We Get Contracting: Episode 4 — Despite Dramatic Changes, Affirmative Action Obligations Still Exist

Transcript

Scott Pechaitis  
Principal, Denver

Hi everyone, and welcome back to the We get Contracting Podcast. I'm Scott Pechaitis, and I'm a co-leader of the Government Contracts and Compliance group here at Jackson Lewis. Today we're going to be talking about some of the changes to affirmative action planning and the requirements from OFCCP. I'm joined today by my dear friend and colleague Laura Mitchell.

Laura wears many hats for the firm. She, in addition to being a member of the Government Contracts group, is also the leader of our specialty pay equity practice, and she is a contributing editor to our government contractors blog, which is called the GovCon Employment Exchange. Laura, thanks so much for being with us today. 

Laura Mitchell  
Principal, Denver

Hi, Scott. Thanks. It's fun to be here on the other side. I'm usually asking the questions. Now I get to answer them. Thanks for having me. 

Pechaitis  

Laura and I, for many years, have been assisting employers with their affirmative action obligations. Today we're going to talk about some changes and what's left in the affirmative action world, and what requirements are still in place for government contractors and subcontractors. This is following the big news recently that OFCCP is ending the requirement for contractors to collect disability status information from applicants and employees. Laura, why don't we start there? What happened? What is this change? 

Mitchell  

This certainly is a timely topic because things have changed, as we will discuss. If there's one thing I want everyone to walk away from our discussion with today, it's the reminder that federal contractors' affirmative action obligations have not disappeared. While they have changed dramatically, there are still actions in place and requirements contractors need to be aware of. 

What has just happened is that, on August 21st, OFCCP published a final rule making changes to the regulations implementing Section 503 of the Rehabilitation Act. These were proposed changes that we've been waiting for months for OFCCP to take action on. We anticipated changes; we just didn't know when or to what extent. 

These changes will take effect on September 21st. The biggest one, as you alluded to, is that contractors are no longer required to ask applicants or employees to voluntarily identify their disability status. If you remember back in 2013, this was the biggest change in the regulations contractors had seen for quite some time, when we saw revisions to the veterans and disability regulations to implement obligations to start soliciting this information. Now, OFCCP has revised the regulations to remove these obligations. 

Pechaitis  

Got it. Are there additional changes? 

Mitchell  

There are additional changes. They all stem from this data collection. If you no longer have the data, then you can't calculate the seven percent utilization goal that was required as part of the affirmative action plan. The rule eliminates that obligation as well. 

Pechaitis  

You mentioned that contractors are still required to prepare written affirmative action plans. What do these changes mean for the actual development of those affirmative action plans? 

Mitchell  

Certainly, the most obvious change is that there's not going to be a quantitative component to the affirmative action plan. Prior, we had data collection, a workforce analysis, the utilization goal calculation, and the narrative component, which is the processes you had to review, the practices you needed to ensure you were following with respect to recruiting and outreach. 

All of those are still in place. The AAP is maybe simplified because you don't have data and these other components, but it still is substantial with respect to what you have to do around these non-data elements. 

Pechaitis  

That makes sense. What I've seen OFCCP say in their comments accompanying the final rule is that moving away from the quantitative to more of a qualitative type of review will present some challenges. What's the bottom line in terms of ensuring contractors and subcontractors remain in compliance? What should they do? 

Mitchell  

The first thing is to coordinate with your legal counsel around your approach to data collection going forward. You now have the revocation of the requirement to solicit disability status. We have the changes that happened with 11246, where we were no longer required to solicit race and gender. The difference here is that OFCCP is anchoring its decision and rationale for the rule change in the belief that solicitation of disability status is in violation of the ADA. 

There are still some states that require this information to be collected and reported. Minnesota is top of mind. Consulting with legal counsel as to where your organization is and what it needs to do to ensure it's not running afoul of any laws is important. If you were not collecting this information for any other obligation than preparation of your federal affirmative action plan, then you should stop that collection and stop using the form you had been using, as that is no longer an authorized collection mechanism. 

Make sure legal counsel is involved so everyone is aware of the risks and on the same page with respect to risk tolerance. Then follow the next steps to ensure you're in compliance with that decision-making. Those are the first two steps. 

OFCCP did change the coverage threshold a bit. The dollar value of the contracts that trigger coverage went up. You need to evaluate and make sure you're still covered under the statute. The biggest piece is figuring out how you are going to prepare and implement your new AAP going forward. 

As we talked about, many obligations still remain, like assessing the effectiveness of your outreach efforts, making sure candidates are aware of the accommodation process, and ensuring you're listing your jobs appropriately. The biggest change is probably how we assess the effectiveness of outreach efforts without the data. 

Pechaitis  

Certainly, still a lot of work to be done there. That's the disability affirmative action plans. What about affirmative action plans for protected veterans? Have there been any changes there? 

Mitchell  

There have been no substantial material changes to your veteran affirmative action plan requirements. That is key and important to remember. We have wholesale changes to disability requirements, but no changes to veteran data collection or reporting. There is a disconnect there. 

It was pointed out in the comments that, as part of your veteran self-ID solicitation, there is a category of protected veteran: disabled veteran. The distinction seems to be that you're not asking applicants or employees to identify as a specific type of covered veteran under the VEVRA regulations, just whether they fall into one of the categories. It seems subtle, but it's critically important. 

One of the first things is to ensure your process allows you to toggle on the veteran self-ID while toggling off the disability ID. 

Pechaitis  

With toggling off the disability ID, a popular comment I've seen is that you want to make sure you can turn it back on if things change again in the future. 

Mitchell  

One of the things to remember about veterans, and just to plug because we're in the middle of the reporting period, is that the VETS-4212 reports are due by September 30th. Another reason we still have to collect veterans’ data is that you have to report on employee and hire veteran status. You don't have to report on applicants, but that is still part of the data collection. Make sure that deadline is on your calendar. 

Pechaitis  

Great reminder. Thank you, Laura. Let's pivot and talk about risk. Where do you see the current enforcement risks with OFCCP? Is OFCCP planning audits? Are contractors required to certify their affirmative action plan compliance? 

Mitchell  

As of today, OFCCP has not announced any broad audit scheduling initiative or active auditing activity. We saw that come to an end with the new executive orders at the beginning of 2025, and we have not seen any resurgence. 

Where we do see OFCCP activity is complaint investigations. OFCCP actively investigates individual claims of discrimination brought under Section 503 and VEVRA. These are areas where there is risk and exposure. If OFCCP is investigating a charge under VEVRA for a disabled veteran, that opens the door to start asking about your accommodation processes and what you're doing for individuals with disabilities. You want to make sure you're not ignoring disability affirmative action obligations in light of this new rule. 

Pechaitis  

That makes sense. I've seen many times in those complaint investigations they ask about other affirmative action plan processes and reports. It can turn into a mini audit. 

Mitchell  

Yep. You asked about certification. A couple of years ago, OFCCP released a certification portal where you would certify compliance with affirmative action obligations. That has not come back online, and there's no chatter that it will, at least in the same vein. 

What we do have potentially are certifications and verifications under the executive orders that we are in compliance with our non-discrimination obligations under civil rights laws. That would encompass the ADA and other laws. We don't want you to operate in cylinders where we're not thinking about the broader scope just because it doesn't say VEVRA or Section 503. Compliance with the ADA is important because you could be certifying compliance with that. 

Pechaitis  

Excellent. Great reminder. Any final thoughts you'd like to leave people with today? 

Mitchell  

The biggest mistake would be for contractors to assume affirmative action is over for federal contractors. We've talked through the existing requirements, but as we have been seeing, the pendulum swings back and forth. To the extent we see erosion of these requirements now, they could come back in full force or stronger in a couple of years. 

It's imperative to maintain good, solid practices because it'll make it easier to adjust to future requirements. You still have an obligation to your employees to ensure equal opportunity, including making sure jobs are accessible and that you are not having standards that go beyond what's required for the job. All of these things that go into being a good equal opportunity employer also help you comply with disability and veteran affirmative action obligations. 

Pechaitis  

Wonderful, very insightful. Laura, thank you. This has been educational. Thank you for helping us understand these new obligations and the current landscape. Really appreciate you joining us today. 

Mitchell  

My pleasure as always. Thanks for having me. 

Pechaitis  

Everyone, thank you so much for joining us. We'll see you next time on the We Get Contracting Podcast. We're monitoring how OFCCP implements this rule change as it rolls out. We're on the lookout for additional changes impacting federal contractors and subcontractors. Please keep your eyes on our blog, the GovCon Employment Exchange, and feel free to reach out at any time. Thanks so much, everybody.