eeo and affirmative action update - ncma boston · 2018-01-02 · eeo and affirmative action update...

EEO and Affirmative Action Update

National Contract Management Association

March 13, 2013

Stan Koper and Catherine Gray

Agenda

New requirement under FAR for service

contracts

OFCCP proposed regulations

AAP best practices

What to expect from the OFCCP

Non-Displacement of Qualified

Workers Under Service Contracts

Executive Order 13495 (1/30/2009)

It is the policy of the Federal Government that service contracts and

solicitations for such contracts shall include a clause that requires the

contractor, and its subcontractors, under a contract that succeeds a

contract for performance of the same or similar services at the same

location, to offer those employees (other than managerial and

supervisory employees) employed under the predecessor contract

whose employment will be terminated as a result of the award of the

successor contract, a right of first refusal of employment under the

contract in positions for which they are qualified. There shall be no

employment openings under the contract until such right of first refusal

has been provided.



29 CFR Part 9 implementing Executive Order

Applies to all new solicitations after

January 18, 2013

All service contracts above the simplified

threshold of $150,000 and their solicitations

except those excluded, that succeed

contracts for the same or similar service at

the same location.



The definition of service contract or contract means any contract or subcontract for services entered into by the Federal Government or its contractors that is covered by the McNamara-O’Hara Service Contract Act of 1965 (SCA), as amended, 41 U.S.C. 6701 et seq., and its implementing regulations.



Contracting agency requirements

Contract Clause

Notice

Disclosures

Actions on complaints

Report contents



The Contracting Officer shall provide the

incumbent contractor’s list of employees to

the successor contractor and, on request, to

employees or their representatives. See 29

CFR 9.12(e) and 48 CFR 22.1204.



Right of first refusal

May not fill employment opening under the

contract prior to making good faith offers of

employment

To employees employed under the successor

contract:

– Who are qualified for positions

– Whose employment will be terminated as a result of

the reward or the expiration of the contract



Obligation to offer right of first refusal exists

even if the successor contractor has not

been provided with a list of the predecessor

contractor’s employee, or if an employee’s

name was left off the list



Bona fide express offer of employment

Establish time limit for response, but not

less than 10 days

May be for a different job or position

May be for different terms and conditions

so long as not intended to deter employee

from accepting in order to hire someone

else



Termination of employment after

commencement of contract may be

evidence that it was not a bona fide offer of

employment



Nondisplaced employees

Successor’s current employees

Non-service employees

Employee’s past unsuitable service

Non-federal work

Reduction in staffing levels



30 days prior to the end of a contract, the

contractor must furnish the Contracting

Officer with a list of the names of all service

employees working under the contract and

any subcontract at the time the list is

submitted



Exclusions:

Executive, administrative, and professional employees exempt under 29 CFR 541.

Contracts or subcontracts for services under the simplified acquisition threshold.

Contracts for commodities or services produced or provided by the blind or severely handicapped, and agreements for vending facilities operated by the blind.

Exclusions Continued

Guard, elevator operator, messenger, or

custodial services provided to the federal

government under contracts with sheltered

workshops employing the severely

handicapped.

Federal service work constituting only part

of employee’s job.

Contracts exempted by Federal Agency.



Recordkeeping

Wage and Hour Division Investigations

Exhaustion of administrative remedies

Status of Proposed Regulations for

Veterans and the Disabled

Goals for hiring

Self-identification

Recordkeeping

Possible Timing

Affirmative Action

Best Practices

and

What to Expect

Best Practices

Executive Order 11246/Section 503 of the

Rehabilitation Act of 1973

Over $10,000

Aggregate or single contract

Obligations:

Post EEO Poster

Include Contract Clause in subcontracts

Applicants and Employees protected

» By Race/Ethnicity, Gender, Disability

Best Practices

$50,000 or More

Single Contract (includes Bills of Lading, Blanket

Purchase Orders)

Obligations

Same as $10,000 Plus

Develop Affirmative Action Program

For Minorities/Women/Disabled

Goals for Minorities, Women

Outreach, Positive Recruiting for Disabled

Best Practices

Vietnam Era Veterans’ Readjustment Assistance

Act (38 U.S.C. 4212)

$100,000 or more

Single Contract

Covered Veterans:

• Other Protected (served in war or receive

campaign or expeditionary badge)

• Recently Separated (three years)

• Armed Forces Service Medal Veterans

Best Practices

Vietnam Era Veterans’ Readjustment Assistance Act

– (38 U.S.C. 4212)

– Obligations

• List all jobs with local State Employment Office

• Outreach, Positive Recruiting for Veterans

• Applicants/Employees Protected by Veteran

Status

Best Practices

Executive Order Program

– Goals/Good Faith Efforts

– Personnel Activity Analysis

• Applicant Flow, Hires, Promotions,

Terminations

– Recordkeeping: Accurate, Comprehensive

– Compensation Analysis

• Qualitative vs. Quantitative

Best Practices

Vets/Disabled Affirmative Action Programs

– Two Recruiting Sources for Veterans

– Two Recruiting Sources for Disabled

– Establish Personal Relationship with Each

– Invitation to Self-Identify

• Disabled/Disabled Veterans at Hire

• Other Covered Veterans at Hire or Before

What to Expect

OFCCP Audits 4,000 -4,500 Locations Annually

Out of 285,000 Contractor Establishments

• Works out to 1.5% Chance of Selection

If Selected, What Next?

Scheduling Letter

AAP and Supporting Documentation

30 Day Response Time

What to Expect

The Full Desk Audit

– Extensive Data Requests

– Policies, Practices, Procedures

– Filing VETS-100A?

– EEO-1 Reports?

– Personnel Activity Reports • Applicants, Hires, Promotions, Terminations

– Goal Attainment, Good Faith Effort

What to Expect

Examine Differences in Selection

– Male or Female, Minority or non-Minority

• Reasons for non-Selection: Hires, Promotions

• Reasons for Termination

Outreach, Recruitment Efforts

– Documentation of Contacts with Agencies

• Proof of Job Listing

Maternity Leave

Verify Self-Identification Procedures

What to Expect

A Long Time to Complete Audit

Incessant, Often Detailed Data Requests

Short Turn-Around Times Demanded

Long Periods of Inactivity, Followed by New Demands

Closure with Conciliation Agreement

– Most with Insufficient Outreach

– Many with Inadequate Recordkeeping,

Documentation

– Some with Financial Remedies

• Mostly Failure to Hire

Questions?

Stan Koper

Senior Vice President

Gaucher Associates

50 Oliver Street, Suite 212

North Easton, MA 02356

617-965-3589 [email protected]

Catherine Moreton Gray

Attorney

McCarter & English, LLP

CityPlace I

185 Asylum Street

Hartford, Connecticut 06103

860-275-6709 [email protected]

eeo and affirmative action update - ncma boston · 2018-01-02 · eeo and affirmative action update...

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