Bloomberg BNA recently spoke with Stephanie R. Thomas, Ph.D., the founder and CEO of Thomas Econometrics, a human resources firm specializing in statistical and economic consulting, about the Office of Federal Compliance Programs' proposed rules to strengthen affirmative action programs for veterans and people with disabilities. In this Q&A, Thomas outlines what she thinks federal contractors should do to prepare for the new regulations, and discusses the agency's attempt to overhaul compensation audits aimed at federal contractors.

Bloomberg BNA: Many OFCCP observers are saying that the agency will probably not issue finalized rules and guidance on nondiscrimination provisions aimed at hiring veterans and disabled workers until after the Nov. 7^th election. In the meantime, what should federal contractors focus on right now as a way for preparing for the new regulations?

Thomas: Hiring issues should take top priority. We are starting to see the economy rebound and hiring is starting to pick up. In terms of finalizing proposed regulations by the OFCCP, we are likely to see activity on the hiring proposals first, especially with the April 2011 proposed rule under Section 4212 of the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), revising contractors' affirmative action and nondiscrimination requirements for certain military veterans.

I think the Dec. 2011 proposed regulations under the Section 503 of the Rehabilitation Act, which amend contractors' affirmative action obligations for individuals with disabilities, will probably go through, but those regulations will take a little longer to get finalized because there are more data analysis issues to sort through. Overall, I think veterans and disabled workers regulations will be approved in some form that is probably close to what they look like now.

As a contractor, you don't want to be in the position where you are waiting until the day the proposed regulations are finalized to start thinking about an approach to comply with the new rules. Right now, you don't necessarily need to take concrete action, but you do need to start thinking about and evaluating how the business would go about complying with the proposed regulations based on what they look like now.

Still, one of the big issues is accessibility of job application systems. The requirements for accessibility for individuals with disabilities have been on the books for awhile, but the OFCCP's interpretation of accessibility and contractors' definition of accessibility are different.

Often contractors will have an online applicant tracking system in place where potential candidates can submit resumes and express an interest in a position online. The tracking systems will note that if an applicant has a disability and needs assistance in terms of screen reading or an alternative method of applying, then the individual should call the phone number listed in the application and someone will process the application over the phone or we will make alternative arrangements. 

It's a good thing that a contractor is making an alternative process available. The real problem here, however, is that there is the potential for those applications to get lost in the shuffle because they are not coming into the organization as the same way as all the other applications are coming in.

I am not saying the applications are getting lost, but it creates the potential for them to be separated out and not really considered with the rest of the applicants. I think the issue of accessibility of people with disabilities in the job applicant process is going to be a priority for contractors in the next six to twelve months.

Bloomberg BNA: What about compensation practices in terms of a priority?  

Thomas: Compensation should always be on contractors' radar. There is a lot going on right now in the contractors' community with respect to compensation. The OFCCP is considering a compensation data collection tool and the Office of Management and Budget is reviewing the agency's proposal to rescind its compensation standards and guidelines.

Pay equity is a hot topic and will continue to be one for the next two to three years. The Equal Employment Opportunity Commission and the Department of Justice are also making gender equity a priority, so contractors definitely need to be paying attention to this issue.

However, OFCCP's proposal for a compensation data collection tool is a complicated measure. The agency doesn't understand yet how the whole thing is going to work. They are still examining what kind of pay data would be useful to collect, how the agency will go about collecting the data and what kind of production would be required.

We are probably looking at a year or two before we see anything definitive being enacted on the compensation data collection tool because there are too many issues that need to be ironed out.

Bloomberg BNA: Why do you think some contractors have a hard time developing and maintaining an annual written affirmative action plans (AAPs), which are required by OFCCP for contractors with 50 or more employees and contracts worth $50,000 or more?

Thomas: Contractors only have a limited number of resources, plus there are only a certain number of hours during the day. Sometimes AAPs get regulated to a lower priority within the organization because the contractor might be focusing on other business concerns, such as payroll and hiring issues, business development efforts and marketing campaigns. The AAP, which basically details the contractor's employment practices, simply falls through the cracks. Of course, it needs to take a higher priority within the organization.

Maintaining and developing an AAP can be a difficult process depending on the size of the contractor, the number of facility locations and job groups. The tendency among some contractors is to just ignore the AAP because working on it is so overwhelming. Sometimes you will hear a contractor say, 'We will deal with it later, when we absolute have to, but right now it just too daunting of a task to think about.'

New contractors may also find the plan a challenge to implement and maintain because they are not sure where to start or how to go about it. However, there are resources out there that can help contractors with AAPs. 

The next Q&A will feature Stewart S. Manela, the new chair of the American Bar Association's Section of Labor and Employment Law.  

More Q&As on Labor & Employment Blog  

If you are interested in participating in a Q&A on enforcement actions, legal developments and news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs or have a suggestion for a Q&A topic, send an email to lbridgeford@bna.com. You can also follow me on Twitter @LCBridgeford.