2.22.10

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Although the Office of Federal Contract Compliance Programs stepped up enforcement of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act toward the end of the Bush administration, those efforts pale in comparison with the Obama administration’s stated agenda. Patricia Shiu, the new Assistant Secretary over the OFCCP, has announced increased focus on enforcement regarding veterans and disabled workers. Contending that the agency had done “literally nothing” for the past eight years in the area of veterans and disability, Shiu promises change.

Covered federal contractors and subcontractors are required to take affirmative action to recruit, hire, train, and retain individuals with disabilities and certain categories of veterans. These obligations have, however, taken a back seat to enforcement of Executive Order 11246, which requires the same affirmative action for females and minorities. Executive Order 11246 also requires a detailed analysis of the race and gender demographics in an employer’s workforce, as well as employment activity and compensation practices.Where unexplained areas of disparate impact exist, contractors are often required to pay large amounts in monetary penalties. (During the Bush administration, the OFCCP had record monetary recoveries year after year).

By contrast, under the Rehabilitation Act and VEVRAA, contractors are not required to conduct any such analysis, primarily because of the lack of comparative data for individuals with disabilities and veterans. Without the analyses, there is no possibility of monetary recovery, which may explain the disproportionate emphasis on enforcement of Executive Order 11246 until now.

In its Congressional Budget Justification for Fiscal Year 2011, the agency says that it will “solicit recommendations from unions, civil rights groups, community-based organizations, and other stakeholders which are designed to ensure that the regulations [implementing the Rehabilitation Act and VEVRAA] are responsive to stakeholder needs and concerns.” To this end, the OFCCP has been conducting town hall meetings and “listening sessions” to gather comments from the public regarding possible changes to its regulations. Shiu has said that the agency intends to publish proposed regulations updating contractor requirements under these laws in December 2010. There is speculation that the new regulations will require contractors to analyze their recruitment and hiring efforts with respect to individuals with disabilities and covered veterans, and to establish numerical goals for these groups, as is currently required for females and minorities.

In the past, the OFCCP’s enforcement of the Rehabilitation Act and VEVRAA has included little more than requesting documentation of contractors’ good-faith efforts to recruit individuals with disabilities and veterans during the course of a compliance review. More recently, however, Constangy attorneys and affirmative action specialists have observed that the OFCCP is conducting on-site investigations of compliance with the Rehabilitation Act and VEVRAA, even in instances where the Females & Minorities plan shows no areas of disparate impact or other problems.

In light of this focus, to be prepared for a possible compliance review, we recommend that all contractors take, at a minimum, the following steps:

  • Review your AAPs for Individuals with a Disability and Covered Veterans and re-familiarize yourself with its provisions and your responsibilities.

  • Ensure that all external job openings lasting more than three days (except for top executives) are listed with the appropriate state unemployment office.

  • If you accept online applications, provide a notice describing how individuals with disabilities may request reasonable accommodations in the application process.

  • If you use an online application process, post the EEO notices required by the regulations so that electronic applicants will see them at some point during the process. Companies are used to posting hard copies of these notices in areas where traditional applicants apply, but the OFCCP is now checking to ensure they are equally available to electronic applicants.

  • Routinely notify organizations that help disabled individuals or veterans find employment of your commitment to equal employment opportunity and affirmative action, and advise where and how interested candidates can apply for employment with your company. (Of course, this should also be done with female and minority organizations.)

OFCCP to “remodel” construction regulations

Speaking of dust, Shiu has also announced that the regulations covering construction contractors may soon be undergoing renovation. Various interest groups have begun a campaign to pressure the OFCCP to update the construction goals for females and minorities, which have not been changed in approximately 30 years. The current goal for females on construction projects is 6.9% of all hours worked; the goal for minorities varies depending on geographic location.

Although construction companies have historically received little attention from the OFCCP, the agency’s recent emphasis on compliance reviews of companies receiving stimulus funds under the American Recovery and Reinvestment Act has also increased the burden on construction companies, which received the majority of ARRA funds.

For more information regarding the OFCCP’s new agenda, or if you have any questions relating to affirmative action, please contact a member of Constangy’s Strategic Affirmative Action Practice Group or the Constangy attorney of your choice.

Don't forget! Constangy's Affirmative Action practice group presents a Quarterly Webinar series discussing recent AA topics, as well as their standard webinar programs. These webinars are presented to organizations individually for a flat rate regardless of number of attendees. To schedule one of our webinars for your organization, contact Cara Crotty or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 120 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Missouri, Illinois, Wisconsin, Texas, California and Massachusetts. For more information, visit www.constangy.com.

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