Category Archives: Affirmative Action
A newly enacted Minnesota statute provides that a “private nonpublic employer” may grant a preference to veterans in hiring and promotion. See S.F. No. 1599. A preference may also be granted to the spouses of certain disabled veterans or the surviving spouse of a deceased veteran. The term “veteran” under the statute includes those who are honorably separated from the armed forces and who have met certain active duty criteria. The bill was cited as one of a number of measures to expand opportunities for veterans and address an extremely high unemployment rate for veterans.
Minnesota law has long required public employers to grant preferences to veterans in hiring and promotion and, with some exceptions, prohibits public employers from removing veterans from their positions except for incompetency or misconduct after a hearing. See Minn. Stat. § 197.455. The new law is permissive rather than mandatory for private employers, although all employers should continue to keep in mind any other obligations they may have, including those to rehire veterans under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).
The new law addresses hiring and promotion, but not removal from a position. It expressly states that granting a preference will not violate local and state human rights laws. That language should protect employers from claims that granting a preference in hiring or promotion constitutes gender or age discrimination under the Minnesota Human Rights Act. The new law does not, however, expressly override other claims, including those under federal equal employment opportunity laws. Whether it will be interpreted as precluding those claims is unclear at this point. In the past, purely voluntary preferences, have been subject to challenge under Title VII and certain other federal laws, while several challenges to preferences granted as required under state veteran’s preference statutes have been rejected.
Takeaway: Public and private employers should be aware of the statutory protections and opportunities existing for veterans, including USERRA and the existing Minnesota Veteran’s Preference statute. Private employers considering granting a preference to veterans in line with the new law, Minn. Stat. §197.4551, should make sure that the grant is also in compliance with any other obligations they may have, including obligations under collective bargaining agreements and federal law.
The annual EEO-1 Report filing deadline is quickly approaching. The EEO-1 Report is a compliance survey report mandated by federal statute and regulations. It requires employers to categorize employment data by race/ethnicity, gender and job category and file a report with the United States Equal Employment Opportunity Commission (EEOC). Most private employers who have 100 or more employees must file this report, along with private employers with fewer than 100 employees if the company is affiliated with another company and the entire enterprise employs a total of 100 or more employees. Additionally, most federal government prime contractors or first-tier subcontractors with 50 or more employees and a contract worth $50,000 or more must also file the EEO-1 Report. The filing deadline for the EEO-1 Report is September 30th.
Remember that is important to correctly answer the question on the EEO-1 Report about whether the employer is a federal government contractor. Incorrectly answering this question may lead to an audit by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) of the employer’s affirmative action program.
Takeaway: Employers should take care to not only file the EEO-1 Report in a timely fashion, but to also carefully complete the Report so that it is accurate. Inaccurate or incomplete reports may lead to further investigation by the EEOC or the OFCCP, which employers would be wise to avoid if possible. More information about the EEO-1 filing requirements may be found on the EEOC’s website at www.eeoc.gov/employers/eeo1survey.
Private employers with 100 or more employees are required each year to file an EEO-1 report with the Equal Employment Opportunity Commission’s Joint Reporting Committee. 29 C.F.R. § 1602.07. Related entities that constitute a single enterprise who together employ at least 100 employees are also required to file. Generally, the form requires employers to provide summary data as to the gender and race of their workforce in ten broad job categories.
In addition to companies with 100 or more employees, all federal contractors or first-tier subcontractors with 50 or more employees and a single government contract of $50,000.00 or more are also required to file an EEO-1 report. These are the same threshold number of employees and contract amount that triggers a contractor’s or subcontractor’s obligation to develop an affirmative action plan. 41 C.F.R. § 60-2.1.
Section C of the EEO-1 report form inquires as to whether an employer is such a government contractor or subcontractor in its question 3. Employers who are contractors at these thresholds should answer the question by checking the “yes” box. Many times, however, employers who are not government contractors or who do not meet these thresholds rush completion of the EEO-1 form and inaccurately answer this question in the affirmative. Doing so tells the federal government that the company is a government contractor subject to affirmative action plan requirements. It should not then be a surprise if the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) notifies the company that it is scheduling an audit of the company’s affirmative action program.
Takeaway: To avoid miscommunicating government contractor status, employers should carefully complete the annual EEO-1 report.
Companies interested in doing business with the State of Minnesota should be aware that a state contract may trigger affirmative action obligations.
What Are the Requirements?
If a company has more than 40 full-time employees within the State of Minnesota and is pursuing a contract for goods and services in excess of $100,000.00, the company must produce to the contracting state agency a certificate of compliance which confirms the existence of the company’s affirmative action plan. Minn. Stat. § 363A.36. Similar to an affirmative action plan required when contracting with the federal government, a Minnesota plan regards the employment of racial minorities, women, and qualified disabled individuals. To obtain the certificate of compliance, the company must first submit its affirmative action plan to the Minnesota Department of Human Rights for approval. Certificates are valid for a period of two years. Separate contracts of less than $100,000.00 are generally not aggregated to trigger the threshold amount.
What about companies who are headquartered outside the State of Minnesota who bid on state contracts?
Those companies must also obtain and submit a certificate of compliance if the contract value is in excess of $100,000.00 and the company has more than 40 full-time employees in the state where the company has its principal place of business. Alternatively, the out-of-state company can certify that it is in compliance with federal affirmative action requirements.
Certain Minnesota cities and counties also have affirmative action plan requirements for contractors. Minnesota companies seeking to do business with other state or local governments may face similar affirmative action plan requirements.
Takeaway: Companies seeking to do business with the State of Minnesota or other governmental entities should look before they leap when entering into contracts that may trigger affirmative action requirements.
On December 9, 2011, the Office of Federal Contract Compliance Programs (OFCCP) published a notice of proposed rulemaking regarding the disability discrimination regulations implementing Section 503 of the Rehabilitation Act. The OFCCP is the branch of the U.S. Department of Labor which enforces affirmative action obligations for government contractors.
Seeking to strengthen employment opportunities for individuals with disabilities, the OFCCP is proposing several significant changes to the existing regulations. If these proposed regulations are adopted, government contractors will have to:
- Review their personnel procedures at least annually to make sure that their Section 503 obligations are being met.
- Use particular language developed by the OFCCP to invite applicants and employees to voluntarily self-identify whether or not they have a disability.
- Include a rather lengthy Equal Employment Opportunity clause in every federal contract and subcontract.
- Comply with particular job listing requirements and engage in specific outreach and recruitment efforts.
- Issue written reasonable accommodation procedures.
- Engage in increased data collection.
- Modify compliance evaluation procedures.
- Establish a national utilization goal of 7% individuals with disabilities for each job group.
- Develop action steps for addressing any underutilization.
- Implement specific training programs.
- Maintain relevant records for five years.
These new obligations are anticipated to require covered contractors and subcontractors to spend significant additional time and resources on compliance efforts. Whether these steps will result in increased opportunities for disabled workers is uncertain.
Public comments on the proposed revisions to the Section 503 regulations are being accepted until February 7, 2012.