Jordan Ramis pc. Attorneys at law
The Federal Government Wants Your Opinion on Affirmative Action Programs
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Fall 2010

Are you a contractor or subcontractor with a federal or federally assisted construction contract? Is your contract in excess of $10,000? Then you may be aware of the Office of Federal Contractor Compliance Programs (OFCCP). Even if you haven't heard the name, you may have noticed that a contractor with whom you do business required you to develop a written affirmative action program — that's the OFCCP at work.

The OFCCP administers affirmative action and equal employment opportunity programs for job seekers who do business with the federal government. Several laws empower them to do this, including Section 503 of the Rehabilitation Act, as amended (29 U.S.C. 793 — commonly known as "Section 503"), which requires employers with federal contracts to take affirmative steps to hire, retain, and promote qualified individuals with disabilities.

On July 23, 2010, the OFCCP issued an Advance Notice of Proposed Rulemaking, inviting the public — especially small businesses — to comment on the OFCCP's plans to strengthen the affirmative action requirements of Section 503. The most recent numbers (March 2010) show that unemployment among people with disabilities is 13.9 percent — compared with 10.1 percent for similarly situated individuals without disabilities. The OFCCP is considering adopting measures similar to those required under another law that the OFCCP administers: Executive Order 11246. Under that program, contractors are required to compare the percentage of women and minorities in each job group at an establishment with the availability of qualified women and minorities in the relevant recruitment area. Generally, "availability" is a percentage estimate of women and minorities who are deemed qualified for employment within the area using data like Census Bureau and state employment service statistics.

How will this affect you? If the rulemaking goes forward, you may have to compare the number of disabled employees on your federal projects with an estimate of the number of qualified disabled people available for employment in the area where you are working. If you are not in compliance, and actively hiring, training, and promoting qualified individuals with disabilities, current sanctions include withholding of progress payments, termination of your government contract, and being debarred from receiving future government contracts.

The OFCCP wants your input on the proposed change. Specifically, they want to know:
  1. What measures have contractors and subcontractors taken to fulfill the current affirmative action requirements of Section 503? How much did these measures cost?
  2. What experience have federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local, or foreign governments?
  3. What specific employment practices have been verifiably effective in recruiting, hiring, advancing, and retaining individuals with disabilities?
These are just a few of the areas in which the OFCCP is seeking feedback. Read the full description of what's proposed in the Federal Register.

Submit your comments to the OFCCP online at http://www.regulations.gov and follow the instructions for submitting comments. The deadline for submitting comments is September 21, 2010.