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Criminal Background Checks and Employment: A Guide for Equal Opportunity Professionals

Thursday, November 15th, 2018

Over the past year, four major federal agencies issued significant guidance related to the use of criminal background checks in delivering employment-related services by state and local governments as well as in employment practices of private sector employers. The highlights are:

√ Don’t use arrest and/or conviction records in your decision-making.

√ If you feel you must conduct a criminal background check, then:

● Do it after you’ve determined the person meets either: (1) the essential eligibility requirements for selection and/or referral to a job or training program; or (2) the bona fide occupational qualifications (BFOQ) for the position at issue.
● Give notice to the individual that you need to conduct a criminal background check, and get the individual’s permission to do so.
● Give the individual the results of the criminal background check, and afford the individual an opportunity to explain or dispute the contents.
● Before taking an adverse action based on an individual’s arrest and/or conviction record, make sure your inquiry is “narrowly tailored to identify criminal conduct with a demonstrably tight nexus” to the position or training in question. And, you must demonstrate that you’ve considered the following factors: (1) the date of the criminal conviction (newer versus older); (2) what specific offenses demonstrate unfitness for performing a specific job or undergoing specific training; and (3) the essential requirements for the job or training, and the actual circumstances (at a home, outdoors, at a warehouse, at an office) under which the job or training will be performed.

√ Document everything you do. If your decision is challenged by a federal agency, you’ll need to demonstrate that you did not violate federal civil rights laws.

√ Keep the individual’s criminal background information confidential. Only use this information for the purpose for which it is intended.

I. Background

The federal guidance discussed in this paper stems from commonly-recited disparities in the arrest and conviction records of minorities as compared to non-minorities and how, as a result, these disparities result in disparate treatment of ex-offenders in the employment arena. The following is an example of the background cited in these documents:

In recent decades, the number of Americans who have had contact with the criminal justice system has increased exponentially. It is estimated that about one in three adults now has a criminal history record – which often consists of an arrest that did not lead to a conviction, a conviction for which the person was not sentenced to a term of incarceration, or a conviction for a non-violent crime. On any given day, about 2.3 million people are incarcerated and each year 700,000 people are released from prison and almost 13 million are admitted to – and released from – local jails.

Racial and ethnic disparities are reflected in incarceration rates. According to the Pew Center on the States, one in 106 white men, one in 36 Hispanic men, and one in 15 African American men are incarcerated. Additionally, on average, one in 31 adults is under correctional control (i.e. probation, parole, or incarceration), including one in 45 white adults, one in 27 Hispanic adults and one in 11 African American adults. Racial and ethnic disparities may also be reflected in other criminal history records. For example, although African Americans constitute approximately 13 percent of the overall population, they account for 28 percent of those arrested and almost 40 percent of the incarcerated population.

Title VI (addressing federally-assisted programs and activities) and Title VII (addressing employment practices) of the Civil Rights Act of 1964 prohibit discrimination based on race, color, and national origin. These titles prohibit both “disparate treatment” (treating members of protected groups differently based on their protected status), and “disparate impact” (the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of protected groups, and are not job-related and consistent with business necessity).

The guidance documents issued by EEOC, ETA, OFCCP, and CRC make clear that individuals with criminal history records are not a protected group under the applicable civil rights laws, but these laws may be implicated with criminal records are being considered. For example, it constitutes illegal discrimination to treat whites with a criminal record more favorably than similarly-situated African Americans with the same or similar criminal record. This constitutes “disparate treatment.” And, as another examples, job announcements that categorically exclude people who have any kind of conviction or arrest, or which specify that only those individuals with “clean” criminal records need apply, will likely constitute illegal “disparate impact” because of the above-referenced racial and ethnic disparities reflected in the criminal justice system.

II. Citations and scope of applicability

As can be seen below, the guidance documents have wide-reaching implications in the area of employment services and employment practices:

U.S. Equal Employment Opportunity Commission (EEOC)

    Guidance reference:

EEOC Enforcement Guidance, Number 915.002 (Apr. 25, 2012)

    Applies to:

All private sector employers with 15 or more employees

U.S. Department of Labor’s Office of Contract Compliance Programs (OFCCP)

    Guidance reference:

OFCCP Directive No. 306 (Jan. 29, 2013)

    Applies to:

Federal contractors and subcontractors and federally-assisted construction contractors and subcontractors

U.S. Department of Labor’s Employment and Training Administration (ETA) and Civil Rights Center (CRC)

    Guidance reference:

Training and Employment Guidance Letter (TEGL) No. 31-11 (May 25, 2012)

    Applies to:

Public workforce system and other entities that receive federal financial assistance to operate Job Banks, to provide assistance to job seekers in locating and obtaining employment, and to assist employers by screening and referring qualified applicants for employment and/or training (includes programs and activities covered by the Workforce Investment Act and the Wagner-Peyser Act)

III. Policies of the agencies

    EEOC

The Commission, which has enforced Title VII since it became effective in 1965, has well-established guidance applying Title VII principles to employers’ use of criminal records to screen for employment. This Enforcement Guidance builds on longstanding court decisions and policy documents that were issued over twenty years ago. In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, the Commission has decided to update and consolidate in this document all of its prior policy statements about Title VII and the use of criminal records in employment decisions.

The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions.

National data supports a finding that criminal record exclusions have a disparate impact on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate treatment charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s).

The issue is whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities. The Commission with closely consider whether an employer has a reputation in the community for excluding individuals with criminal records. In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate treatment on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of the offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFFCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.

    OFCCP

In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate treatment on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of the offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFFCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.

The guidance cites to the EEOC’s Enforcement Guidance to assist in determining the proper consideration of criminal records.

    ETA and CRC

As recognized by the federally-assisted workforce system, which is already engaged in promoting job opportunities for people with criminal records through various reentry grants and programs, obtaining employment is critical in reducing recidivism and easing the reintegration of persons returning from incarceration. Secretary of Labor Hilda Solis recently observed that the public workforce system’s mix of strategies, interventions and service partnerships must be designed and executed with the goal of helping people with criminal records obtain employment that can support them and their families. These efforts are consistent with the Federal Interagency Reentry Council’s mission to make communities safer by reducing recidivism, assist those returning from prison and jail in becoming productive citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration. As Secretary Solis stated recently: “When someone serves time in our penal system, they shouldn’t face a lifetime sentence of unemployment when they are released. Those who want to make amends must be given the opportunity to make an honest living.”

This TEGL is intended to help covered entities (and their employer customers) comply with their nondiscrimination obligations when serving the population of individuals with criminal records, and to ensure that exclusionary policies are not at cross-purposes with the public workforce system’s efforts to promote employment opportunities for such workers. This TEGL applies to all jobs available through a covered entity’s job bank without regard to whether the job is in the government or the private sector, including federal contractors and subcontractors.

This guidance cites to the EEOC’s Enforcement Guidance to assist in determining the proper consideration of criminal records.

IV. “Illegal” practices

Each of the guidance papers sets forth practices that may constitute illegal discrimination in violation of applicable civil rights laws. These practices are set forth as follows:

    EEOC

● Evidence supporting discrimination. The EEOC cites to several kinds of evidence that may be used to demonstrate discrimination in violation of Title VII: (1) biased statements, such as derogatory statements by the employer or decision-maker towards a protected group, or that express group-related stereotypes about criminality; (2) inconsistent hiring practices, such as requesting criminal history information more often for individuals with certain racial or ethnic backgrounds, or giving white individuals but not racial minorities the opportunity to explain their criminal history; (3) different treatment of similarly-situated individuals, such as a racial or ethnic minority being subjected to more or different background checks or to different standards for evaluating criminal history; and (4) statistical evidence derived from the employer’s applicant data, workforce data, and/or third party criminal background history data.

● No job-relatedness, illegal. If criminal background records are utilized in employment decisions, the employer should be prepared to demonstrate that this policy or practice is “job related for the position in question and consistent with business necessity.”

● Arrest records. The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. An exclusion based on an arrest, in itself, is not job related and consistent with business necessity. The Commission further notes arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed. The Commission mandates that an arrest record cannot be grounds for exclusion, but an employer may, under certain circumstances, inquire into the conduct underlying the arrest.

● Conviction records. Unlike an arrest record, a conviction usually is sufficient evidence that a person engaged in certain conduct. However, it is important to keep in mind that (1) there may be error in the record, or (2) the record may be outdated. Thus, a policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct is not tailored to a particular job, or consistent with business necessity.

    OFCCP

● Blanket exclusions are illegal. OFCCP is aware of job announcements that categorically exclude people who have any kind of conviction or arrest and of contractors that screen out job seekers with criminal records by stating that they will only accept applicants with so-called “clean” criminal records. Due to racial and ethnic disparities reflected in the criminal justice system, these policies or practices will likely have a disparate impact on certain protected groups, in violation of federal law.

● Failure to consider circumstances. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

● Adopting EEOC guidance. OFCCP further cites to EEOC’s Enforcement Guidance and the ETA/CRC TEGL document for further examples of discrimination in violation of federal civil rights laws.

    ETA and CRC

● Printing and publishing. Cannot “print or publish or cause to be printed” any job announcement that discriminates based on race, color, religion, sex, or national origin unless there is a bona fide occupational qualification for a preference based on religion, sex, or national origin.

● Use of discriminatory criteria prohibited. Use of any “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color, or national origin” is illegal.

● Nondiscriminatory selection and referral. “Selection and referral of individuals for job openings or training opportunities and all other activities performed by or through employment service offices” must be done without regard to race, color, or national origin. Conduct to the contrary violates civil rights laws.

● Posting job announcements in Job Banks. Employers must be placed on notice that federal civil rights laws “generally prohibit categorical exclusions of individuals based solely on an arrest or conviction history.” To this end, the TEGL requires that “Notice #1 for Employers Regarding Job Bank Nondiscrimination and Criminal Record Exclusions” be given to employers that register to use a Job Bank. Failure to place the employer on notice constitutes noncompliance by the Job Bank.

● WIA and Wagner-Peysner. The guidance notes the Workforce Investment Act at 29 U.S.C. § 2938 and Title VI of the Civil Rights Act of 1964 at 42 U.S.C. § 2000d require nondiscrimination by recipients of federal financial assistance, including non-discrimination in employment practices and in selection and referral for employment or training. The Wagner-Peyser Act at 20 C.F.R. § 652.8 similarly requires nondiscrimination and states must assure that discriminatory job orders will not be accepted except where there is a bona fide occupational qualification (BFOQ). Failure to consider the BFOQ of a position is illegal.

V. “Best practices”

Each guidance paper also sets forth certain “best” practices. These practices are similar among the agencies as follows:

    EEOC

● Don’t ask. The Commission recommends that employers not ask about convictions on the job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion is related to the position in question and consistent with business necessity.

● How to demonstrate business necessity. The Commission finds there are two ways in which criminal conduct exclusion will be job-related and consistent with business necessity: (1) the employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or (2) the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

The Commission states that the “individualized assessment” component consists of the following: (1) notice to the individual screened out because of a criminal conviction; (2) an opportunity for the individual to demonstrate the exclusion should not be applied under the particular circumstances, and (3) consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.

● Narrowly tailored. If an employer employs a criminal record screen, it must be “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.” The employer must identify essential job requirements and the actual circumstances under which the jobs are performed. Moreover, the employer must determine the specific offenses that may demonstrate unfitness for performing such jobs. And, the employer must determine the duration of exclusions for criminal conduct (older versus newer convictions). Finally, the employer should keep a record of consultations, research, and justifications considered in developing the policies and procedures. Managers, hiring officials, and decision-makers should be trained regarding how to properly implement the policies.

● Factors for consideration. Absent validation meeting the Uniform Guidelines’ standards, the employer must consider the following factors: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job held or sought (identifying the job title, essential functions of the job, circumstances under which the job is performed, such as level of supervision and oversight, and the environment in which the job duties are performed, such as a warehouse, private home, outdoors.

● Training is important. Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.

● Confidentiality is important. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

    OFCCP

● OFCCP cites to EEOC’s Enforcement Guidance, and the ETA/CRC TEGL for examples of “best practices.” This includes providing Notices 1-3 to job seekers and/or employers, as described in the ETA/CRC’s TEGL document.

    ETA and CRC

● Seeking a background check. If an employer seeks to conduct a criminal background check based on a bona fide requirement for the job, it must: (1) obtain the applicant’s permission before asking a background screening company for a criminal history report; (2) provide the applicant a copy of the report; and (3) provide the applicant a summary of his or her rights before taking any adverse action.

● Restrictive vacancy announce-ments. Covered entities should use a system (automated or otherwise) to identify vacancy announcements that include hiring restrictions based on arrest and/or conviction records. For each such vacancy announcement located, and to ensure the employer’s and covered entity’s compliance with federal civil rights laws, the employer must be given the opportunity to remove or otherwise edit the vacancy announcement. Here, the TEGL directs that “Notice #2 for Employers Regarding Job Postings Containing Criminal Record Exclusions” be provided to the employer.

If the employer continues to keep the hiring restriction in the announcement, the announcement must include a notice that the exclusions in the posting may have an adverse impact on protected groups, and individuals with criminal history records are not prohibited from applying for the posted position (referred to as “Notice #3 For Job Seekers to be Attached to Job Postings With Criminal Record Exclusions” in the TEGL document).

● Screening and referral based on criminal record restrictions. Criminal record histories may be taken into account for purposes of referring an individual to employment-related services or programs designed to aid individuals with arrest or conviction histories. However, covered entity staff should refrain from screening and refusing to refer applicants with criminal history records. Here, the guidance suggests, if an applicant’s arrest and conviction history is taken into account for purposes of excluding the individual from training programs or other employment-related services, then the EEOC’s arrest and conviction guidance should be followed.

● Confidentiality is important. Same as the EEOC.

About the author.

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Ms. Foster also offers highly-popular procedures-writing services, such as assisting you in developing discrimination complaint procedures, procedures for serving limited English proficient individuals, procedures for serving persons with disabilities, and procedures for gathering, handling, and storing medical information to name a few. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally-assisted programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.

OFCCP Updates its Disability and Veterans Community Resources Database for Contractors

Friday, April 4th, 2014

On April 4, 2014, the Office of Federal Contract Compliance Programs (OFCCP) added 24 new resources to its Disability and Veterans Community Resources Directory. This database was launched in March 2014 to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers.

Contractors, as well as others, can visit OFCCP’s updated Disability and Veterans Community Resources Directory on the OFCCP Web site at http://www.dol-esa.gov/errd/resources.html. OFCCP will add more resources to this database in the coming weeks.

OFCCP Posts VEVRAA Benchmark Database and User Instructions

Friday, March 21st, 2014

OFCCP posted the Benchmark Database required by the new regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Federal contractors use the VEVRAA Benchmark Database when establishing a hiring benchmark for protected veterans as required by 41 CFR 60-300.45 of the new regulations. The database includes the annual national percentage of veterans in the civilian labor force for contractors that choose to use this number as their benchmark. It also includes data on the percentage of veterans in the labor force in each State and the number of veterans who participate in each State’s employment service, for use by those contractors choosing to develop an individualized benchmark.

To help contractors use this database, OFCCP provides detailed user instructions and examples illustrating how a contractor could use the database to set an individualized VEVRAA benchmark.

You can access the VEVRAA Benchmark Database through OFCCP’s Web site at http://www.dol-esa.gov/errd/VEVRAA.jsp.

OFCCP Launches a New Outreach and Recruitment Database for Contractors

Friday, March 21st, 2014

On March 13, 2014, the Office of Federal Contract Compliance Programs (OFCCP) launched a new database to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers.

Contractors, as well as others, can visit OFCCP’s Disability and Veterans Community Resources Directory on the OFCCP Web site at http://www.dol-esa.gov/errd/resources.html. This new resource supplements the agency’s existing Employment Resources Referral Directory (ERRD).

OFCCP Guidance: Final Rule to Improve Job Opportunities for Individuals with Disabilities; Rules Become Effective March 24, 2014

Saturday, March 1st, 2014

For more information, go to www.dol.gov/ofccp.

On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire IWDs, and improve job opportunities for individuals with disabilities. The Final Rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.

The Final Rule was published in the Federal Register on September 24, 2013, and becomes effective on March 24, 2014. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.

Highlights of the Final Rule:

Utilization goal: The Final Rule establishes a nationwide 7% utilization goal for qualified IWDs. Contractors will apply the goal to each of their job groups, or to their entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.

Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.

Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Final Rule also requires that contractors invite their employees to self-identify as IWDs every five years, using the prescribed language. This language will be posted on the OFCCP website (coming soon).

Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.

Records Access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

ADAAA: The Final Rule implements changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of “disability” and certain nondiscrimination provisions of the implementing regulations.

OFCCP Guidance: The Vietnam Era Veterans’ Readjustment Assistance Act, Implementation of New Rules Effective March 24, 2014

Saturday, March 1st, 2014

The following guidance was issued by the Labor Department’s Office of Federal Contract Compliance Programs. For more information, go to www.dol.gov/ofccp.

On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) at 41 CFR Part 60-300. VEVRAA 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. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire protected veterans and improve job opportunities for protected veterans.

The Final Rule was published in the Federal Register on September 24, 2013, and becomes effective on March 24, 2014. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.

Highlights of the Final Rule:

Rescission of 41 CFR Part 60-250: The Final Rule rescinds the outdated 41 CFR Part 60-250 in its entirety. However, veterans that were formerly protected only under Part 60-250 will still be protected from discrimination under the revised 41 CFR Part 60-300.

Hiring benchmarks The Final Rule requires that contractors establish annual hiring benchmarks for protected veterans. Contractors must use one of two methods to establish their benchmarks. Contractors may choose to establish a benchmark equal to the national percentage of veterans in the civilian labor force, which will be published and updated annually by OFCCP. Alternatively, contractors may establish their own benchmarks using certain data from the Bureau of Labor Statistics (BLS) and Veterans’ Employment and Training Service/Employment and Training Administration (VETS/ETA) that will be also be published by OFCCP, as well other factors that reflect the contractor’s unique hiring circumstances. The data will be posted in the Benchmark Database.

Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.

Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process. The Final Rule includes sample invitations to self-identify that contractors may use.

Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.

Job Listings: The Final Rule clarifies that when listing their job openings, contractors must provide that information in a manner and format permitted by the appropriate State or local job service, so that it can access and use the information to make the job listings available to job seekers.

Records Access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

Pre-employment disability inquiries: New federally-approved form by OFCCP/OMB for federal contractors and subcontractors

Saturday, January 25th, 2014

The U.S. Department of Labor’s Office of Contract Compliance Programs and the Office of Management and Budget have released a new form, which is titled “Voluntary Self-Identification of Disability,” for use by federal contractors and subcontractors when conducting pre-employment disability inquiries pursuant to the revised regulations at 41 C.F.R. 60-741. The purpose of these inquiries is to promote recruitment and hiring of persons with disabilities, including veterans with disabilities. For more information, go to www.dol.gov/ofccp.

The content of the form is as follows:

Voluntary Self-Identification of Disability
Form CC-305 OMB Control Number 1250-0005

Why are you being asked to complete this form?

Because we do business with the government, we must reach out to, hire, and provide equal opportunity to qualified people with disabilities.i To help us measure how well we are doing, we are asking you to tell us if you have a disability or if you ever had a disability. Completing this form is voluntary, but we hope that you will choose to fill it out. If you are applying for a job, any answer you give will be kept private and will not be used against you in any way.

If you already work for us, your answer will not be used against you in any way. Because a person may become disabled at any time, we are required to ask all of our employees to update their information every five years. You may voluntarily self-identify as having a disability on this form without fear of any punishment because you did not identify as having a disability earlier.

How do I know if I have a disability?

You are considered to have a disability if you have a physical or mental impairment or medical condition that substantially limits a major life activity, or if you have a history or record of such an impairment or medical condition.

Disabilities include, but are not limited to: • Blindness • Autism • Bipolar disorder • Post-traumatic stress disorder (PTSD) • Deafness • Cerebral palsy • Major depression • Obsessive compulsive disorder • Cancer • HIV/AIDS • Multiple sclerosis (MS) • Impairments requiring the use of a wheelchair • Diabetes • Epilepsy • Schizophrenia • Muscular • Missing limbs or partially missing limbs • Intellectual disability (previously called mental retardation) • dystrophy

Please check one of the boxes below:

Your Name ___________________________________________

Today’s Date _________________________________________

___ YES, I HAVE A DISABILITY (or previously had a disability)

___ NO, I DON’T HAVE A DISABILITY

___ I DON’T WISH TO ANSWER

Reasonable Accommodation Notice

Federal law requires employers to provide reasonable accommodation to qualified individuals with disabilities. Please tell us if you require a reasonable accommodation to apply for a job or to perform your job. Examples of reasonable accommodation include making a change to the application process or work procedures, providing documents in an alternate format, using a sign language interpreter, or using specialized equipment.

OFCCP Offers Additional FAQs on the Implementation of the VEVRAA and Section 503 Final Rules

Tuesday, December 17th, 2013

OFCCP posted a third round of Frequently Asked Questions (FAQs) answering questions from contractors and the general public about provisions in the recently published Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act (Section 503) Final Rules. These FAQs address implementation issues, such as the schedule for contractors to come into compliance with the affirmative action requirements of Subpart C of the new regulations. These latest FAQs, published on the OFCCP Web site and marked with a “NEW” banner, are part of a series of FAQs, guidance materials, and resources that OFCCP is providing to contractors and the public between now and the March 24, 2014, effective date of the new rules.

The VEVRAA FAQs

The VEVRAA FAQs are available at http://www.dol.gov/ofccp/regs/compliance/vevraa.htm. This set of FAQs provides, in part, the following:

On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) at 41 CFR Part 60-300. VEVRAA 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. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire protected veterans and improve job opportunities for protected veterans.

The Final Rule was published in the Federal Register on September 24, 2013, and becomes effective on March 24, 2014. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle. Highlights of the Final Rule:

Rescission of 41 CFR Part 60-250: The Final Rule rescinds the outdated 41 CFR Part 60-250 in its entirety. However, veterans that were formerly protected only under Part 60-250 will still be protected from discrimination under the revised 41 CFR Part 60-300.
Hiring benchmarks The Final Rule requires that contractors establish annual hiring benchmarks for protected veterans. Contractors must use one of two methods to establish their benchmarks. Contractors may choose to establish a benchmark equal to the national percentage of veterans in the civilian labor force, which will be published and updated annually by OFCCP. Alternatively, contractors may establish their own benchmarks using certain data from the Bureau of Labor Statistics (BLS) and Veterans’ Employment and Training Service/Employment and Training Administration (VETS/ETA) that will be also be published by OFCCP, as well other factors that reflect the contractor’s unique hiring circumstances. The data will be posted in the Benchmark Database (coming soon).
Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.
Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process. The Final Rule includes sample invitations to self-identify that contractors may use.
Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.
Job Listings: The Final Rule clarifies that when listing their job openings, contractors must provide that information in a manner and format permitted by the appropriate State or local job service, so that it can access and use the information to make the job listings available to job seekers.
Records Access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

The Section 503 FAQs
The Section 503 FAQs are available at http://www.dol.gov/ofccp/regs/compliance/section503.htm. This set of FAQs provides, in part, the following:

On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire IWDs, and improve job opportunities for individuals with disabilities. The Final Rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.

The Final Rule was published in the Federal Register on September 24, 2013, and becomes effective on March 24, 2014. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle. Highlights of the Final Rule:

Utilization goal: The Final Rule establishes a nationwide 7% utilization goal for qualified IWDs. Contractors will apply the goal to each of their job groups, or to their entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.
Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.
Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Final Rule also requires that contractors invite their employees to self-identify as IWDs every five years, using the prescribed language. This language will be posted on the OFCCP website (coming soon).
Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.
Records Access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.
ADAAA: The Final Rule implements changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of “disability” and certain nondiscrimination provisions of the implementing regulations.

New OFCCP Rules Published Today, Effective March 24, 2014: Protected Veterans and Qualified Workers with Disabilities

Tuesday, September 24th, 2013

Two new rules designed to improve employment opportunities for protected veterans and qualified workers with disabilities were published in the Federal Register today. To read and learn more about these new rules, please visit: www.dol.gov/ofccp/VEVRAARule and www.dol.gov/ofccp/503Rule.

Both rules become effective on Monday, March 24, 2014. Federal contractors and subcontractors will be required to comply with most of the requirements of the new rules by this date. However, the rules give contractors additional time to comply with requirements in subpart C, which relates to affirmative action programs (AAPs). Contractors with AAPs in place on March 24 may maintain them until the end of their current AAP year, allowing them to delay compliance with the affirmative action requirements of the new rules until the start of their next AAP year.

Companies seeking additional information or compliance assistance should call OFCCP’s toll-free helpline at 1-800-397-6251, send an e-mail to OFCCP-Public@dol.gov or visit OFCCP’s web site at: http://www.dol.gov/ofccp/.

OFCCP Directive: Properly Calculating Back-Pay in Employment Discrimination Cases

Tuesday, July 30th, 2013
By ADM Notice Number 310 dated July 17, 2013, OFCCP provides valuable guidance for calculating back-pay for victims of employment discrimination. OFCCP explains the two models of calculating such relief—the formula model and the individual model—and it sets forth when it is appropriate to use a particular model and how wages are calculated under that model.
In a nutshell, the formula method is less precise and is utilized to approximate losses in a variety of circumstances, such as where (1) documentation isn’t available, or (2) the matter involves a large class action, and it would be too time-consuming or unduly burdensome to calculate wages for each class member.  The individual relief model, on the other hand, is properly used (1) for small class actions, (2) where documentation to support back wages is available, and/or (3) the liability period is of short duration.
The OFCCP directive further explains how back-pay is calculated under each of these models.  For the details, go towww.dol.gov/ofccp/regs/compliance/directives.