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Record Keeping in Affirmative Action (Part 2)
In September of 2013, the Office of Federal Contract Compliance Programs (OFCCP) released updated regulations related to the Vietnam Era Veterans’ Readjustment Assistance Act, (VEVRRA) which covers protected veterans, and Section 503 of the Rehabilitation Act, which covers individuals with disabilities. These revised regulations created new challenges for federal contractors and subcontractors regarding record keeping in affirmative action. While a number of the record keeping requirements contained in the revised regulations for protected veterans and individuals with disabilities are similar to those found in the regulations for minorities and females, there are a few important differences.
Information That Must Be Maintained
The affirmative action regulations for both protected veterans and individuals with disabilities outline the types of records that need to be maintained. 41 CFR 60-300.80 in the Code of Federal Regulation regarding protected veterans and 41 CFR 60-741.80 regarding individuals with disabilities say the following:
“Such records include, but are not necessarily limited to, records relating to requests for reasonable accommodation; the results of any physical examination; job advertisements and postings; applications and resumes; tests and test results; interview notes; and other records having to do with hiring, assignment, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship.”
Other information that needs to be maintained includes the following:
- Affirmative action plans for protected veterans and individuals with disabilities as well as the supporting documentation for both plans.
- Information on outreach and recruitment efforts for protected veterans as well as outreach and recruitment efforts for individuals with disabilities.
- Records of data collection analyses that are required for protected veterans as well as records of data collection analyses for individuals with disabilities.
- Documentation of the annual hiring benchmark set for protected veterans. If using a benchmark other than on the one established by OFCCP, documentation on the factors that were considered in establishing the benchmark must be retained.
Format Used to Maintain Records
The regulations for both protected veterans and individuals with disabilities allow for federal contractors and subcontractors to use an electronic record keeping system to preserve employment and personnel records. The record keeping requirements apply equally whether the records are kept in a paper format or in an electronic format. If files are stored electronically, federal contractors and subcontractors must be able to convert electronic files into paper copies.
There is one exception to the rule noted above.s. If a federal contractor and subcontractor is unable to produce a paper copy of a disability self-identification form due to how that information is stored in an electronic system, OFCCP has indicated the following:
“A contractor that electronically invites voluntary self-identification of disability must retain a detailed log, spreadsheet or database of the data collected from each electronically completed form, without copies of each individually completed form, if the electronic system does not store completed forms. However, the contractor must also be able to demonstrate how they delivered and/or displayed the voluntary invitation to self-identify. This allows compliance officers to verify that contractors met their obligation to use the OMB-approved form.”
Similar to the regulations regarding minorities and females, the regulations regarding protected veterans and individuals with disabilities require that employment and personnel records must be accessible and available for inspection and copying upon request during an OFCCP compliance review.
How Long Records Must Be Maintained
As mentioned in Part 1 of this series, the regulations under Executive Order 11246 regarding minorities, females, and other groups require federal contractors and subcontractors to preserve employment and personnel records for either one year or two years. The number of years to maintain records depends on the number of employees the federal contractor or subcontractor has and the dollar amount of an organization’s federal contracts or subcontracts. These record retention requirements apply to most records regarding protected veterans and individuals with disabilities. However, the regulations for protected veterans and individuals with disabilities contain a few additional requirements.
The protected veterans and individuals with disabilities regulations contain a three-year record retention requirement for the following information:
- Outreach and recruitment efforts for protected veterans and individuals with disabilities
- Records of data collection analyses that are required for protected veterans and individuals with disabilities
- Documentation regarding the annual hiring benchmark for protected veterans
Failure to Preserve Records
Both the regulations for protected veterans and individuals with a disabilities indicate that if employment and personnel records are not preserved, OFCCP has the right to make a presumption that the documents that were not maintained would have been unfavorable to the federal contractor or subcontractor. Overcoming this presumption requires a federal contractor or subcontractor to show that the destruction of or failure to preserve the records resulted from circumstances beyond the contractor’s control.
If records are missing, OFCCP could issue a conciliation agreement requiring a federal contractor or subcontractor to make substantial changes to record keeping systems and procedures. For instance, if a federal contractor and subcontractor failed to preserve information on veteran or disability statuses of applicants, the agency may require the federal contractor or subcontractor to alter its systems to retain this information. The federal contractor or subcontractor might also be required to provide OFCCP with reports proving that the information is now being retained in a manner compliant with the regulations.
What Federal Contractors and Subcontractors Should Do
Federal contractors and subcontractors should review their current record keeping systems and procedures. They should ensure that they are in compliance with the record retention requirements found in the federal affirmative action regulations.
Since certain personnel and employment records under the regulations for protected veterans and individuals with disabilities have a requirement to be maintained for three years, federal contractors and subcontractors may want to consider maintaining all personnel and employment records for a three-year period. Retaining all personnel and employment records for three years would ensure compliance with federal record keeping requirements and help lead to success in an OFCCP compliance review.
Part 1 of this series on record keeping in affirmative action can be viewed here.