Regardless of where the Trump Administration takes the OFCCP, it seems likely that meaningful outreach for veterans and individuals with disabilities will remain a priority. Government contractors need to be mindful of what the regulations require as to the assessment of that outreach, what proof OFCCP is likely to ask for in an audit, and how contractors can meet these obligations.

Background and Introduction of Assessment Requirement

One of the regulatory sections that OFCCP strengthened in its 2014 revisions of the veteran and disability regulations was its section on external dissemination and outreach. Prior to March 2014, the veteran regulations at 41 CFR Section 60-300.44(f) or the disability regulations at 41 CFR Section 60-741.44(f) contained no requirement that a contractor perform an assessment of its outreach efforts. During compliance reviews under the old framework, OFCCP often would ask the contractor to demonstrate that it had engaged in outreach, and it was relatively easy to provide OFCCP with a list of the websites to which job advertisements had been distributed, or a list of the veteran-focused or disability-focused job fairs that the employer had attended. The compliance officer could ask for proof or verification that the employer had indeed engaged in such outreach through copies of emails, or documentation proving that the employer had registered to attend the job fair, and the like. This proof was one-directional. It simply required the contractor to keep tabs on its own communication outward; it did not require any evaluation of the results of that outreach.

That regulatory obligation changed when OFCCP’s revised veteran and disability regulations began to take effect in the spring of 2014, and continued throughout 2015 as more and more government contractor AAP data cycles required them to start complying with the new regulations. Recall that the outreach obligation falls under “Subpart C” of OFCCP’s regulations, and thus compliance was not instantaneous on March 24, 2014. As the contractor’s AAP data cycle renewed again, the contractor was expected to begin complying with the new regulations. Thus, not all employers began to comply in 2014. Some didn’t have to begin complying until as late as March of 2015. For that reason, calendar year 2015 saw little OFCCP enforcement on this topic. OFCCP honored its promise to the contractor community that it would afford employers a chance to ramp up and become compliant with these new outreach and assessment regulations, and OFCCP focused on compliance assistance during this timeframe.

Calendar year 2016, not surprisingly, saw an uptick in the number of questions that OFCCP began to ask during compliance evaluations about the contractor’s compliance with the new assessment regulation. This article is designed to help contractors meet their regulatory obligation by giving them some tips and tools to do an effective assessment of their outreach.

What Does the Regulation Require?

Because OFCCP’s veteran and disability regulations are mirror images of each other, we are going to quote only the veteran regulation here, which is known in shorthand as (f)(3):
  There is a lot in that regulation, so we are going to break it down into its subparts, including an explanation of some of the other regulation sections that are cross-referenced. In sum, for each outreach initiative undertaken over the course of the past 12 months, the contractor needs to assess it as “effective” or “ineffective” – would you do it again, or do you need to find something else effective? Keep in mind that if the contractor labels it as “ineffective,” the regulations require that the contractor “identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations.” The regulation uses the word “shall” (mandatory), not “should” or “may” (permissive). The list of sources enumerated in the veteran (f)(2) section include:
  The list of disability sources listed in the disability (f)(2) section include:
  Thus, there seems to be an incentive to try to find outreach sources that are effective.

Internal Audit, Reporting and Record Keeping

We would also be remiss if we didn’t mention that the assessment of these outreach obligations cannot be viewed in regulatory isolation. There are also corresponding (1) internal audit and reporting obligations and (2) longer record keeping obligations. Not only did OFCCP strengthen the notion of engaging in meaningful outreach by writing new section (f)(3) dealing with effectiveness of the outreach, it (a) shored up the regulations dealing with internal auditing on a periodic basis to see what’s working and what’s not working and (b) it extended the record keeping obligation just for these outreach documents and the applicant and hire counts under section (k) to three years.

Under the equal employment policy obligation, by identifying the government contractor’s top United States Executive in that policy – he or she has agreed that his or her organization is undertaking an annual internal audit of the effectiveness of the affirmative action program. Which in turn prompts the question, what evidence is the organization generating in order to meet that internal audit obligation? If there is supposed to be evidence of an internal audit, which is measuring the effectiveness of the contractor’s whole affirmative action program, it would seem that the contractor’s assessment of the outreach under (f)(3) would also help meet its obligation under the internal audit and reporting obligation (subsection (h)). Said differently, if the contractor is not developing the assessment, it’s possible for OFCCP to cite the contractor for three violations (outreach, internal audit, and record keeping), not just one.

As to the record keeping obligation, the regulation (known as (f)(4)) states: “The contractor shall document all activities it undertakes to comply with the obligations of this section, and retain these documents for a period of three (3) years.”

Conclusion

In conclusion, it is our recommendation that contractors (a) develop a tool that helps them track their outreach; (b) train recruiters on the importance of filling it out contemporaneously with the activity on some of the criteria they can use to assess the effectiveness; (c) assess the effectiveness in a manner that would also meet the internal audit and reporting regulatory requirements; and (d) ensure that these records are being maintained for at least three years from the making of the record or the personnel decision at issue.