Section 503 and VEVRAA - Equal Employment Opportunity Clause Requirements
The OFCCP's regulations implementing Section 503 of the Rehabilitation Act requires federal contractors (construction and non-construction alike) that hold a single federal contract or subcontract valued at more than $10,000 in a single 12-month period to comply with the equal opportunity (EO) clause included in direct federal contracts, and include that clasue in subsequent, qualifying subcontracts (often referred to as the "flow-down" requirement).
The OFCCP's regulations implementing the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) requires contractors with a contract valued at more than $100,000 to do the same.
Note that federal procurement agencies are not required to insert the Section 503 and VEVRAA EO clauses in direct federal contracts unless those contracts are valued at more than $15,000 and $150,000, respectively. Accordingly, even though the OFCCP has not updated their regulations, the agency will not pursue enforcement unless contractors meet the higher thresholds.
The EO clauses lay out the basic promist not to discriminate on the basis of disability or protected veteran status, giving the OFCCP authority to investigate and remedy complaints. They also lay out several notice and posting obligations to ensure equal employment opportunity.
"EEO is the Law" Poster
The EO clauses require contractors to "post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.” OFCCP provides this notice in the form of a formatted poster titled, “Equal Employment Opportunity is the Law” (referred to as the “EEO is the Law” poster for short). This should be familiar because the OFCCP's regulations implementing Executive Order (E.O.) 11246 have the same requirement.
Contractors are required to physically display the poster where employees and applicants can see it, typically in break rooms and/or in the Human Resources office. The Section 503 and VEVRAA EO clauses also require contractors to provide a link to the “EEO is the Law” poster on their career website.
OFCCP also allows contractors to make the poster available electronically, where appropriate. Typically this is the solution of choice for employees that work remotely, either from home, from client sites not controlled by the employer, or “on the road.” Contractors must be prepared to demonstrate that employees receiving the notice electronically have access to it (are provided or otherwise have laptops or other devices, for instance).
The EO clauses require contractors to “send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, that the contractor is bound by the terms of” VEVRAA and/or Section 503 (as applicable), "and is committed to take affirmative action to employ and advance in employment, and shall not discriminate against" protected veterans and/or individuals with disabilities. Note that the E.O. 11246 EO clause contains a very similar requirement.
Note also that the requirement is union-specific and is not a recurring annual or periodic requirement. OFCCP expects that notices will be sent to local union officials (not the national office).
Visit the Union Notification BCGi Resources page for more detailed information and a sample notice letter.
EO Clause "Flow-Down"
The Section 503 and VEVRAA EO clauses require contractors to include the clause in every subcontract or purchase orders that meet the contract dollar thresholds discussed above.
OFCCP’s regulations state that the EO clause must be incorporated into the contract in such a way as to “bind” the other contracting party. In other words, it is part of what they agree to when they enter into an agreement to do business with your organization. This is a bit of a misnomer in that the contract clause itself does not technically create or confer any obligations, just as its absence or omission does not relieve a subcontractor of potential obligations. The clause is “binding” in that if a covered subcontractor violates its provisions, OFCCP can order the prime or higher-tier contractor to enact remedies to enforce the EO clause.
Contractors have the option of including the clauses in their entirety (several paragraphs of text) or incorporating the clause “by reference.” “By reference” simply means including shorter language that refers to the contract clause, leaving it up to the other party to find and read the whole text of the clause on their own, if they are so inclined.
The OFCCP does not prescribe any particular language or format for incorporating the EO clause by reference with regard to E.O. 11246, but it does with respect to Section 503 and VEVRAA. Visit the EO Clause “Flow-Down” Requirement BCGi Resources page for more detailed information.
The Section 503 and VEVRAA EO clauses require contractors to state “in all solicitations or advertisements for employees” that all qualified applicants will receive consideration for employment and will not be discriminated against on the basis of disability or protected veteran status. This is colloquially referred to as the “EO tagline.”
If your current EO tagline reads, “EEO/AA m/f/d/v,” it is not compliant.
41 C.F.R. § 60-1.41 (external link) provides contractors with several options for meeting the EO tagline requirement:
- State expressly, “All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin”
- Include an “appropriate insignia” prescribed by OFCCP (which is not currently available)
- Group advertisements together and state expressly that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin just once (rather than on each advertisement)
- Use the phrase, “an equal opportunity employer.”
Not surprisingly, most contractors choose to use the simpler and shorter phrase, “[Company] is an equal opportunity employer.”
OFCCP’s Section 503 regulations require contractors to, at a minimum, add the word, “disability” to the end of the standard E.O. 11246 tagline.
OFCCP’s VEVRAA regulations require contractors to, at a minimum, add the word, “vet” to the end of the standard E.O. 11246 tagline. BCG recommends that contractors spell out “veteran” rather than use the abbreviation, “vet,” which can be offensive to some veterans.
OFCCP guidance makes clear that abbreviating “disability” and “veteran” as “d/v” is not compliant. Nor is the common abbreviation, “m/f/d/v,” for POC ("minorities"), women (female), individuals with disabilities, and veterans.
Such hyper-abbreviations were popular during the George W. Bush administration, including replacing "an equal opportunity employer" with "EEO/AA," though that was never officially endorsed by the OFCCP. During the Obama administration, the agency clamped down on technical requirements like the EO tagline and cited contractors for their use. However, recent OFCCP guidance (external link) has now officially endorsed the abbreviation, "EOE," to stand for equal opportunity employer.
Accordingly, the shortest, compliant EO tagline for contractors that are subject to all three EO clauses (women/POC, individuals with disabilities, and protected veterans) is:
EOE disability vet
However, as noted above, some veterans may be put off by the abbreviation, "vet," so BCGi recommends spelling out "veteran" whenever possible.
Veteran Job Listing Requirement
The OFCCP's VEVRAA EO clause requires contractors to "immediately list all employment openings...with the appropriate employment service delivery system where the opening occurs." The "employment service delivery system" (ESDS) the OFCCP is referring to is more commonly referred to as the state job bank.
Contractors are only required to list their job openings with state job banks during the performance of a qualifying federal contract, but the jobs contractors must list are not limited to those at facilities where contract obligations are performed. Nor are they limited to jobs that require work on a contract.
Listing with the state job board must be made "at least concurrently with the use of any other recruitment source or effort." Note that many contractors utilize third-party vendors that "scrape" their career page and distribute job postings to a variety of diversity sites, including state job boards. That necessarily means that the company has posted the job publically before listing the opening with the state job board, technically a violation of the plain language of the requirement. However, the OFCCP does not appear to be interested in writing violations for this and forcing contractors (and their vendors) to re-work these arrangements.
In audits, the OFCCP typically asks for document evidence that contractors' jobs were posted on state job boards. However, the regulations require contractors to "list" their job openings, i.e., provide state job boards with the information necessary to post on their sites. However, contractors cannot control what the state job boards do with the information once received. Contractors should, however be able to produce some evidence that its job openings were sent to the state job board(s) to be listed. And a best practice would be to follow-up periodically to verify that contractors' job listing are actually being posted and, if not, inquiring with the state job board as to why.
Job Listing Exceptions
The OFCCP's regulations do not technically require contractors to post all job openings. Executive and senior management positions, positions lasting three days or less, and positions that "will be filled from within the contractor's organization" are exempted. Most contractors simply list all openings for which they intend to consider external applicants.
Note that the regulations do not exempt jobs the contractor intentds to fill "internally" or with existing employees. Rather the regulations use broader language regarding jobs that will be filled "from within the contractor's organization." It is reasonable to interpret that language to exclude situations such as temp-to-hire, intern-to-hire, and even contractor conversions. The purpose of the requirement is to ensure that federal contractor job openings are seen by veterans and that those veterans have an actual opportunity to apply for and land the job. There is no point in listing the job opening with the state job board if any applicants who see it there won't be considered.
Additional ESDS Requirements
Contractors must also provide the state job boards with the name and location of each hiring location within the state and the contact information for the contractor official responsible for hiring at each location. Should that information change, contractors are required to update the state job boards. If a contractor uses any third-party job search organizations, contact information should be provided for them as well.
When the OFCCP implemented this requirement in 2014, existing contractors sent out ESDS notification letters, typically with contact information that included a dedicated email address and a job title (but not the name of an official) so that as personnel changed, the contact information would remain the same, avoiding the need to send updates.