Preparing for the new Sections 503 and 4212: What should members focus on Nita Beecher Employment Law & Litigation Group October 5, 2012

MERCER 1 September 7, 2015 Overview of new Sections 503 and 4212 Definitional Changes Workforce Composition Goals / Benchmarks Self-identification Early & Often Outreach, Outreach, Outreach New Reasonable Accommodation Process Data Collection, Analysis & Recordkeeping Transparency and Accountability Training Annual Report Priority Consideration

MERCER 2 September 7, 2015 Definitional changes Section 503 / Disability Adopts ADAAA definitions ►disability ►major life activities ►physical or mental impairment ►regarded as ►substantially limits ►record of such an impairment ►direct threat ►mitigating measures Section 4212 / Veterans VEVRAA >>>“Section 4212” ► Covered veteran >>> “protected veteran” ► Other protected veteran >>> “active duty wartime or campaign badge veteran” ►Vets 100/100A categories not changed

MERCER 3 September 7, 2015 Benchmarks & Workforce Composition Goals Section 503 / Disability Workforce composition goal ►not hiring goal ►Single, nationwide utilization goal ►7% ►in each job group ►Possible 2% sub-goal for individuals with more significant disabilities Section 4212 / Veterans Goal established by contractor considering: ►% vets in civilian labor force ►# vets who participated in ESDS/Department of Veterans’ Employment & Training Service ►referral, applicant & hiring ratios ►effectiveness of contractor's external outreach & recruitment efforts ►any other factors affecting availability of qualified protected veterans

MERCER 4 September 7, 2015 Self-Identification (Early and Often) Section 503 / Disability ► Pre-offer ►Post-offer ►Annual survey of employees ►Note: 7% workforce composition goal is only obtainable IF applicants/employees with disabilities are willing to self-identify-will they? Section 4212 / Veterans ► Pre-offer ►Post offer

MERCER 5 September 7, 2015 Outreach, Outreach, Outreach Section 503 / Disability Must provide job vacancy information to the appropriate ESDS “in the manner required by the service” ►Must provide information re: staffing or temp agencies used ►Cannot rely on 3rd party to do it correctly Linkage agreements ►1 Stop Career Center ►State Voc Rehab Service Agency ►National Resource Directory ►One more from list Section 4212 / Veterans Same PLUS: ►Must specifically request priority referrals of protected veterans job openings Linkage agreements ►Local Vets Rep ►National Resource Directory ►One more from list

MERCER 6 September 7, 2015 Specific Reasonable Accommodation Process Section 503 / Disability Written accommodation policy w/specific elements All reasonable accommodation requests must be processed within 10 business days (if no supporting medical documentation) ► If medical documentation / or if special equipment must be ordered not exceed 30 days, absent extenuating circumstances Any denial or refusal to provide a reasonable accommodation must be provided IN WRITING Rest same as 4212 Section 4212 / Veterans Rationale for rejections and information regarding accommodations: ►Written reasons for each decision to reject for hire, promotion or training ►Description of accommodations considered for rejection provided for disabled vets selected for hire, promotion or training Must seek advice of applicants regarding accommodations, when applicable If undue hardship, disabled vet may cover cost of the accommodation

MERCER 7 September 7, 2015 Data Collection, Analysis & Recordkeeping Obligations Section 503 / Disability Must maintain quantitative measurements & comparisons for persons w/ disabilities: ►referrals w/ disabilities from ESDS & other linkage entities/ referrals applicant ratio: apps w/ disabilities to total applicants ►hiring ratio: hires w/ disabilities to total hires ►job fill ratio of openings to filled openings For “direct threat” – a statement of the reasons supporting the belief of the direct threat Maintain records for 5 years Section 4212 / Veterans Must maintain similar quantitative measurements & comparisons for vets: ►priority referrals of vets /all referrals from ESDS ►applicant ratio: vet apps/ total applicants ►hiring ratio: vet hires / total hires ►job fill ratio - same For “direct threat” – same Maintain records- same

MERCER 8 September 7, 2015 Transparency & Accountability Section 503 / Disability EO Clause verbatim in subcontracts & purchase orders ► Very long; impractical Retain records for 5 years Send written notification of AA policies & efforts to subcontractors, including vendors & suppliers, to request compliance by them ID official responsible for contractor’s affirmative action activities on ALL internal and external communications re: affirmative action CEO must publicly & personally support contractor’s affirmative action obligations Post notice for employees working offsite Section 4212 / Veterans Same

MERCER 9 September 7, 2015 More Training, More Sensitivity Section 503 / Disability Contractors would be required to ANNUALLY provide training to all supervisors and managers on the accommodation procedures ► Most onerous training obligation of state or federal EEO laws Must provide ADDITIONAL training to all personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes on ► The benefits of employing individuals with disabilities ► Appropriate sensitivity toward applicants employees with disabilities, and ► The legal responsibilities of contractor and its agents regarding individuals with disabilities Must record who attended; keep 5 years Section 4212 / Veterans No mention of supervisor/manager training on accommodation procedures All other training requirements are the same, but for veterans

MERCER 10 September 7, 2015 Annual Report & Priority Consideration Section 503 / Disability Required to submit ► annual report containing measurements and computations ► % applicants, new hires, & total workforce who are individuals with disabilities for each EEO-1 category ► even if not selected for audit OFCCP encouragement to voluntarily develop & implement programs ► priority consideration in recruitment and/or hiring Unclear whether such preference programs would be lawful ► OFCCP cites no legal authority Section 4212 / Veterans No change Still required to submit VETS 100/100A Local employment service offices already give priority referral to protected veterans for jobs listed by a Federal contractor OFCCP will now expect/ measure hiring from priority referrals

MERCER 11 September 7, 2015 Sample of current OFCCP vets/disabled requests Veterans State job postings during review 3 years VETS-100/VETS-100A reports Self-id forms Executed contracts/purchase orders with correct language Posting where employees can view AAP Invitation to vets to self-id and posting List of employees self identifying as vets List of applicants id’d as vets, whose hired and if not why not Disabled Leave and accommodation policies Job descriptions with medical and physical requirements Info on review of medical and physical requirements Employees or applicants denied promotion or hire due to medical or physical job requirements Onllne accessibility Accommodation request list (name, date of hire, request, granted and if not why not Disability leave list Maternity leave list Disabled applicant list