On April 18, 2012, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing with the august title of "Reviewing the Impact of the Office of Federal Contract Compliance Programs' Regulatory and Enforcement Actions."
It appears that the employment of disabled veterans has become the top priority of both the Department of Labor and the EEOC. It seems there is a competition among the federal agencies to show which is more supportive of disabled vets. DOL, through the offices of the OFCCP, has issued controversial Proposed Regulations for significantly enhanced affirmative action entitlements for individuals with disabilities. Now the EEOC has issued a new Guidance: Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers.
In a significant raising of the stakes in the debate over whether OFCCP will grant more time to file comments on the proposed 503 regulations, the House of Representatives Workforce Committee has requested that the comment period be extended by 90 days. In a letter dated January 27, 2012, the Committee on Education and the Workforce requested that more time be provided to comment on the proposed affirmative action and non-discrimination regulations published by the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) under Section 503 of the Rehabilitation Act. Those proposed regulations would constitute a self-described “sea change” in the structure and purpose of affirmative action, not least by imposing a 7% hiring “goal” for individuals with disabilities.
Remember when the U.S. Department of Labor’s stated position by the Office of Federal Contractors Compliance Programs (OFCCP) was “we really are interested in federal contractors’ views”? Apparently, the agency really doesn’t want to hear that much from the regulated public – at least when it comes to developing new affirmative action and non-discrimination regulations.
In one of Judge Richard Posner’s more celebrated opinions, he wrote that giving preferential hiring to individuals with disabilities would be “affirmative action with a vengeance.” No matter what the Bible says, in this case, vengeance belongs to the Office of Federal Contract Compliance Programs (OFCCP).
At the recent National ILG Conference, FortneyScott and WorkPlace HR presented a session entitled “You Can’t Unring the Bell: How to Really Prepare for a Compliance Review.” Of the practical tips for avoiding common EEO and Affirmative Action pitfalls, we particularly emphasized the need for EEO practitioners to integrate themselves into various departments throughout the organization. I know what you’re thinking: “Have you seen my calendar?” “Do you know how many meetings I already attend?” “Do you hear that constant chirruping? That’s my BlackBerry notifying me of the emails I’m missing while I’m reading this.” Hear me out.
OFCCP Director Shiu conducted a live Q&A webinar and provided a good overview on a number of pending issues. She confirmed that we will have the proposed regulations under 503 of the Rehab Act in the near future (anticipated before Labor Day) and that the Agency continues to work on proposed compensation guidelines. Although there is some loose coordination with EEOC, there is room for enhanced coordination in compensation matters. In addition to the pending rulemaking and guidance, Director Shiu provided updated enforcement statistics, including the strong likelihood that individual complaints result in uncovering violations. We have prepared a summary organized by topics that will make it easy for you to see the specific responses under each area. This is a welcome development to have Director Shiu provide this information on the OFCCP regulatory agenda as well as other pending Agency developments.
In May 2010, the OFCCP abruptly announced that it was no longer accepting requests for or renewals of Functional Affirmative Action Plans (FAAPs). No reason was given and none has been forthcoming. The absence of any explanation led to considerable speculation as to the reason for the suspension of what most federal contractors thought was a useful program: based on the employer’s actual distribution of its employees; reducing the number on facility-based plans; with no diminution of affirmative action. Some practitioners suggested that the new leaders of OFCCP were suspicious of the FAAP program for no other reason than it was established during the Bush II administration. The speculation may stop now that the agency has issued a new Directive continuing the FAAP program, with revised procedures.
It’s that time of year already: hot days, barbecues, swimming pools, and (drumroll, please…) midyear monitoring of your Affirmative Action Programs! Amidst all the hubbub of summer, it’s easy to let periodic internal audits (or midyear monitoring in our lingo) slide to the bottom of your work agenda. But you shouldn’t. Out of the many EEO and Affirmative Action obligations that federal contractors have, midyear monitoring is really designed to help you meet your obligations.
Last week, on April 26, 2011, the Office of Federal Contract Compliance Programs (OFCCP) published a long-anticipated Notice of Proposed Rulemaking (NPRM) in the Federal Register that would strengthen the affirmative action obligations imposed on federal contractors and subcontractors concerning veterans protected under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), including disabled veterans. The proposal would impose some similar obligations as those currently applicable to women and minority group members under Executive Order 11246. Click on the following link to review the NPRM: OFCCP's Proposed VEVRAA Regulations.
Since the public comment period closed March 4 on OFCCP’s proposed rescission on the Compensation Standards and Voluntary Guidelines, contractors that expended significant time and resources to develop SSEGs have wondered, “What now?” While OFCCP believes it “unnecessary” to issue new guidance on compensation analysis, apparently there is plenty going on behind the scenes at the Agency.
FortneyScott is a Washington, DC-based law firm counseling and advising clients on the full spectrum of workplace-related matters. We offer...
More