On August 27, 2013 the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published long-anticipated final rules to the affirmative action regulations for individuals with disabilities and for protected veterans. The Final Rule to Improve Job Opportunities for Protected Veterans and the Final Rule to Improve Job Opportunities for Individuals with Disabilities are both available on the OFCCP website and will also be published in the Federal Register within the next two weeks.
The new rules require federal contractors and subcontractors to set a nationwide “aspirational” 7 percent utilization goal for individuals with disabilities in each job group set up in their existing affirmative action plans for women and minorities. Federal contractors with a total of 100 or fewer employees apply the goal to their entire workforce.
Federal contractors must also establish annual hiring benchmarks for protected veterans based on either the national percentage of veterans in the civilian labor force, or alternatively, establish their own benchmark based on five factors that include state-based data that will be published by OFCCP and “other factors that reflect the contractor’s unique hiring circumstances.”
In a significant revision of the affirmative action regulations implementing Section 503 of the Rehabilitation Act of 1973, 41 CFR Part 60-741 and the Vietnam Era Readjustment Assistance Act, as amended (VEVRAA), 41 CFR Part 60-300, both final rules also:
- impose new quantitative data collection responsibilities regarding total job openings, applicants, and hires and three-year record-keeping requirements;
- provide for new pre-offer applicant self-identification of disability and protected veteran status in addition to existing post-offer self-identification;
- mandate an annual assessment of outreach and recruitment efforts and documentation of criteria used to evaluate each effort and the contractors’ conclusion as to whether each effort was successful;
- require that contractors include specific, mandated language in their subcontracts and purchase orders; and
- clarify that contractors must allow OFCCP access to review documents either on-site or off-site, at OFCCP’s option, and must provide existing records to OFCCP in the format OFCCP requests.
The Section 503 rule also requires contractors to invite current employees to self-identify as an individual with a disability every five years. Both rules include sample language for the invitations. In addition, the Section 503 rule incorporates the expanded definition of a disability under the final regulations to the Americans with Disabilities Act Amendments Act of 2008 and suggests “best practices” for reasonable accommodation. The VEVRAA final rule includes clarification of contractors’ job-listing requirements with the appropriate state or local job services.
These new regulations apply to federal contractors and subcontractors, including construction contractors. The regulations do not apply to federally-assisted construction contractors. Check back here for a more detailed analysis of the final regulations, which we will publish soon.
Dara L. DeHaven is a shareholder in the Atlanta office of Ogletree Deakins.