The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Friday. Here are this week’s developments:
JULY 16, 2014 CSALS NOT RETIRED AT THE END OF FY 2014: The tradition at OFCCP the last several years had been to retire the CSAL lists of coming potential audits at the end of each OFCCP Fiscal Year (FY 2015 began October 1, 2014). This year, however, OFCCP is still continuing to issue audit Scheduling Letters in FY 2015 based on OFCCP’s July 16, 2014 CSAL list and despite OFCCP’s Fall CSALs. NOTE: There is nothing unlawful about this practice. It is just new and different from what has been OFCCP’s practice the last several years. Bank of America had challenged as a violation of the Fourth Amendment OFCCP’s practice several years ago of NOT retiring the CSAL list in each Fiscal Year. However, a federal court ruled that practice, of what we call “slop-over” audits, not unlawful. Nonetheless, in the wake of the BofA decision, OFCCP had years ago exercised its discretion to retire the CSAL lists at the end of each Fiscal Year and issue new Fall CSALs soon after each Fiscal Year began.
TWO NEW OFCCP FAQs ON 4212 POST-OFFER SELF-IDs: In a story we broke during the NELI Affirmative Action Briefings around the country in October and further reported in DE’s December 11, 2014 Webinar for Members, OFCCP’s 4212 Post-Offer Self-ID regulations require contractors to invite new hires, at the post-offer/pre-employment stage, to voluntarily report they are a protected veteran as specified in the Veterans Employment and Training Service’s (V.E.T.S.) protected veteran reporting regulations. In September 2014, OMB approved Final V.E.T.S. regulations replacing the VETS-100A form (as expected) with a new VETS-4212 reporting form, BUT both broke tradition and surprised OFCCP and federal contractors by requiring only what V.ET.S. and OFCCP are now calling “aggregate reporting” of protected veterans on the annual VETS-4212 reporting form and not by what the agencies are now calling the four “individual protected veteran categories.” We asked Pat Shiu to speak to these issues when she spoke at the San Francisco NELI Affirmative Action Briefing in late October and to confirm that contractors could nonetheless exercise their discretion to invite new hires POST-OFFFER/PRE-EMPLOYMENT (that timing is legally important) to voluntarily declare which of the four individual protected veteran categories the new hire may fall into, despite the more limited information needed to complete the new VETS-4212 form. Pat did so and OFCCP has now simply codified OFCCP’s understanding of its post-offer self-ID regulations in these new FAQs in light of the developments with the VETS-4212 reporting form for 2016. We explained in the December DE Webinar, Recent Significant OFCCP Developments and How these Changes Affect You, that contractors may wish to know whether any “Recently Separated” protected veteran ALSO qualifies as a protected veteran in any of the remaining three categories defining protected veteran eligibility. OFCCP’s new FAQs are here: http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Fox Report, please contact your membership representative at 866-268-6206 (for DE members), or send an email to Candee Chambers at candee@directemployers.org with your ideas.
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