OFCCP Seeks Public Input Relating to Section 503 of the Rehabilitation Act of 1973

Date: 7/25/10
Title: OFCCP Seeks Public Input Relating to Section 503 of the Rehabilitation Act of 1973

The Office of Federal Contract Compliance Programs (OFCCP) wants to strengthen its regulations requiring federal contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities. For those of you who have been involved in a recent OFCCP compliance review, you know that the focus on individuals with disabilities and veterans has been greater than ever.

On July 23rd, the OFCCP published an Advance Notice of Proposed Rulemaking (http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480b1fd5a) in the Federal Register seeking contractors input to help the agency revise the regulations implementing Section 503 of the Rehabilitation Act of 1973. Even though Section 503 regulations have been around since the early 1970s, the rate of disabled individuals who are unemployed remain significantly higher than those without disabilities, according to the Bureau of Labor Statistics. In June 2010, 21.7% of people with disabilities were in the labor force compared with 70.5% of people with no disability.

OFCCP is seeking public input by September 21, 2010 to the questions listed below. Comments can be submitted in the following manner:

Federal eRulemaking Portal: https://www.regulations.gov
OFCCP Website which has a link to the Federal eRulemaking Portal: http://www.dol.gov/ofccp/
Mail and hand delivery: Barbara J. Bingham, Acting Director, Division of Policy, Planning, and Program Development, OFCCP, Room N34222, 200 Constitution Avenue, N.W., Washington, DC 20210 (202) 693-0102 or (202) 693-1337 (TTY)

How can the affirmative action requirements of Section 503 be strengthened to measurably increase employment opportunities of covered contractors for individuals with disabilities? If available, include examples or information illustrating the effectiveness of the suggested new requirements.
Wha measures have contractors and subcontractors taken to fulfill the current affirmative action requirements of Section 503? How much did these measures cost?
What barriers currenty impede Federal contractors from hiring people iwth disabilities?
Are there changes that could be made to the existing language on permissible qualifications standards that would better ensure equal employment opportunities for individuals with disabilities?
If 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 he regulations implementing Executive Order 11246, what data should be examined in order to identify the appropriate availabiity pool of such indiviuals for employment?
Would the establishment of placement goals for individuals with disabilities measurably increase their employment opportunities in the Federal contractor sector? Explain why or why not.
What experience have Federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local, or foreign government?
What specific employment practices have been verifiably effective in recruiting, hiring, advancing, and retaining individuals with disabilities
To what extent does workplace flexibility, including flexibility in work schedules, as well as job-protected leave, impact recruitment and retention of individuals with disabilities?
Has training of employees and/or managers been effective in increasing advancement and/or retention of individuals with disabilities? If so, how?
Federal contractors are required to invite all job applicants to voluntarily and confidentially identify their race and gender pre-offer. The collection of this information allows contractors to monitor the impact of their employment practices by race and gender to assess progress in meeting their affirmative action goals. Existing Section 503 regulations require contractors to invite applicants to voluntarily and confidentially self-identify as a person with a disability after making an offer of employment but before the applicant begins 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 pror to an offer of employment enhance a federal contractor's ability to more effectively monitor their hiring practices with respect to applicants with disabilities? Note that a Seciton 503 regulation requiring contractors to invite voluntary and confidential self-identification as an applicant with a disability pre-offer for affirmative action purposes would not violate the Americans with Disabilities Act.
How can linkage agreements between Federal contractors and organizations that focus on the employment of individuals with disabilities be strengthened to increase effectiveness? Do linkage agreements have better outcomes when higher level company officials are responsible for their implementation? Include example of cooperative agreements betweeen employers and disability or community recruitment organizations that have been helpful in hiring persons with disabilities.
What impact would result from requiring that Federal contractors and subcontractors make information and communication technology used by job applicants in the job application process, and by employees in connection with their employment fully accessible and usable by individuals with disabilities? What are the specific costs and/or benefits that might result from this requirement?
What other specific changes to the Section 503 regulations might improve the recruitment, hiring, retention, and advancement of individuals with disabilities by Federal contractors?
Regulatory Flexibility Act - Consistence with the Regulatory Flexibililty Act, the Department of Labor must consider the impacts of any proposed rule on small entities, including small businesses, small nonprofit organizations and small governmental jurisdictions with propulations under 50,000. The DOL encourages small entities to provide data on how additional requirements under Section 503 may impact them.
OFCCP seeks public comments on the types of small entities and any estimates of the numbers of small entities that may be impacted by this rule.
OFCCP seeks public comment on the potential costs of additional 503 requirements on small entities.
OFCCP seeks public comment on any possible alternatives to the proposed measures that would allow the agency to achieve their regulatory objectives while minimizing any adverse impact to small businesses.

Share your views with OFCCP so that they have useful information for which to consider when making modifications to the regulations.

The foregoing have been prepared for the general information of clients and friends of Workplace Dynamics LLC. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.