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The DOL announced the proposal during a Dec. 8, 2011, news conference in Washington, D.C. The proposed rule, which was to be published in the Dec. 9, 2011, Federal Register, invites the public to make comment to the Office of Federal Contract Compliance Programs (OFCCP) through Feb. 7, 2012.
The proposed changes detail actions that federal contractors and subcontractors would have to take in recruiting, training, recordkeeping and policy dissemination, similar to what has been required to promote workplace equality for women and minorities.
The rule would mandate annual employer self-reviews of their recruitment and outreach efforts and would require federal contractors to list job openingsto increase their pools of qualified applicants, according to the DOL.
That includes listing openings in the nearest Employment One-Stop Career Center and entering into three linkage agreements, which are connections between the contractor and what the DOL considers an appropriate recruitment and/or training source. The OFCCP plans to provide a sample linkage agreement on its web page. Additionally, the contractor must document its review of outreach and recruitment efforts.
The aim of the proposed changes is to strengthen the affirmative action requirements established under Section 503 of the Rehabilitation Act of 1973, which predates the Americans with Disabilities Act and which has remained unchanged for four decades, according to Seth D. Harris, deputy secretary of labor.
Currently, federal contractors and subcontractors “merely have to show good faith efforts to comply … but without a particular goal in mind” toward hiring Americans with disabilities, he said during the news conference.
The current framework “has not significantly increased the employment of people with disabilities as Congress intended,” Harris said. The government estimates in its proposed regulation that the unemployment rate for working-age individuals with disabilities was 14.8 percent vs. an unemployment rate of 9.4 percent for those without disabilities.
Under the proposal, he said, “good-faith efforts will be replaced with clear measures. We’ve heard from the business community that when they have a clear goal they will perform in a way that will meet that goal.”
Patricia A. Shiu, director of the OFCCP, called Dec. 8, 2011, a historic day for the DOL and OFCCP.
The 7 percent hiring goal for every job group in contractors’ and subcontractors’ workforces is “meant to be a yardstick to help employers assess how they’re doing and help us better evaluate their efforts,” she said.
OFCCP is requesting comment on using 7 percent as its hiring utilization goal, as well as on a hiring range of between 4 percent and 10 percent.
“The lower and upper bounds of this range are designed to take into account the variability across the EEO-1categories, the potential for geographic variation in availability, and whether or not adiscouraged worker effect should be taken into account,” according to wording in the proposed rule change.
She noted that addressing all the components of hiring and retention of workers with disabilities—including job postings and outreach, data collection and accommodation requests—gives everyone “a fair shot at competing for and staying in meaningful jobs.”
Other changes in the proposed rule include alterations to the definition of “reasonable accommodation,” addressing the increased use of telecommuting and work arrangements that do not require a physical office setting, and changes to the description of types of conduct that would violate the nondiscrimination requirements of Section 503.
The regulation would clarify that it would be impermissible for a contractor to reduce the amount of compensation it provides to an individual with a disability because of the “actual or anticipated cost of a reasonable accommodation the individual needs or requests.”
“We’re trying to give businesses clarity so they know what we are looking for and what we expect,” Shiu said.
Details on how to make comment can be found in the rule’s posting in the Federal Register.
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