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DirectEmployers Association Responds to OFCCP’s Proposed Regulations for Individuals With Disabilities

Friday, February 24th, 2012

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.

New DirectEmployers Team Member to Lead National Disability & Employment Initiative

Wednesday, January 25th, 2012

DirectEmployers Association (DE) would like to formally welcome to the staff, Julie Cook, Operations Manager for the National Labor Exchange (NLX). To many of you, Julie is no stranger. She has actively been working with the Business Development team for the last year to assist in developing what is now taking shape as a national disability and employment initiative for DE Member companies.

Over the next 12-18 months, Julie will be writing a series of blog posts with the intent of helping the compliance, recruiting and human resource professionals in your organization better understand integration of individuals with disabilities into the workplace, creating inclusive environments, building internal capacity, and sourcing prospective candidates in your organization. Her first post, “NPRM for 503: Ready, Set, Go?” is now available in the Pipeline.

Julie comes to us with a diverse background in both the private and public sectors. She has a BA in Political Science from Indiana University and is currently seeking her Master’s in Public Administration from Indiana State University. Julie started her professional career in financial services, obtaining her Series 7 and 63, where she provided portfolio consultation and sales services, business development and SEC compliance oversight. She also has an additional 5 years’ experience in retail management and has insight into the struggles that many companies encounter in the day to day balancing of business and personnel needs.

She entered public employment in the Indiana Office of Medicaid Policy and Planning (OMPP). There, Julie worked on a variety of initiatives, including policy review and implementation process development, provided communications, oversight of all Freedom of Information Act (FOIA) policies and procedures, and creation of the internal governance manual utilized by OMPP staff.

Ultimately, Julie found her passion when she took over direction of a federally funded grant, known as the Medicaid Infrastructure Grant (MIG). The MIG was created with the goal of creating infrastructure that removes barriers and increases opportunities to employment for individuals with all types of disabilities. In 2010, she moved from OMPP to the Bureau of Rehabilitation Services (BRS) and worked with the state Vocational Rehabilitation (VR) program to further the goals of the MIG in Indiana.
Through the MIG, Julie with the BRS and MIG leadership was able to create a five year strategic plan for the state of Indiana to further the goal of increasing employment outcomes for individuals with disabilities. The plan focused on four strategic areas in Indiana where the MIG could create actual impact to systems; one of those goals was better engaging the business community in the hiring and advancing of individuals with disabilities in their employment ranks. The MIG supports many business related activities including the Business Leadership Network (BLN), Project Search, and Corporate Development, including a strong relationship with the regional Department of Labor (DOL) staff.

Through this relationship with the DOL, DE was introduced to Julie and decided to bring her on staff to lead both the next generation of the National Labor Exchange, now under us.jobs, and work with Member companies to identify needs, solutions and resources in implementing the proposed changes to Section 503.