The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will issue an Advance Notice of Proposed Rulemaking (ANPRM) (pdf) to invite public comments as to how the agency can strengthen the affirmative action requirements relating to Section 503 of the Rehabilitation Act. As discussed in the ANPRM, Section 503 requires covered federal contractors to:
- employ nondiscriminatory employment practices;
- provide reasonable accommodations to qualified job applicants and employees with disabilities;
- after a job offer is extended but before employment begins, invite job applicants to voluntarily and confidentially self-identify as to whether or not they have a disability in order to benefit from any affirmative action programs covered contractors may have;
- maintain personnel and employment records; and
- for those contractors and subcontractors with 50 or more employees and a contract of $50,000 or more, develop and maintain a written affirmative action program (AAP).
The OFCCP claims that it is time for the agency to reexamine its affirmative action policies, which were last revised in May 1996, “to make them more effective and to help ensure that more people with disabilities are employed and are given the opportunity to advance in employment in the Federal contracting labor force.” To that end, the OFCCP states that it is considering adopting measures similar to those required under the Executive Order 11246 program for supply and service contractors. This program requires covered contractors to compare the percentage of women and minorities in each job group at an establishment with the availability of women and minorities to work in those positions. Before issuing a proposed rule outlining similar requirements applicable to individuals with disabilities, the OFCCP is seeking information from the public on 18 separate inquiries outlined in the ANPRM. These questions include the following:
- How can the affirmative action requirements of Section 503 be strengthened to measurably increase employment opportunities of covered contractors for individuals with disabilities?
- What measures have contractors and subcontractors taken to fulfill the current affirmative action requirements of Section 503? How much did these measures cost?
- What barriers currently impede federal contractors from hiring people with disabilities?
- If the OFCCP were to require federal contractors to conduct utilization analyses and to establish hiring goals for individuals with disabilities, comparable to the analyses and establishment of goals required under the regulations implementing Executive Order 11246, what data should be examined in order to identify the appropriate availability pool of such individuals for employment?
- Would amending the Section 503 regulations to require contractors to invite all applicants to voluntarily and confidentially self-identify if they have a disability prior to an offer of employment enhance a federal contractor’s ability to more effectively monitor their hiring practices with respect to applicants with disabilities?
- Are there any possible alternatives to the proposed measures that would allow the OFCCP to achieve their regulatory objectives while minimizing any adverse impact to small businesses?
Responses to these and other inquiries, which must be made within 60 days after the ANPRM is published in the Federal Register on July 23, 2010, are due on or before September 21, 2010 and must be identified by the regulatory identification number (RIN) 1250-AA02. Such comments may be submitted electronically through the federal eRulemaking portal: www.regulations.gov, or sent via mail or hand-delivery to: Barbara J. Bingham, Acting Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room N3422, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Clients interested in commenting through Littler are welcome to do so by contacting their Littler attorney or the OFCCP Practice Group Co-Chairs, Alissa Horvitz and George Chaffey.