By now, hopefully you are aware the OFCCP issued a Notice of Public Rulemaking (NPRM) on December 9, 2012 that would revise and update Section 503 of the Rehabilitation Act of 1973. If not, you’ll definitely want to PAY ATTENTION TO THIS ISSUE! The new rules would require federal contractors and subcontractors to do far more than ever to accommodate, hire, retain and promote individuals with disabilities. Employers have very serious concerns about the legality of some of the proposed rules and their conflict with other employment laws. While contractors already actively support and engage in affirmative action to employ and advance in employment qualified individuals with disabilities, the new regulations proposed by the OFCCP will have major unintended consequences for both employers and individuals with disabilities. The rules focus on recordkeeping rather than solving the real challenges and barriers that both sides often experience, and these new rules will undoubtedly be job-killing, extremely expensive, and very tedious for employers to meet such unrealistic compliance expectations.
One of the most significant changes would require businesses with at least 50 employees and $50,000 or more in government contracts to set a single, national utilization goal of 7% for the employment of individuals with disabilities for each separate job group. This sure sounds like a hiring quota to most contractors. Taking pride in setting the 7% goal, OFCCP Director Patricia Shiu proclaimed proudly, “That’s never been done before,” in a December 9 email sent to “Dear Friends” entitled “An Historic Step Forward.” There’s no question these changes are indeed historic, and the contractor community will most certainly experience a sharp increase in the administrative recordkeeping burdens, requests for more reasonable accommodations resulting in more medical assessments, mandatory linkage agreements with partners, more aggressive self-identification and data collection requirements, and so much more.
DirectEmployers Association recently hosted a webinar for the Members of the Association on January 11, facilitated by Nita Beecher of Mercer ORC Networks and Legal Counsel to the Recruitment Regulatory Compliance Committee (RRCC) of DirectEmployers Association. Nita provided a summary of the regulations to help employers interpret and understand the implications of these new rules and how they will impact affirmative action enforcement.If you are a Member of DirectEmployers, you can view Nita’s webinar entitled, Game-Changer: OFCCP Issues its Proposed Section 503 Regulations on-demand, and download the slide deck at the Pipeline, an exclusive social community for Members.
Interestingly, on December 14, 2011, the HR Policy Association sent a letter to Debra Carr, Director-Division of Policy, Planning and Program Development for the OFCCP, requesting an extension to the original comment period deadline, but a denial letter was sent to them from Ms. Carr on January 24, 2012. Just three days later on January 27, the Congressional Committee on Education and the Workforce in the House sent a letter to Hilda Solis, Secretary of Labor, requesting information from the OFCCP on how they came up with the regulations, the proposed requirements, and the amount of time it would take contractors to comply. Congress requested a 90-day extension to comment on the proposed regulations and expressed concern with the paperwork and reporting requirements and suggested they may create an unreasonable burden on business. Finally, very late in the day on February 6, the OFCCP granted a 14-day extension moving the comment deadline period from February 7 to February 21.
Employers are strongly encouraged to respond to these proposed regulations or expect to face enormous costs and extreme burdens to comply with these overly prescriptive regulations. Of course, the other option employers have is to abandon federal contracts altogether as they question whether all of this is really worth it. To this end, the RRCC of DirectEmployers Association has surveyed its members about the NPRM and will be submitting comments to the OFCCP on behalf of the Association’s members. If you want to share your thoughts and have us anonymously include your input in our comment letter, please send me (firstname.lastname@example.org) your feedback. You can also submit comments directly to the OFCCP either electronically at http://www.regulations.gov or by mail by the new deadline of February 21, 2012. The identification number (RIN) for this NPRM is 1250-AA02. If you are mailing or hand delivering comments, send them to Debra Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
For some helpful summaries of the most significant aspects of the proposed rules, check out the following additional resources:
- At the OFCCP’s website http://www.dol.gov/ofccp/503 you will find a short summary of the proposed rule, a fact sheet you can print and share, answers to frequently asked questions, and other useful materials.
- Littler Washington D.C. Employment Law Update
OFCCP Proposes Changes to Rules Governing Contractor Nondiscrimination and Affirmative Action Requirements for Individuals with Disabilities
December 8, 2011
- Jackson Lewis
OFCCP Proposes Major Changes to Affirmative Action Regulations for Individuals with Disabilities – Proposal Requires Utilization Goals and Increased Recordkeeping and Reporting
December 14, 2011
- Seyfarth Shaw
OFCCP Proposed “Game Chang(ing)” Disability Regulations: Redefined EEO Requirements are Extensive, Expensive and Overly Exacting
January 3, 2012
- Paul Hastings
Federal Contractors May Face New Compliance Burdens
January 5, 2012
- John C. Fox, trial attorney and employment law expert of Fox, Wang & Morgan P.C., wrote an interesting article on January 19, 2012, reviewing “the year that was” for the OFCCP and described 2011 as the “biggest period of policy change for OFCCP in its now storied 46 year history.” He also makes two very interesting predictions for 2012 about the timing of when the proposed rules for Sections 503 and 4212 might be made final:
“PREDICTION 1: OFCCP will take the VEVRAA proposed regulations to final in the weeks before the November Presidential election.
PREDICTION 2: If President Obama loses in November, OFCCP will publish its Section 503 regulations in December. If The President wins re-election in November, OFCCP will relax, take its time and publish the Section 503 regulations in final in the winter of 2013 (and absent Republican control of both houses of Congress).”
If you are an employer and these recently proposed regulations don’t completely overwhelm you, I don’t know what more would. I’d love to hear what you think!