SECTION 503 REVISED RULE: CRP OPPORTUNITIES AND RESPONSIBILITIES

Presented By:Robert “Bobby” Silverstein, JD

INTRODUCTION• Advance Notice of Proposed Rulemaking

(July 23, 2010)

• Notice of Proposed Rulemaking—(December 9, 2011)

• Final Rulemaking (September 24, 2013)

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INTRODUCTION

• Statement by Secretary of Labor

• Statement by Director of OFCCP

• Statement by Assistant Secretary, ODEP

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OFFICIAL INFORMATION• OFCCP Sources

– Final rule in Federal Register– Fact sheet– Frequently asked questions– Chart of changes

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INTRODUCTION• Need for the revisions to Section 503

regulation– Policy framework in place since the 1970’s– Still significantly higher unemployment rate for

individuals with disabilities– Still significantly lower labor force participation

rate– Strengthening the regulations important means

of reducing disparities

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INTRODUCTION• PURPOSE OF FINAL RULE

– Provide contractors with tools to evaluate compliance

– Proactively identify and correct deficiencies– Assist contractors in averting potentially expensive

violation findings by OFCCP

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INTRODUCTION• Highlights

– Strengthens the affirmative action provisions in order to create greater accountability and measure effectiveness

– Establishes a utilization goal– Requires invitations to self-identify– Requires self-assessment re outreach and

recruitment efforts– Requires data collection pertaining to applicants

and hires with disabilities7

INTRODUCTION• Effective Date March 24, 2014

• Phase-in of full compliance

• New contractors submit AAP within 120 days of commencement of contract

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ORGANIZATION OF PRESENTATIONSpecifically, the following topics will be discussed:

• ADAAA Updates and Other Definitions• Prohibitions Against Discrimination • Purpose; Applicability • Invitation to Self-Identify• Workforce Utilization Goals and Annual Evaluation• Data Collection • Outreach and Recruitment• AbilityOne and Sheltered Workshops• Auditing and Reporting Systems and Recordkeeping

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Specifically, the following topics will be discussed):• Policy Statement• Review of Personnel Processes• Physical and Mental Qualifications• Reasonable Accommodation Policy and Procedures• Internal Communication• Responsibility for Implementation• Training• Equal Opportunity Clause• Availability of Affirmative Action Program • Voluntary Affirmative Action

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ADAAA-DEFINITION OF DISABILITY• Definition of disability used in Section 503

regulation modified to reflect definition of disability used in ADA, as amended

• Term “disability” replaces the term “individual with disability”

• Retains 3-prongs of definition • Definition construed in favor of broad coverage

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OTHER DEFINITIONS• Contractor• Prime contractor• Subcontractor• Government contract• Contracting agency

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DISCRIMINATION• Retains prohibitions against discrimination with

minor modifications• Clarifies reasonable accommodation obligation

extends to use of electronic and online job application systems

• Clarifies that persons without disabilities cannot make claims of discrimination under Section 503

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PURPOSE OF AFFIRMATIVE ACTION PROGRAM; APPLICABILITY

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• Explains general expectationso “Management tool”o “Institutionalizes commitment to equality of

opportunity” o “More than a paperwork exercise”o “Dynamic in nature”o “Includes measurable objectives, quantitative

analyses, and internal auditing and reporting systems” that measure progress

• Applicability

INVITATION TO SELF-IDENTIFY

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• Significant, substantive changes• Pre-offer Invitation

• Rationale for new requirement• Relationship to ADA• EO 11246 Internet Applicant Rule

INVITATION TO SELF-IDENTIFY

• Post-Offer Invitation

• Invitation to Employees

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INVITATION TO SELF-IDENTIFY• Contractors may not compel or coerce

individuals to self-identify• Contractors may identify applicants and

employees with known or obvious disabilities.• Information on self-identification must be kept

confidential and maintained in a data analysis file, not in the individual’s medical files

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UTILIZATION GOALS AND ANNUAL EVALUATION

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• National utilization goal of 7 percent • Purpose of utilization goal—benchmark to

measure progress• Not a rigid and inflexible quota• Not a ceiling or a floor

• American Community Survey• Despite limitations, still best source of

nationwide disability data available today

UTILIZATION GOALS AND ANNUAL EVALUATION

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• Consideration of Alternative Approaches• Mirror precisely the goals framework for

minorities and women under EO 11246• National goal for all jobs in all geographic

areas more viable approach

UTILIZATION GOALS AND ANNUAL EVALUATION

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• Rationale for setting the National Goal at 7%• Estimate of the percentage of the

civilian labor force that has disability• Takes into account “discouraged

worker effect”

UTILIZATION GOALS AND ANNUAL EVALUATION

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• Conduct annual evaluation• Identify problem areas• Develop and execute action-oriented

programs

UTILIZATION GOALS AND ANNUAL EVALUATION

• Failure to attain goal not a finding or admission of discrimination

• Goals not used as “quota” or “ceiling”

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DATA COLLECTION

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• Requires contractor to document several computations or comparisons pertaining to applicants and hires

• Data collected on an annual basis and documents maintained for a period of three years

• Data includes information regarding applicants and applicants hired (with and without disabilities)

OUTREACH AND POSITIVE RECRUITMENT

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• Required—undertake appropriate and positive recruitment activities

• Scope of efforts depend on: • totality of circumstances, including

size and resources • adequacy of existing practices.

• Notice to subcontractors

OUTREACH AND POSITIVE RECRUITMENT

• Examples—enlisting the assistance and support of persons and organizations:– State VR, DD, and/or mental health agencies– America’s Job Centers– VA Regional Office– EARN– ENs– Local disability organizations, including CRPs– Career offices of educational institutions– Private recruitment sources

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OUTREACH AND POSITIVE RECRUITMENT

• Examples of actions to fulfill commitment:– Formal briefing sessions at establishment– Special efforts to reach students with disabilities at educational

institutions– Work-study, internships, job-shadowing programs– Career days, youth motivation programs– Attract individuals not currently in the workforce– Consider applicants with known disabilities for all available

positions

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OUTREACH AND POSITIVE RECRUITMENT

• Self-assessment of external outreach and recruitment efforts– Annual assessment– Documentation required– Conclusions reached– Implementation of alternative efforts if initial efforts

ineffective• Recordkeeping obligation

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ABILITYONE AND SHELTERED WORKSHOPS

• Commenter requested that AbilityOne contractors be exempt from utilization goal requirement

• OFCCP rejected request– Final rule applies not just to direct labor– Final rule applies to entirety of contractor’s workforce

and entirety of subcontractors’ workforces

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ABILITYONE AND SHELTERED WORKSHOPS

• OFCCP explanations regarding the utilization goal requirement and:• Contractor relationships with sheltered workshops• Contractor established sheltered workshops• Training at sheltered workshops• Prohibiting contractors from using sheltered

workshops

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AUDITING AND REPORTING SYSTEM AND RECORDKEEPING

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• Adds provision clarifying that the new recordkeeping requirements must be maintained for three years

• Recordkeeping also applies to the new provision requiring the contractor to document actions to comply with audit and reporting system

POLICY STATEMENT

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• Replaces the provision that the policy statement “SHOULD indicate the chief executive officer’s attitude on the subject matter” with the requirement that “the policy statement SHALL…”

• Specifies topics to be addressed in the policy statement

• Requires accessible notice

REVIEW OF PERSONNEL PROCESSES

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• Prescribes careful, thorough, and systemic review of personnel processes

• Provide for periodic review • Ensures equal access to information and

communication technology through reasonable accommodation

• Contractors encouraged to make ICT accessible

PHYSICAL OR MENTAL QUALIFICATIONS

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• Schedule review of physical and mental job standards

• Use of direct threat defense

REASONABLE ACCOMMODATION POLICY AND PROCEDURES

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• Best practice–develop and implement written procedures for processing requests.

• Reasonable accommodation obligation and use of electronic or online job application systems

EQUAL OPPORTUNITY CLAUSE

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• Adds requirement to post notices in electronic format

• Adds affirmation in solicitations and advertisements that it is an EEO employer

• Prescribes reference to Section 503 regulation in contract

AVAILABILITY OF AFFIRMATIVE ACTION PROGRAM

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• Availability of full affirmative action program to any employee or applicant

• Exception for required data metrics • Post location and hours.

INTERNAL COMMUNICATIONS

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• Include affirmative action policy in policy manual or otherwise make available

• If party to a collective bargaining agreement, notify union officials and/or employee representatives

• Document activities and retain records

RESPONSIBILITY FOR IMPLEMENTATION

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Official assigned responsibility for implementation

Identity should appear on all internal and external communications

Individual given necessary senior management support and staff to manage implementation.

TRAINING

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• Personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained

VOLUNTARY AFFIRMATIVE ACTION PROGRAMS

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• The contractor is permitted to develop and implement voluntary affirmative action programs for individuals with disabilities to increase training and employment opportunities

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