February 21 marked the deadline to provide comments to the Office of Federal Contractor Compliance Programs (OFCCP) regarding their proposed regulations to amend the affirmative action and nondiscrimination obligations of federal contractors and subcontractors to employ and advance in employment individuals with disabilities. The proposed rule was released by the OFCCP on December 9, 2011. Check out my prior blog post, Proposed Regulations from OFCCP for Individuals With Disabilities Mean Enormous Changes Ahead for Employers, for a summary of the key requirements and other helpful links.
Most of the employers who are members of DirectEmployers Association (DE) are federal contractors. Undoubtedly, our members are absolutely dedicated to working together with the OFCCP to achieve the common goal to improve the employment outcomes for individuals with disabilities. In response to the NPRM, the members of DE have undergone an extensive and collaborative review of the NPRM through our Recruitment Regulatory Compliance Committee (RRCC) to assess the impact of the proposed regulations on contractors. The members of DE, and particularly the members of the RRCC, have considerable experience in working with the existing § 503 regulations and include many of the industry’s most experience practitioners in EEO, affirmative action, and recruitment regulatory compliance matters. The RRCC completed a detailed survey that provided valuable employer input to the comment letter submitted to the OFCCP on February 21 by DirectEmployers Association on behalf of its members. The National Association of State Workforce Agencies (NASWA) also responded to the OFCCP with a comment letter. DirectEmployers Association and NASWA formed an alliance in March 2007 to provide an employer-funded, jointly-administered National Labor Exchange (NLX) as a replacement for the discontinued America’s Job Bank. In preparing the comment letters, as key partners, both Associations worked closely together to collaborate and defend the interests and partnerships of its jointly-operated National Labor Exchange (NLX).
The NPRM focuses on reporting and tracking exercises that respond to a set of overly prescriptive compliance requirements. Contractors do not see how these exercises will improve the employment outcomes of individuals with disabilities. Instead contractors encourage the OFCCP to establish the proposed elements of the NPRM as a guideline for contractors to use to achieve effective outcomes for hiring and retaining individuals with disabilities.
Every contractor is different regarding size and scope, geographic locations, industry, and occupations. Dictating an employer’s outreach efforts implies that a “one-size-fits-all-approach” will improve the employment outcomes of individuals with disabilities. Contractors should have the discretion to determine which partner contacts or linkage agreements should be developed by them directly, or by third-parties acting on their behalf. Contractors should also be allowed to prioritize their outreach based on need and hiring activity, rather than being required to conduct specific personal outreach by completing three linkage agreements for each and every establishment. Many contractors have establishments in rural communities where there are no local organizations available to provide supporting services, and not only that, linkage agreements have not been effective. Contractors must evaluate whether particular organizations have proven to be useful partners in the past, and unfortunately, many contractors have found themselves repeatedly contacting organizations that have produced no useful results only to satisfy a regulatory request by an OFCCP compliance officer. Not only are there concerns with the excessive costs and administrative burdens these regulations would have on employers through personal, local level outreach, we seriously question how the States, Vocational Rehabilitation and other linkage partner organizations themselves will be able to absorb increased administrative requirements with decreased funding and staffing during an economic recession.
Contractors also have a concern that nowhere in the NPRM is the OFCCP’s Internet Applicant Rule mentioned nor is there a discussion regarding its effect on the proposed rules. Similarly, the NPRM fails to address adequately the need for individuals with disabilities to be “qualified individuals” to meet the minimum education, knowledge, skills and abilities for any job opportunity seeking to be filled by a contractor.
Further, the tracking of engagement by individuals with disabilities in the recruiting process through a pre-offer self-identification appears to raise serious conflicts with other current federal employment laws. While the OFCCP is convinced there are no legal conflicts with this requirement, contractors are concerned that such invitations would be unlawful and impermissible under the Americans with Disabilities Act Amendments Act (ADAAA). As far as can be determined by contractors, the EEOC has not endorsed the practice of a pre-offer self-identification invitation. There is no evidence that the OFCCP can void the potential liability of federal government contractors under the ADAAA conducting pre-offer medical or disability inquiries under the ADA. The potential liability under the ADAAA makes it risky for contractors to monitor their outreach and recruitment efforts for individuals with disabilities prior to making the individuals an offer.
And setting a single, national utilization goal of 7% for each job group creates considerable legal and policy issues as well. The Census Bureau’s American Community Survey (ACS) does not collect information on disability in a manner that is consistent with how that term has been broadly defined under the ADAAA and does not correlate respondents with disabilities to the appropriate labor-related skills that they may possess. The ACS only asks respondents to answer just six “Yes or No” questions. While the ACS has succeeded in identifying some individuals with disabilities, it definitely falls short of reliably identifying the true population of individuals with disabilities protected by the ADA. Because the ACS survey data is not tied to specific job categories, how will contractors be able to correlate the ACS to specific job groups? For utilization goals for individuals with disabilities to be meaningful and effective, the goals should be derived from source data that are consistent. A reliable data source needs to be developed that takes into account the available pool of the disabled workforce that demonstrates the correlation of standardized occupation, industry, and geographic classification codes that are consistent with other reported federal labor, employment, economic, and census data (e.g., similar to the approach used to develop availabilities for women and minority affirmative action plans) to facilitate the creation of meaningful benchmarks that are akin to the affirmative action placement goals under EO 11246. Otherwise any mandated utilization goals will be regarded as quotas.
The intention to improve the employment opportunities for qualified individuals with disabilities is something on which we all agree. However, the OFCCP’s proposed regulations create excessive administrative tasks that involve the exorbitant use of resources to meet an end-result that simply won’t achieve the desired outcomes without violating the true spirit of affirmative action and equal employment opportunity. The OFCCP should focus on conducting additional research into efforts that result in the actual hiring of individuals with disabilities that are practical, use resources effectively, and engage positively with federal contractors, state workforce agencies, the disability community, and other federal agencies so workable solutions can be achieved and balanced fairly among all stakeholders.
You can monitor the comments to the NPRM at www.regulations.gov. Once there, type in “Comment on FR Doc # 2011-31371” in the search box. The total comment letters submitted and posted on the site as of February 23 total 295. We will continue to monitor the NPRM. Meanwhile, if you are a Member of DirectEmployers Association, be sure to attend our upcoming webinar on Tuesday, March 13 at 2:00 p.m. (Eastern) where RRCC Chair Jason Capili, NASWA Assistant Executive Director Pam Gerassimides, and I will provide an update to members on the NPRM, review the status and nature of the comments, discuss general reactions from employers and states alike, and predict what’s next on the OFCCP’s agenda.