Affirmative Action Alert

For a printer-friendly copy of this Affirmative Action Alert, click here.

The Office of Federal Contract Compliance Programs has issued the form that contractors must use to solicit self-identification of disability information from applicants and employees. The revised regulations require that contractors solicit this information from (1) applicants; (2) individuals who have been offered a job, but before they start work; (3) all employees within one year of being subject to these requirements of the new regulations; and (4) all employees on a five-year basis thereafter. The revised regulations mandate that contractors solicit this information "using the language and manner prescribed by the Director and published on the OFCCP website."

Although not in the regulations, the OFCCP is informally advising contractors that they may use this form either in its original hard copy format or electronically. If provided electronically, it must include the Office of Management and Budget control number and expiration date (which has not yet been provided), use the identical text in the identical order, and use a sans serif font of at least 11 point or larger.

The OFCCP has also finally explicitly answered questions about the timing for compliance with the new self-identification requirements under Section 503 of the Rehabilitation Act and the Vietnam Era Veterans' Readjustment Assistance Act. A contractor with an existing affirmative action plan in place before March 24, 2014 (the effective date of the revised regulations) will not be required to solicit pre-offer disability or VEVRAA status until the contractor updates its AAP. A contractor developing an AAP on or after March 24, 2014 must begin soliciting the pre-offer information from applicants as of the AAP date. In any event, the OFCCP is encouraging all contractors to begin soliciting the self-identification information from applicants as close to March 24, 2014 as practicable. For a more complete description of these and other requirements of the revised regulations, please see our prior AA Alert on this topic.

OFCCP Sued by Manufacturers Association

The National Association of Manufacturers and one of its affiliates has filed a lawsuit against the U.S. Deparment of Labor and the OFCCP, challenging the requirement that federal contractors post a notice informing employees of their rights under the National Labor Relations Act. The plaintiffs contend that the requirement exceeds the agencies' authority and violates contractors' rights under the First Amendment to the U.S. Constitution. As you will recall, President Obama issued Executive Order 13496 in 2009, requiring federal contractors to prominently post a notice informing employees of their right to organize, picket, and strike, among other things.

The National Labor Relations Board recently abandoned its efforts to require a similar posting by all employees covered by the NLRA, after courts struck down the rule on the same grounds asserted by the Manufacturers in their OFCCP lawsuit.

Because the NLRA covers much more than federal contractors, it is prudent for contractors to continue posting the OFCCP notice until there is a court ruling in the Manufacturers' suit. We will keep you up to date on this issue.

As always, if you have a question about any of this, please contact any member of Constangy's Strategic Affirmative Action Practice Group, or the Constangy attorney of your choice.

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Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit


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