The long awaited Section 503 (disability) and Section 4212 (protected veterans) regulations have finally been issued. Much fear and trepidation has been generated in the Federal Contractor community over the last few years over the possible impact of these new rules on the regulated community. Federal Contractors raised significant concerns about the prescriptive nature, the efficacy, and the burden hours of many of the proposals. If you were one of these Federal Contractors or one of their representatives, you will be pleased to note that the final rules have eliminated or modified some of the most troubling proposals.
Outside of the establishment of “benchmarks” for hiring individuals with disabilities and protected veterans and the emphasis on pre-offer self-identification, the rules may be more notable for what they do not do than for what they do.
External Outreach and Recruitment and Internal Dissemination of Policy
Referring to the proposed Section 741.44 (f) and (g) establishing required elements of affirmative action plans, the preamble to the proposed Section 503 regulations stated:
Identical language is found in the preamble to the proposed Section 4212 regulations at Federal Register Volume 76, Number 80 (Tuesday, April 26, 2011), page 23365.
As discussed below, in both final rules the proposals in the paragraphs referred to as embodying the most significant substantive changes in the proposed rules have been eliminated, reduced from mandates to suggestions, or substantially reduced in scope.
One of the major proposals for Section 503 and Section 4212 regulations was a requirement for Federal Contractors to enter into three linkage agreements using or with the aid of certain identified resources. The requirement to enter into three linkage agreements is located in paragraph 741.44 (f)(1)(ii) in the Section 503 rule and in the parallel section 300.44(f)(1)(ii) in the Section 4212 rule. The requirement to enter into linkage agreements as part of basic affirmative action compliance is deleted from both final rules. This is a good thing.
The proposal would have transformed linkages from a remedy to a regulatory requirement. If linkages were no longer part of the remedy structure but rather a required affirmative action element, the lead in structuring them would have shifted to the contractor as part of its compliance efforts and away from OFCCP. This would have profoundly changed the nature of the linkage concept. Under the proposals the parties to the linkage agreement would have changed. The new parties would have been the recruitment resource and the Federal Contractor rather than OFCCP and the Federal Contractor. This element alone would have extended the amount of time required to develop a linkage agreement beyond the 1.5 hours OFCCP estimated such agreements would take with OFCCP assistance. Unless the recruitment source was already familiar with the Federal Contractor’s workforce needs as well as OFCCP’s requirements, more than 1.5 hours would have been required just to set up the necessary meetings, explain the programs, fashion the agreement, and have the agreement reviewed by the Federal Contractor’s counsel. Such third party agreements would also have raised the issue of whether the Federal Contractor and the recruitment resource would have had enforcement rights against each other with respect to the terms of the agreement. Fortunately, for Federal Contractors, OFCCP rendered these issues moot by eliminating this requirement from the final rule.
Other External Outreach and Recruitment
In addition to eliminating the required linkage agreements under paragraph (f) OFCCP’s final rules eliminated or modified most of the other paragraph (f) requirements. OFCCP deleted the proposed requirement under paragraph 741.44(f)(1)(i) that Federal Contractors promptly list jobs with the nearest employment One-Stop Career Center.
OFCCP also corrected language in 741.44(f)(2)(vi) from “shall” to “should” in the paragraph concerning considering applicants who are known individuals with disabilities for other positions when the applied for position is unavailable. A parallel correction was made in the parallel section 300.44(f)(2)(vi) with respect to considering protected veterans for other vacancies when the one applied for is unavailable. The purpose of this modification was to correct an inadvertent error and to clarify that consideration of the applicant for positions other than the position applied for was not a mandatory requirement.
Paragraph (f)(3) requiring annual review of outreach efforts remained unchanged in both final rules.
Paragraph (f)(4)’s recordkeeping requirement was reduced from five years to three in both rules. You should note that all of the five year recordkeeping requirements under both proposals were reduced to three years.
Internal Dissemination of Policy
The proposal for internal dissemination of policy set out in paragraph (g) mentioned in the quote above has also been significantly streamlined. In both final rules, the requirement to include the policy in a policy manual has been modified to allow contractors to use whatever methodology they have in place for making policies known to their employees. The requirement to meet with the union officials or representatives to inform them of the policy and request their cooperation has been revised to eliminate the meeting requirement and substitute a requirement of notification.
In the Section 503 final rule, proposed (g)(2)(ii) “Discuss the policy thoroughly in any employee orientation and management training programs;” has been deleted.
In the Section 4212 final rule, three proposed elements have been deleted from (g)(2) including:
(iii) Conduct meetings with executive, management, and supervisory personnel to explain the intent of the policy and individual responsibility for effective implementation, making clear the chief executive officer’ attitude;
(iv) Discuss the policy thoroughly in any employee orientation and management training programs;
Some of the activities deleted from the mandatory provisions have been moved to the suggested actions under (g)(3) of the final rule.
The recordkeeping provisions at paragraph (g)(3) of the Section 503 proposal and identical paragraph (g)(4) of the Section 4212 proposal have also been deleted from the final rules. This paragraph stated:
Elimination of these mandatory requirements restores flexibility in the methods that can be used to achieve compliance and will significantly reduce the level of activity necessary to come into compliance with the final rules.
Reasonable Accommodation Procedures
Another major deletion in the Section 503 final rule is the elimination of the requirement for written reasonable accommodation procedures. This provision mandated a number of specific elements that were to be included in these written procedures including:
Like the modifications discussed above, the elimination of this requirement was in response to comments from the contractor community. Many Federal Contractors had well established reasonable accommodation processes and objected to both the “one size fits all” nature of the proposal and to the need to retool systems that were already in place for accomplishing the same objective. As with other mandates, OFCCP has moved from requiring a written policy and mandating the required elements of such a policy to suggesting that Federal Contractors view a written reasonable accommodation policy as a best practice. The recommended contents of such a written policy become guidance to assist in implementing this best practice rather than prescriptions.
Both proposed rules included revisions to their respective paragraphs (.44(j)) mandating specific topics that the contractor was required to include in its training and the maintenance of all training materials. OFCCP has elected not to revise the training language. This means that the contractor’s training obligations under both laws have not changed.
The proposals for Section 503 and Section 4212 each contained a data analysis section. In each, the Federal Contractor was required to track the number of referrals from specified sources and calculate ratios, specifically, referral, applicant, hiring, and job fill ratios. Both final rules delete the requirement to track referrals and the requirement to compute any ratios.
It should be noted that even though the summary of the 4212 final rule states, “In sum, after consideration of the comments received, the final rule retains the NPRM’s proposal for contractors to document and maintain applicant, hiring, and job fill ratio data, but eliminates the requirement for contractors to document and maintain referral data” (pp. 93-94). The final rule eliminates the reference to any ratios and parallels the final rule for Section 503 except for referring to veterans rather than individuals with disabilities. It lists for data analysis that a contractor must document:
From these data OFCCP can perform any necessary calculations.
Sub-goal for Individuals with Severe Disabilities
OFCCP has decided against inclusion of a sub-goal for individuals with severe disabilities at this time. This was also a sound decision. There is no reliable data upon which to calculate such a sub-goal. In addition, a sub-goal invites inquiries into the nature and severity of an individual’s disability which may lead to more rather than less discrimination.
Elimination of 60-250
OFCCP wisely avoided revising 60-250, the Veteran’s regulation that only applies to contracts entered into and not modified after December 1, 2003. OFCCP instead incorporated provisions into the revised 60-300 regulations designed to protect any veterans who might otherwise have been protected under 60-250. It is expected that very few individuals fall into this category.
From a compliance perspective the final rules for Section 503 and Section 4212 (which, by the way, will once again be called VEVRAA) are an improvement over the proposals. The final rules basically serve to refocus Federal Contractors on elimination of the barriers to employment for individuals with disabilities and protected veterans and less focus on the challenges of technical compliance. When the proposed rules were first published I urged contractors and the interested public to comment and suggested ways to have those comments heard. I do not know if my suggestions helped but the fact that the public actively participated in this rulemaking clearly made a difference.
OFCCP has indicated that one of the best measures of whether a contractor’s affirmative action program is working is whether targeted groups are actually being hired. Similarly, the best evidence of whether OFCCP’s enforcement programs, especially those for veterans and individuals with disabilities, are working is not whether they have hiked the number of violations (this can easily be done by citing Federal Contractors for a host of technical violations) but rather whether OFCCP is securing jobs and back pay as a result of those violations. Hopefully, OFCCP will be more transparent in the future on how many violations lead to jobs and back pay on a yearly basis and how many are technical violations that do not directly impact the underemployment of individuals with disabilities and veterans.
At the end of the day, the goal is to secure jobs for qualified individuals with disabilities and qualified protected veterans. With the deletion in the final rules of some of the more onerous requirements, I sincerely hope that contractors will be able to focus more on that effort and less on paperwork exercises for OFCCP.