SECTION 503 REVISED RULE: CRP OPPORTUNITIES AND RESPONSIBILITIES Presented By: Robert “Bobby” Silverstein, JD

INTRODUCTION Advance Notice of Proposed Rulemaking (July 23, 2010) Advance Notice of Proposed Rulemaking (July 23, 2010) Notice of Proposed Rulemaking—(December 9, 2011) Notice of Proposed Rulemaking—(December 9, 2011) Final Rulemaking Final Rulemaking (September 24, 2013) (September 24, 2013) 2

INTRODUCTION Statement by Secretary of Labor Statement by Director of OFCCP Statement by Assistant Secretary, ODEP 3

OFFICIAL INFORMATION OFCCP Sources – Final rule in Federal Register Final rule in Federal Register – Fact sheet Fact sheet – Frequently asked questions Frequently asked questions – Chart of changes Chart of changes 4

INTRODUCTION Need for the revisions to Section 503 regulation Need for the revisions to Section 503 regulation – Policy framework in place since the 1970’s – Still significantly higher unemployment rate for individuals with disabilities – Still significantly lower labor force participation rate – Strengthening the regulations important means of reducing disparities 5

INTRODUCTION PURPOSE OF FINAL RULE – Provide contractors with tools to evaluate compliance – Proactively identify and correct deficiencies – Assist contractors in averting potentially expensive violation findings by OFCCP 6

INTRODUCTION Highlights Highlights – Strengthens the affirmative action provisions in order to create greater accountability and measure effectiveness – Establishes a utilization goal – Requires invitations to self-identify – Requires self-assessment re outreach and recruitment efforts – Requires data collection pertaining to applicants and hires with disabilities 7

INTRODUCTION Effective Date March 24, 2014 Phase-in of full compliance New contractors submit AAP within 120 days of commencement of contract 8

ORGANIZATION OF PRESENTATION Specifically, the following topics will be discussed: ADAAA Updates and Other Definitions Prohibitions Against Discrimination Purpose; Applicability Invitation to Self-Identify Workforce Utilization Goals and Annual Evaluation Data Collection Outreach and Recruitment AbilityOne and Sheltered Workshops Auditing and Reporting Systems and Recordkeeping 9

Specifically, the following topics will be discussed): Policy Statement Review of Personnel Processes Physical and Mental Qualifications Reasonable Accommodation Policy and Procedures Internal Communication Responsibility for Implementation Training Equal Opportunity Clause Availability of Affirmative Action Program Voluntary Affirmative Action 10

ADAAA-DEFINITION OF DISABILITY Definition of disability used in Section 503 regulation modified to reflect definition of disability used in ADA, as amended Term “disability” replaces the term “individual with disability” Retains 3-prongs of definition Definition construed in favor of broad coverage 11

OTHER DEFINITIONS Contractor Prime contractor Subcontractor Government contract Contracting agency 12

DISCRIMINATION Retains prohibitions against discrimination with minor modifications Clarifies reasonable accommodation obligation extends to use of electronic and online job application systems Clarifies that persons without disabilities cannot make claims of discrimination under Section

PURPOSE OF AFFIRMATIVE ACTION PROGRAM; APPLICABILITY 14 Explains general expectations o “Management tool” o “Institutionalizes commitment to equality of opportunity” o “More than a paperwork exercise” o “Dynamic in nature” o “Includes measurable objectives, quantitative analyses, and internal auditing and reporting systems” that measure progress Applicability

INVITATION TO SELF-IDENTIFY 15 Significant, substantive changes Pre-offer Invitation Rationale for new requirement Relationship to ADA EO Internet Applicant Rule

INVITATION TO SELF-IDENTIFY Post-Offer Invitation Invitation to Employees 16

INVITATION TO SELF-IDENTIFY Contractors may not compel or coerce individuals to self-identify Contractors may identify applicants and employees with known or obvious disabilities. Information on self-identification must be kept confidential and maintained in a data analysis file, not in the individual’s medical files 17

UTILIZATION GOALS AND ANNUAL EVALUATION 18 National utilization goal of 7 percent Purpose of utilization goal—benchmark to measure progress Not a rigid and inflexible quota Not a ceiling or a floor American Community Survey Despite limitations, still best source of nationwide disability data available today

UTILIZATION GOALS AND ANNUAL EVALUATION 19 Consideration of Alternative Approaches Mirror precisely the goals framework for minorities and women under EO National goal for all jobs in all geographic areas more viable approach

UTILIZATION GOALS AND ANNUAL EVALUATION 20 Rationale for setting the National Goal at 7% Estimate of the percentage of the civilian labor force that has disability Takes into account “discouraged worker effect”

UTILIZATION GOALS AND ANNUAL EVALUATION 21 Conduct annual evaluation Identify problem areas Develop and execute action-oriented programs

UTILIZATION GOALS AND ANNUAL EVALUATION Failure to attain goal not a finding or admission of discrimination Goals not used as “quota” or “ceiling” 22

DATA COLLECTION 23 Requires contractor to document several computations or comparisons pertaining to applicants and hires Data collected on an annual basis and documents maintained for a period of three years Data includes information regarding applicants and applicants hired (with and without disabilities)

OUTREACH AND POSITIVE RECRUITMENT 24 Required—undertake appropriate and positive recruitment activities Scope of efforts depend on: totality of circumstances, including size and resources adequacy of existing practices. Notice to subcontractors

OUTREACH AND POSITIVE RECRUITMENT Examples—enlisting the assistance and support of persons and organizations: – State VR, DD, and/or mental health agencies – America’s Job Centers – VA Regional Office – EARN – ENs – Local disability organizations, including CRPs – Career offices of educational institutions – Private recruitment sources 25

OUTREACH AND POSITIVE RECRUITMENT Examples of actions to fulfill commitment: – Formal briefing sessions at establishment – Special efforts to reach students with disabilities at educational institutions – Work-study, internships, job-shadowing programs – Career days, youth motivation programs – Attract individuals not currently in the workforce – Consider applicants with known disabilities for all available positions 26

OUTREACH AND POSITIVE RECRUITMENT Self-assessment of external outreach and recruitment efforts – Annual assessment – Documentation required – Conclusions reached – Implementation of alternative efforts if initial efforts ineffective Recordkeeping obligation 27

ABILITYONE AND SHELTERED WORKSHOPS Commenter requested that AbilityOne contractors be exempt from utilization goal requirement OFCCP rejected request – Final rule applies not just to direct labor – Final rule applies to entirety of contractor’s workforce and entirety of subcontractors’ workforces 28

ABILITYONE AND SHELTERED WORKSHOPS OFCCP explanations regarding the utilization goal requirement and: Contractor relationships with sheltered workshops Contractor established sheltered workshops Training at sheltered workshops Prohibiting contractors from using sheltered workshops 29

AUDITING AND REPORTING SYSTEM AND RECORDKEEPING 30 Adds provision clarifying that the new recordkeeping requirements must be maintained for three years Recordkeeping also applies to the new provision requiring the contractor to document actions to comply with audit and reporting system

POLICY STATEMENT 31 Replaces the provision that the policy statement “SHOULD indicate the chief executive officer’s attitude on the subject matter” with the requirement that “the policy statement SHALL…” Specifies topics to be addressed in the policy statement Requires accessible notice

REVIEW OF PERSONNEL PROCESSES 32 Prescribes careful, thorough, and systemic review of personnel processes Provide for periodic review Ensures equal access to information and communication technology through reasonable accommodation Contractors encouraged to make ICT accessible

PHYSICAL OR MENTAL QUALIFICATIONS 33 Schedule review of physical and mental job standards Use of direct threat defense

REASONABLE ACCOMMODATION POLICY AND PROCEDURES 34 Best practice–develop and implement written procedures for processing requests. Reasonable accommodation obligation and use of electronic or online job application systems

EQUAL OPPORTUNITY CLAUSE 35 Adds requirement to post notices in electronic format Adds affirmation in solicitations and advertisements that it is an EEO employer Prescribes reference to Section 503 regulation in contract

AVAILABILITY OF AFFIRMATIVE ACTION PROGRAM 36 Availability of full affirmative action program to any employee or applicant Exception for required data metrics Post location and hours.

INTERNAL COMMUNICATIONS 37 Include affirmative action policy in policy manual or otherwise make available If party to a collective bargaining agreement, notify union officials and/or employee representatives Document activities and retain records

RESPONSIBILITY FOR IMPLEMENTATION 38 Official assigned responsibility for implementation Identity should appear on all internal and external communications Individual given necessary senior management support and staff to manage implementation.

TRAINING 39 Personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained

VOLUNTARY AFFIRMATIVE ACTION PROGRAMS 40 The contractor is permitted to develop and implement voluntary affirmative action programs for individuals with disabilities to increase training and employment opportunities

To Learn More Visit ACCSES Facebook – ACCSESDC Twitter 41