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June 24 — Federal contractors aren't required to hire a disabled individual who is not the best qualified candidate for a position in order to comply with updated affirmative action rules under Section 503 of the Rehabilitation Act, according to frequently-asked-question guidance updated June 18 by the Labor Department's Office of Federal Contract Compliance Programs.
However, the OFCCP said, contractors would not violate Section 503 by selecting a disabled applicant over an equally or better qualified candidate, “so long as that selection was not based on a prohibited factor such as race, gender or ethnicity.”
The OFCCP's update to the nearly 50-question FAQ—which the agency first issued around the same time it published the final Section 503 rules last fall—also included answers to inquiries about disability data collection, voluntary self-identification and utilization goal requirements.
In addition, the agency made similar updates to separate FAQs pertaining to contractor obligations under its Vietnam Era Veterans' Readjustment Assistance Act regulations, which were concurrently issued with the Section 503 rules.
Both sets of rules, which went into effect in March, introduced a number of new annual data collection and analysis requirements for contractors.
For example, contractors must collect information on their total number of job openings and jobs filled.
The OFCCP's updated FAQs clarified that the number of jobs filled may include “step or ladder movements” into different positions “that are automatically attained upon completion of a stated event, such as time in the job or attainment of a particular certification.”
“This will necessarily be a fact-based determination,” the agency said.
With respect to contractors' Section 503 obligation to invite current employees to voluntarily self-identify as disabled, the FAQs clarified that employers “have the flexibility to choose any method or methods that are reasonable and likely to be effective, given its particular circumstances.”
These methods could include e-mailed notices or employee portals on company Intranet, or paper notices posted in an employee lounge, the OFCCP said.
Furthermore, if a contractor receives “non-responses” to the invitation to voluntarily self-identify, the OFCCP said the contractor should count those responses “solely in the job group total” when conducting a utilization analysis to determine the percentage of disabled individuals within a job group.
However, if a contractor has actual knowledge that a “particular non-responsive individual has a disability,” it may count that person as an individual with a disability for utilization analysis purposes whether or not the individual voluntarily self-identified, the OFCCP said.
Like the Section 503 regulations, the VEVRAA rules also include voluntary self-identification provisions for job applicants and current employees.
Regarding applicants, the OFCCP said in the updated FAQ that if an individual self-identifies as a protected veteran at the pre-offer stage of the employment process but then doesn't self-identify at the post-offer stage, a contractor may still identify that new hire as a “protected veteran” for VEVRAA compliance purposes.
Text of the OFCCP's updated Section 503 and VEVRAA frequently-asked-question guidances is available at http://www.dol.gov/ofccp/regs/compliance/section503.htm and http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm.
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