs.

For questions about the revisions to the Section 503 and VEVRAA regulations, or other issues related to recent regulatory compliance obligations imposed on federal contractors, please contact the author of this article or any member of the labor and employment group.