Attorneys, Consultant Provide ‘Game Plan' for OFCCP Rules

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

By Jay-Anne B. Casuga  

Nov. 25 --Federal contractors should begin making budgetary and other practical decisions to comply with upcoming Labor Department Office of Federal Contract Compliance Programs regulations pertaining to the hiring and employment of individuals with disabilities, two management attorneys and a consultant said Nov. 22 during an American Bar Association webinar.

As part of a compliance “game plan,” contractors should set aside some budget dollars to train their employees about new contractor requirements under the final regulations implementing Section 503 of the Rehabilitation Act (64 BTM 315, 10/1/13), Lynn A. Clements, a management attorney with Jackson Lewis in Baltimore, said. The regulations will generally take effect next March.

Employers also should ensure that their human resources information systems, applicant tracking systems and online application systems comply with the rules, said Clements, who previously served as acting director and deputy director of the OFCCP's Division of Policy, Planning and Program Development.

Along with Clements, T. Scott Kelly, a management attorney with Ogletree Deakins in Birmingham, Ala., and Katherine McCary, founder of disability diversity firm C5 Consulting LLC, offered other suggestions and resources to help contractors identify and recruit qualified individuals with disabilities and to help them remain in the workforce.

Consider Training

Among the new provisions, the OFCCP's Section 503 rules require contractors to invite job seekers to voluntarily self-identify as disabled at the pre-offer and post-offer phases of the hiring process.

Contractors must also extend such invitations to current employees, during the first year they become subject to the requirement and every five years thereafter.

Clements said contractors potentially will be collecting a “vast amount” of information about disability status.

As such, they should consider providing new, ongoing training programs for recruiters, human resources employees and managers on how to handle and manage that data, she said.

“You want to be proactive about that and think through how you educate your workforce,” Clements said.

Contractors potentially will be collecting a “vast amount” of information about disability status. As such, they should consider providing new, ongoing training programs for recruiters, human resources employees and managers on how to handle and manage that data, she said.  


-- Lynn A. Clements, a management attorney with Jackson Lewis in Baltimore

Kelly said training in how to provide reasonable accommodations for an applicant's or employee's disability also “would be a good use of budgetary monies for 2014.”

He said he believes contractors will receive “a lot” of questions from OFCCP compliance officers about reasonable accommodation and whether they engaged in an interactive process with disabled employees. Documentation, he said, will be “key.”

In addition, Clements said training potentially could help contractors avoid discrimination claims under Section 503 and the Americans with Disabilities Act.

For instance, she said, a potential reaction from a hiring manager who becomes aware of an applicant's disability might be to ask “inappropriate questions about the individual's limitations” that might run afoul of federal disabilities law.

Training could help managers understand what “what's lawful to ask and what's not,” she said.

Evaluate All Systems

In addition, Clements said contractors should think about the changes that might be needed for their human resources information systems, and associated costs, so they can budget for potential modifications and implement them prior to the rules' effective date.

“IT changes can sometimes move glacially slow,” she said. “That's something that needs to get on your radar screen.”

Additionally, she said contractors should consider whether their online application systems are accessible to individuals with disabilities.

In doing so, C5 Consulting's McCary said contractors should ensure they provide a “zero-out” option for individuals who can't use the online system.

People who can't apply online should be able to contact someone at the company to apply for jobs, she said.

“OFCCP has been checking that,” she said.

Kelly added that it would be a “great practice” for contractors to establish a quarterly routine of reviewing the accessibility of their websites and to ensure they continue to include the zero-out information.

Phased-In Compliance

In addition to collecting disability status information, the Section 503 rules also require contractors to gather and retain for three years the following data: the total number of job openings and jobs filled; the total number of job applicants for all jobs and the number of applicants known to have disabilities; and the total number of applicants hired and the total number of individuals with disabilities hired.

When contractors must begin collecting this data is still an “open question,” Clements said.

She explained that the regulations allow for “phased-in compliance” for contractors that have in place on March 24, 2014, affirmative action plans (AAP) pursuant to the previous Section 503 rules.

In such a scenario, a contractor may delay until the beginning of its next AAP cycle compliance with subpart C of the new regulations, which includes the self-identification and hiring data requirements.

Clements asked what kind of hiring data analyses the agency would expect the contractor to complete in that first full plan year if the contractor chose phased-in compliance and the OFCCP agreed that the contractor didn't need to begin collecting disability status information until its first full AAP year.

“It's a critical question that we're hoping OFCCP will answer soon,” she said.

When to Collect Data

Ogletree's Kelly observed that contractors might be tempted to try to “get ahead” with compliance obligations related to disability status information.

But both he and Clements recommended that contractors refrain from beginning to collect such data at least until the regulations become effective on March 24.

“Don't pull the trigger early, so to speak,” Clements said.

Kelly explained that the OFCCP has yet to finalize the invitation to self-identify form, a draft of which currently is under review at the Office of Management and Budget (64 BTM 366, 11/12/13).

In addition, he pointed to the Equal Employment Opportunity Commission's August 2013 opinion letter stating that contractors' compliance with the pre-offer invitation requirement for affirmative action purposes wouldn't violate the ADA (64 BTM 281, 9/3/13).

Given that the OFCCP's regulations aren't in effect yet, Kelly said, there's no current requirement for contractors to collect disability status information and the EEOC's letter might not yet provide ADA protection.

Moreover, he said an issue exists regarding the deference courts will afford to the EEOC's letter, which is not a statute, regulation or a legal decision, in the event someone challenges an employer's ability under the ADA to solicit disability status information at the pre-offer hiring stage.

Utilization Goal

Additionally, the new Section 503 rules introduce for the first time a requirement for contractors to establish a nationwide 7 percent utilization goal for individuals with disabilities in each job group of their workforce.

If a contractor has fewer than 100 employees, the final rule requires the 7 percent goal to be applied to the entire workforce.

The OFCCP has repeatedly stated that the 7 percent utilization goal is not a quota, and that contractors won't be subject to a fine, penalty or sanction solely for failing to meet the goal.

During the webinar, Clements reiterated that point. She said if a contractor doesn't meet the goal, it must review its personnel practices to determine whether there are any workplace barriers to equal employment opportunity.

The OFCCP's compliance officers, she said, likely will look at what contractors have done in response to not attaining the goal and whether those actions have been effective.

“Have you moved the needle at all over a multi-year period?” Clements asked. “If you have not, then I think there's room for the agency to say: that is not enough to be in compliance. They are not citing you for not meeting the goal, but for not evaluating your practicing and developing action-oriented programs.”

Kelly added that good-faith outreach and recruitment efforts “are really key at keeping OFCCP at bay,” and that “documentation is going to be really important” to measure the effectiveness of those efforts.

“But it's not going to be documentation for documentation's sake,” he said.

Kelly said analyzing the effectiveness of outreach and recruitment could be a “blessing in disguise” for contractors so that they can better evaluate the returns on their investments in those areas.

Outreach, Recruitment Strategies

McCary offered several strategies and recommendations for contractors to bolster their outreach and recruitment efforts.

For example, she said, contractors can designate a coordinator at a high managerial level for targeted disability outreach, reach out to disabled veterans, sponsor and participate in job fairs, attend campus recruitment events, join employer networking groups, and engage current employees as referral sources by creating disability-focused employee resource groups.

In addition, she said senior leaders should affirm their companies' commitment to hiring individuals with disabilities, not because they are required to do so, but because such workers “have the talent and add to the bottom line.”


To contact the reporter on this story: Jay-Anne B. Casuga in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at