Improving Job Opportunities for Individuals with Disabilities - Part 4

Today we conclude this series on the Labor Department's proposed rules to enhance the requirements for contractors to take affirmative action to employ, advance in employment, and otherwise treat qualified individuals without discrimination on the basis of disability in all employment practices. Today we will discuss the Office of Federal Contract Compliance Program's (OFCCP's) compliance evaluations and the sanctions and penalties available to it to  enforce the new regulations.

Under the proposed regulations, the OFCCP may conduct compliance evaluations to determine whether the contractor is taking affirmative action to employ individuals with disabilities. Compliance evaluations may consist of any one or any combination of the following investigative procedures.

1. Compliance review. A comprehensive analysis and evaluation of the firing and employment practices of the contractor, the written affirmative action program, and the results of the affirmative action efforts undertaken by the contractor.

2. Off-site review of records. An analysis and evaluation of the affirmative action program (or any part thereof) and supporting documentation, and other documents related to the contractor's personnel policies and employment actions that may be relevant to a determination of whether the contractor has complied with the requirements of section 503 and its regulations.

3. Compliance check. A determination of whether the contractor has maintained records consistent with the new regulations. OFCCP may request the documents be provided either on-site or off-site.

4. Focused review. A review restricted to one or more components of the contractor's organization or one or more aspects of the contractor's employment practices.

In addition, for contracts and subcontracts expected to exceed $10 million, the new regulations require the contracting officer to request a pre-award compliance evaluation. The pre-award evaluation would focus on the contractors policies, procedures, and practices. The OFCCP has only 30 days to perform the pre-award evaluation. After that, the awarding agency is allowed to proceed with the award.

The proposed regulations provide for penalties and sanctions for contractors that are not in compliant with the rules or for violations of the requirements as when someone files a complaint. There is a due process afforded contractors within the proposed regulations but assuming fault, there are a number of actions the Government may take against a contractor to enforce the rules. These are:

• Withholding progress payment
• Terminating the contract, and
• Debarment from receiving future contracts for six months to three years.

If you wish to read the full text of the proposed regulation, click here. This link also provides information on how to submit comments, if you're so inclined.

Improving Job Opportunities for Individuals with Disabilities - Part 3

For the past two days, we have been discussing the proposed rules published by the Department of Labor that will require Government contractors to significantly alter the policies, procedures, and practices regarding the recruitment of individuals with disabilities. Here are some of those added requirements:

Data collection - The proposed rule requires contractors collect and maintain several measurements and comparisons related to individuals with disabilities, including the

• number of individuals with disabilities referred to them by employment agencies
• number of individuals with disabilities referred to them by other entities, groups or organizations with which the contractor has a linkage agreement
• number of individuals with disabilities that applied for positions with the contractor; and
• number of individuals with disabilities hired by the contractor.

Compliance reviews - to improve the Office of Federal Contract Comploance Program's (OFCCP's) efficiency in conducting compliance evaluations, the proposed rule permits OFCCP to review contractor records for compliance checks and focused reviews wither on-site or off-site, at OFCCPs discretion. The proposed rule also allows OFCCP to perform pre-award compliance evaluations.

Mandatory job listing requirement - The proposed rule requires contractors to list all job openings with the nearest "One-Stop Career Center". One-Stop Career Centers provide job seekers with a full range of assistance under one roof. One-Stops operate in all 50 states and offer training referrals, career counseling, job listings, and similar employment-related services. This rule is designed to benefit both the contractor and the disability community by improving the contractor's ability to attract qualified applicants with disabilities.

Reasonable accommodation. The proposed rules require that contractors develop and implement specific written procedures for processing requests for reasonable accommodation, and details the minimum elements the procedures must include. Having these written procedures will assist the contractor in consistently satisfying its reasonable accommodation obligation by serving as a blueprint for the prompt handling of reasonable accommodation requests. The maintenance and dissemination of these procedures will also ensure that applicants and employees know how to request a reasonable accommodation, who is responsible for handling accommodation requests, and the maximum amount of time within which the contractor must complete the processing of an accommodation request.

Improving Job Opportunities for Individuals with Disabilities - Part 2

Yesterday we discussed the Labor Department's proposed rules for Government contractors designed to improve job opportunities for individuals with disabilities. These rules will require federal contractors and subcontractors to set a hiring goal of having seven percent of their workforces be people with disabilities, among other requirements.

These proposed rules would strengthen the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 obligating federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities. The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record-keeping and policy dissemination - similar to those that have long been required to promote workplace equality for women and minorities.

According to Secretary of Labor, Hilda L. Solis, "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". We would add that the proposed rules will significantly increase the administrative and reporting burdens on government contractors.

Highlights of the proposed rule include:

• Goals: Establish, for the first time, a single, national utilization goal for individuals with disabilities. Federal contractors and subcontractors would be required to set a hiring goal of having 7 percent of their employees be workers with disabilities in each job group of the contractors’ workforce.
• Data Collection: Improve collection of data on employment of people with disabilities by modifying the invitation for workers to self-identify by requiring that contractors invite all applicants to voluntarily self-identify as an “individual with a disability” at the pre-offer stage of the hiring process. Contractors also will be required to invite post-offer voluntary self-identification and to survey all employees annually in order to invite their self-identification in an anonymous manner.
• Record-Keeping: Require that contractors maintain records on the number of individuals with disabilities applying for positions and the number of individuals with disabilities hired.
• Accommodation Requests: Require, for the first time, that contractors develop and implement written procedures for processing requests for reasonable accommodation.
• Outreach: Require that contractors engage in a minimum of three specific types of outreach and recruitment efforts to recruit individuals with disabilities.
• Job Listings: Require that contractors list job openings with One-Stop Career Centers or other appropriate employment delivery systems.
• Annual Reviews: Require previously recommended steps contractors must take to review their personnel processes, as well as their physical and mental job qualifications.

Most Government contractors and subcontractors will recognize a large gap between these rules and their current practices.

Improving Job Opportunities for Individuals with Disabilities at Government Contractors

Government contractors, when entering into contracts subject to Section 503 of the Rehabilitation Act of 1973 (which are all contracts greater than $10,000 unless a waiver is granted), are required to take affirmative action to employ, and advance in employment, qualified individuals with disabilities, without discrimination based on their physical or mental disability. The specific procedures are laid out in 41 CFR Part 60-741 and incorporated into contracts by 48 CFR 52.222.36.

These rules have bee in place for nearly 40 years and require contractors to make a good faith effort to recruit and hire people with disabilities. However, according to the Labor Department's Office of Federal Contract Compliance Programs (OFCCP), the existing rules are not working. The current unemployment rate for people with disabilities is 13 percent, significantly higher than the rate of those without disabilities. Additionally, data recently published by the Bureau of Labor Statistics show disparities facing working-age individuals with disabilities, with 79.2 percent outside the labor force altogether, compared to 30.5 percent of those without disabilities.

To rectify this situation, the U.S. Department of Labor is proposing new rules that would require federal contractors and subcontractors to set a hiring goal of having 7 percent of their work forces be people with disabilities, among other requirements. The proposed rules were published last December and the period for public comment closes on February 7, 2012.

These new rules are designed to strengthen the affirmative action requirements established by the Rehabilitation Act of 1973. The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination - similar to those that have long been required to promote workplace equality for women and minorities. In additions, the rule would clarify expectations for contractors by providing specific guidance on how to comply with the law.

Establishing a 7 percent hiring goal for the employment of individuals with disabilities would be a tool for contractors to measure the effectiveness of their affirmative action efforts and thereby inform their decision-making. The proposed rule also would enhance data collection and record-keeping requirements - including for documentation and processing of requests for reasonable accommodation - in order to improve accountability. Additionally, it would ensure annual self-reviews of employers' recruitment and outreach efforts, and add a new requirement for contractors to list job openings to increase their pools of qualified applicants.

These new rules, if adopted, will significantly increase the administrative and reporting burdens of Government contractors. Tomorrow, we will look more specifically at the new requirements to be imposed on Government contractors.