OFCCP Proposal Requires Contractors to Set Hiring Goal for Employing Disabled Workers

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By Kevin P. McGowan

The Labor Department's Office of Federal Contract Compliance Programs has issued a proposed rule that would require federal contractors to set a hiring goal of having 7 percent of their workforces be people with disabilities.

Published in the Dec. 9 Federal Register (76 Fed. Reg. 77,056), OFCCP's proposal would strengthen affirmative action requirements under Section 503 of the Rehabilitation Act, which requires federal contractors and subcontractors to provide equal employment opportunities for persons with disabilities.

OFCCP in July 2010 published an advance notice of proposed rulemaking, seeking public input on specific questions prior to issuing a proposed rule under Section 503. The agency received 127 comments, including 80 responding to at least some of the questions posed by the proposal, the agency said.

“This proposed rule represents one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act,” Secretary of Labor Hilda Solis said. “This proposed rule would help federal contractors better fulfill their legal responsibility to hire qualified workers with disabilities.”

The Labor Department noted that although Section 503 regulations have been in place for almost 40 years, the current unemployment rate for persons with disabilities is 13 percent, well above the overall unemployment rate of 8.6 percent. According to data from DOL's Bureau of Labor Statistics, almost 80 percent of working-age individuals with disabilities remain outside the labor force, compared with 30.5 percent of those without disabilities, the department said.

“For nearly 40 years, the rules have said that contractors simply need to make a ‘good faith' effort to recruit and hire people with disabilities,” said OFCCP Director Patricia Shiu. “Clearly, that's not working. Our proposal would define specific goals, require real accountability, and provide the clearest possible guidance for employers seeking to comply with the law.”

The Federal Register publication triggered a 60-day public comment period on OFCCP's proposed rule.

Hiring Goal Is ‘Aspirational.'

In a Dec. 8 telephone briefing, Shiu said the proposal represents a “sea change” in OFCCP's enforcement of Section 503. She said the “big change” is the hiring or “utilization” goal, which is intended as a “yardstick” to help contractors measure their own success and to alert OFCCP to potential problems.

“This goal is aspirational,” Shiu said, explaining that OFCCP's focus mainly will be on determining whether covered contractors are following other required steps including recruitment, notification of job openings, and accessible hiring procedures.

“I believe that what gets measured, gets done,” Shiu said. OFCCP's proposed regulations provide “concrete steps” the federal government can take to help “close the gap” between persons with disabilities and those without disabilities in employment and labor force participation rates, Shiu said.

Shiu and Deputy Secretary of Labor Seth D. Harris both emphasized that OFCCP's proposed 7 percent hiring goal for each of a contractor's occupational groups is not set in stone.

This proposed utilization goal is “not a hiring quota nor a restrictive hiring ceiling,” Shiu said. “Rather, it is an equal employment opportunity objective, and an important tool for measuring the contractor's progress toward equal employment opportunity and assessing where barriers to equal employment opportunity remain.”

OFCCP developed the 7 percent figure after looking at federal contractors' occupations and at data regarding persons with disabilities who could perform those jobs, including discouraged workers not currently in the labor force, Harris said.

“We're suggesting 7 percent but asking for comments on a range between 4 percent and 10 percent,” he said.

Asked how OFCCP's proposal might affect military veterans with disabilities, Shiu said it “absolutely” would apply to disabled veterans. She said there is a “fair amount of overlap” regarding the benefits for persons with disabilities under the Section 503 proposal and under OFCCP's proposed rule regarding affirmative action under the Vietnam Era Veterans Readjustment Assistance Act, issued earlier this year.

More Data Collection Required.

OFCCP's proposal would revise the definitions of “disability,” “major life activities,” “substantially limits,” and other statutory terms within the existing Section 503 regulations to conform with the ADA Amendments Act and the Equal Employment Opportunity Commission's final regulations implementing that new law, which amended the Rehabilitation Act as well as the ADA.

Federal contractors would have to take specific steps regarding recruitment, training, recordkeeping, and disseminating policies, similar to those already required under Executive Order 11246 to promote workplace equality for women and minorities, the agency said.

The proposed regulations would enhance data collection and recordkeeping requirements, including the documentation and processing of individuals' requests for reasonable accommodation, OFCCP said.

Federal contractors would have to conduct annual self-reviews of recruitment and outreach efforts, OFCCP said. For the first time, federal contractors would be required to list job openings to increase their pools of qualified applicants, the agency said.

Voluntary Self-Identification of Disabled Persons.

Under OFCCP's proposal, contractors would have to invite all job applicants to “voluntarily self-identify” as persons with disabilities whenever they apply for or are considered for employment. Contractors also would have to survey their current employees annually, in order to give them an opportunity to voluntarily self-identify as persons with disabilities, anonymously if they prefer.

OFCCP said this invitation to self-identify is consistent with the ADA. “Although the ADA generally prohibits inquiries about disability prior to an offer of employment, it does not prohibit the collection of this information by a contractor in furtherance of its section 503 obligations to employ and advance in employment qualified individuals with disabilities,” OFCCP said.

OFCCP's proposal would require contractors annually to review their personnel policies to ensure that their affirmative action plan (AAP) obligations are being met and would prescribe specific steps contractors must take during such reviews. Steps that the current Section 503 regulations recommend as appropriate procedures for AAP review would be made mandatory under OFCCP's proposal.

Comments on OFCCP's proposed rule, identified by RIN number 1250-AA02, may be submitted online at http://www.regulations.gov; by fax (if six pages or less) to (202) 693-1304; or by mail to: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contractor Compliance Programs, Room C-3325, 200 Constitution Ave. N.W., Washington, D.C. 20210.

By Kevin P. McGowan

Text of OFCCP's proposed rule may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-8pckcu.

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