OFCCP has proposed extensive new requirements for government contractors in an effort to promote the employment of qualified individuals with disabilities in the workplace. If the past is any indication of lead time, contractors typically are afforded 60 or 90 days in which to put in place the mechanisms for compliance once the regulations are published in their final form. Comments to OFCCP’s proposed rule are due no later than February 7, 2012. Although currently only in a proposed format, OFCCP would like to see these regulations become final before the end of calendar year 2012, if not sooner. Contractors that have significant concerns about the time, cost and resources involved in complying with the current proposal ought to consider raising these practical concerns by submitting comments.

Referral Agencies

Contractors will be required to establish linkage agreements with either the local State Vocational Rehabilitation Service Agency (SVRA) or a local Employment Network (EN) organization listed in the Social Security Administration’s Ticket to Work Employment Network Directory as well as with one of the following:

• entities funded by the Department of Labor that provide recruitment or training services for individuals with disabilities
• the One-Stop Career Center nearest the contractor’s establishment
• the Department of Veterans Affairs Regional Office nearest the contractor’s establishment
• local disability groups, organizations, or Centers for Independent Living near the contractor’s establishment
• placement or career offices of educational institutions
• private recruitment sources

In addition, the proposed regulations require that contractors consult the Employer Resources of the OFCCP’s National Resource Directory and establish a linkage agreement with one or more of the disabled veterans’ service organizations listed in the directory that is not one of the types of organizations already enumerated in the OFCCP’s regulations.

What are the local referral agencies in all of the locations where your organization has jobs? Do you have any existing relationship with them? Have you used them successfully? How many qualified candidates have they sent you in the past? What kinds of candidates do they typically refer? How robust are their own data banks?

The Record Keeping Obligations

How is your organization going to track the identity of the referral organizations described above? Do you have a question on your application that asks, “How did you hear about us?” If so, can you update the form to include all of the new required referral agencies that you will be expected to use? If you have an on-line application, what is the software development lead time necessary to change the application question, the database the answers would feed, and the ability to report out that information for annual reporting obligations?

How is your organization going to deal with the difference between reporting on the number of total applicants for each job and the definition of Internet Applicant, which does not require employers to look at every resume or application that comes in and does not require solicitation of candidates not qualified to perform the job?

Is your organization capable of maintaining these external outreach and dissemination data for three years? (There is no exception proposed for small businesses with fewer than 150 employees and contracts for less than $150,000, for whom the current requirement is only a 1-year record retention obligation).

How does your organization currently track self-identification of non-employee applicants? Are they assigned a unique identification number that is similarly used in your HRIS or payroll system? Do the systems “talk” to each other? How is your organization going to track candidate self-identification at the pre-offer applicant stage and at the post-offer invitation stage? What steps are you able to put in place to resolve contradictory or inconsistent self-identification information?

Unlike race or gender, which are fairly immutable characteristics, disability is not immutable, which is why OFCCP is proposing an annual re-self-identification for all employees, but the proposal is for this solicitation to be anonymous. How is your organization going to ensure that each person receives the solicitation and then ensure that the reply is anonymous? How will an annual anonymous solicitation help your organization achieve a 7% goal for each of your affirmative action plan job groups?

External Dissemination

Contractors will be required to send written notification of company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part. As proposed, this annual notification is not limited to vendors and suppliers whose work is necessary to the performance of a government contract.

Does your accounts payable department have an email address for every supplier and vendor with whom you do business? If not, it would seem prudent to begin getting one because an email notification is a very efficient mechanism to accomplish this aspect of compliance.

Annual Review of All Physical and Mental Job Qualifications

Does your organization have robust job descriptions for every job in the organization?

The new regulations would require that all physical and mental job qualifications are reviewed on an annual schedule, whether or not the qualifications are actually applied. Further, contractors will be affirmatively required to maintain documentation of the methods used to complete the review, the results of the review, and any actions taken in response.

Requirements to Record Rationale for Specific Employment Decisions Affecting Individuals with Disabilities

The proposed regulation would impose requirements that the contractor record and maintain specific information on the contractor’s consideration of applicants and employees as follows:

• Each position for which an applicant with a disability was considered and each training program for which an applicant with a disability was considered.
• Each promotion for which an employee with a disability was considered and each training program for which an employee with a disability was considered.
• A statement of the reason an applicant or employee with a disability was rejected for employment, promotion, or training.
• A description of any accommodations considered for an individual with a disability who is rejected for employment, promotion, or training.
• A record of any accommodation made and a description of that accommodation for any hire, promotion, or training that was made possible by an accommodation.

Can your organization map disability information back to every applicant considered for employment, every employee that took a training program, and every employee that was considered for promotion? How is your organization going to comply with the obligation to have a “statement of the reason an applicant or employee with a disability was rejected for employment, promotion, or training,” without making it known in the initial decision making process that the person is disabled? Regrettably, the statement “more qualified candidate selected,” is probably not going to be well-received by OFCCP as sufficient documentation as to why a disabled candidate was not selected for employment or promotion.

Comment Period

As a reminder, the time to submit comments to the proposed rule will expire on February 7. If you are concerned about how your organization is going to be able to comply or if you have suggestions that would enable OFCCP to accomplish its desired goal of increasing the employment of qualified persons with disabilities in the workplace, please consider submitting comments for OFCCP to take into account when it evaluates the final language of the rule.