Employment Law: Affirmative Action Mandates For Government Contractors

, The Connecticut Law Tribune

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New formulaic sentences for contractors to give subcontractors notice of their VEVRA and Rehab Act obligations and the obligation to print them in boldface are prescribed, probably requiring modification of purchase order forms.

Now contractors will have to collect annually and maintain for three years, applicant flow data on the numbers of job applicants and hires in general and those who self-identify as vets and IWDs. To make this data collection possible, contractors will now be required to invite self-identification by applicants earlier in the selection process than under existing rules, which required this step only at the "post-offer" stage.

In the case of online recruiting, the inquiry (and applicant number count) can be delayed until after an initial "basic qualifications" screen eliminates clearly unqualified applicants from the process, which is something of a blessing in this age of online recruitment, high unemployment and automatic computer functions that can generate ridiculously high numbers of putative applications for every posted job opening. The new Rehab Act regulations actually require that invitations to self-identify as an IWD be extended both pre- and post-offer before hire and periodically to the entire incumbent workforce since disability status is subject to change.

Documentation

In addition to the new applicant flow and benchmark records, contractors are newly required to create and maintain documentation of their review and audit of their personnel practices for the purpose of identifying and addressing problems affecting job and advancement access for IWDs and vets.

Compliance evaluations by OFCCP staff under the new regulations will specifically be allowed to include events and actions taken after the date of the review scheduling letter, will be authorized to occur on or off-site at the preliminary and in-depth stages and will require the contractor to cooperate with OFCCP's preference from among the contractor's existing data formats. Pre-award reviews like those under EO 11246 for race and sex issues will not be conducted for VEVRA and Rehab Act purposes as well.

All in all, the new regulations add a considerable amount of recordkeeping, analysis, reporting and communication obligations to companies that do business with the federal government. The regulations stress the "privilege" nature of contractor status, implying that a business wishing not to undertake the obligations and responsibilities of affirmative action should simply eschew government work.

But this idea of business choice in whether or not to deal with the government is illusory. This is because the rules are not limited to first tier government contractors signing up with their eyes open. These rules apply to second- and third-tier and beyond, sub-sub-sub-contractors with little real economic opportunity to decline customers who might be using what they purchase from the unwitting sub- sub- sub to fulfill a federal government contract obligation. Moreover, the growing role of the federal government in American economic life makes it even more difficult to carve out a sustainable government-free business model.

In short, this change in the compliance terrain warrants close attention.•

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