OFCCP Issues NPRM for Section 503 - Changes to include Affirmative Action Goals for People with Disabilities

by Robert Newland

The Office of Federal Contract Compliance Programs (OFCCP) is proposing to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended.

The proposed regulations would:
- Strengthen the affirmative action provisions, detailing specific actions a contractor must take to satisfy its obligations
- Increase the contractor's data collection obligations
- Establish a utilization goal for individuals with disabilities to assist in measuring the effectiveness of the contractor's affirmative action efforts
- Revise the non-discrimination provisions to implement changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008

COMMENTS: To be assured of consideration, comments must be received on or before February 7, 2012. Go to www.regualtions.gov (RIN number 1250-AA02) to submit comments.

Affirmative Action Services will provide more comments in the near future.

OFCCP Issues NPRM for Section 503 - Changes to include Affirmative Action Goals for People with Disabilities

The Office of Federal Contract Compliance Programs (OFCCP) is proposing to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended.

The proposed regulations would:
- Strengthen the affirmative action provisions, detailing specific actions a contractor must take to satisfy its obligations.
- Increase the contractor's data collection obligations
- Establish a utilization goal for individuals with disabilities to assist in measuring the effectiveness of the contractor's affirmative action efforts
- Revise the non-discrimination provisions to implement changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008

DATES: To be assured of consideration, comments must be received on or
before February 7, 2012.

ADDRESSES: You may submit comments, identified by RIN number 1250-AA02, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.

Our Company No Longer Has Federal Contracts: Should We Still Develop an AAP? by Jim Higgins, Ed.D

I was speaking with a client the other day and the question came up: “If a contractor loses their federal contract and they are no longer under obligation to the OFCCP, should they continue developing and using Affirmative Action Plans and other analyses as if we had a contract?”

This is an important question and it is highly perceptive of the company to ask it. While what I am about to say should not be considered legal advice as I am not an attorney (if you have any doubts, consult your legal counsel), following are points to consider.

Most companies find doing business with the federal government desirable—even if there are administrative complexities that come with federal contracts. While the best thing to do is to maintain a fully compliant Affirmative Action Plan because it makes good business sense, following at least some process that to help facilitate and monitor workplace diversity, documenting the validity of pre-employment selection devices, and monitoring the company’s compensation practices to ensure fairness can be a vital asset when competing for a new federal contract. Additionally, while the company may be able to simplify the procedures it follows to do this it will make it easier to build an existing system into one that is fully compliant when the new contract is awarded.

It is important, however, that your company NOT call your system an “Affirmative Action Plan” or in any way imply that it is “partially compliant” with OFCCP requirements. From the OFCCP’s perspective, there is no “Affirmative Action Plan Lite” (Truesdell, Secrets of Affirmative Action, 2007). From the OFCCP’s perspective, your company is either in compliance or it is not. Therefore, the company should call their system something that will not confuse it with an OFCCP compliant process. For example, it could be called the company’s “Employee Diversity and Equity Initiative.”

Even if there is no intent to compete for federal contracts in the future, a Diversity and Equity Initiative makes tremendously good business sense. Some reasons for this are presented below:

1. A diverse workforce will bring a diversity of ideas, skills, and perspectives to the company. This foster’s creativity and will result in novel solutions that may have never occurred to a workforce that is homogeneous.

2. Identifying groups that are underrepresented will help the company uncover barriers to employment that undermine diversity and reduce the creativity and productivity noted in bullet 1, above.

3. Evaluating and validating the company’s pre-employment tests, promotional examinations, and certification programs will both help ensure that the best person is placed in a job as well as serve as a bulwark against claims of employment discrimination. Conducting a job analysis, which is required to validate pre-employment tests and certification examinations, also provides the information to develop high quality training programs, performance appraisal systems, and developing high quality job descriptions.

4. Regularly monitoring employee compensation practices will help the company to build a positive, highly motivated, and committed workforce. It will also help the company defend against charges of compensation discrimination.
One advantage of setting up a Diversity and Equity Initiative in the absence of federal contracts and the requirement to report data to the OFCCP is that the company can build the system over time. This makes it cost-effective to create the highest quality system in an environment that is not “rushed” by the need to comply with contract requirements.

Should you have questions regarding Affirmative Action Plans, diversity initiatives, test-development, or compensation analysis, please visit our website at www.AffirmativeActionServices.com.

FAAP Webinar by the OFCCP

The Office of Federal Contract Compliance Program (OFCCP) has issued a new directive outlining the application and approval procedures for Functional Affirmative Action Program (FAAP) Agreements. Federal contractors and their subcontractors are required to comply with the guidance in the new FAAP Directive which became effective June 14, 2011.

This webinar is designed to provide an overview of the key changes to the FAAP Directive and the procedures for requesting, renewing, modifying and terminating FAAP agreements. The OFCCP Acting FAAP Director, Ms. Nakisha Pugh will conduct the webinar, which will last approximately 1.5 hours long that includes 30 minutes of Q&A opportunities.

Date: Tuesday, August 9, 2011
Time: 2:00 PM - 3:30 PM EDT
After registering you will receive a confirmation email containing information about joining the Webinar.

Space is limited.

Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/872699264

OFCCP Issues New Functional AAP Directive

This directive is effective immediately and outlines the application and approval procedures for FAAP's. Click on this link for the full directive text:
http://www.dol.gov/ofccp/regs/compliance/directives/dir296.pdf

VEVRAA Comment Period Extended

On April 26, 2011, the Office of Federal Contract Compliance Programs (OFCCP) published in the Federal Register a notice of proposed rulemaking (NPRM). This NPRM (76 FR 23358) proposes revising regulations implementing the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended.

The original comment period is scheduled to end on Monday, June 27, 2011. After receiving several requests for extensions, OFCCP is extending the comment period for this NPRM for 14 days until Monday, July 11, 2011. This action will provide all interested persons additional time to analyze the issues and provide their comments on the NPRM. Parties interested in commenting can view the NPRM and submit comments by using the Federal eRulemaking Portal www.regulations.gov and referencing RIN 1250-AA00.

OFCCP is publishing a Federal Register notice announcing this two-week extension of the comment period.

How to conduct layoff’s in a valid and effective manner – By Dr. Jim Higgins, Ed.D.

To me, it is increasingly evident that if the country is not falling back into recession, we are at least heading into more difficult times. Employers ranging from defense to construction, government to the private sector appear to be starting another round of layoffs. Any time an employee is let go, it represents a difficult decision which is fraught with potential legal exposure.

However, there are steps that an employer can take to both protect themselves from legal exposure as well as maximize the likelihood of maintaining the most effective, innovative, productive, and diverse workforce. For this article, we will assume that an employer—after careful deliberation—has decided that they must shrink the size of their workforce for a given division. How should the employer proceed?

Step 1 – Identify those jobs that represent redundancies or which can endure layoffs without affecting the employer’s ability to conduct its fundamental business. This decision must be made with care. Otherwise, the employer may save money “now” at the cost of its long-term survival.

Step 2 – Once step 1 has been completed, conduct a proactive Adverse Impact Analysis (also called a “what if?” Adverse Impact Analysis) to determine whether specific groups of employees are being negatively impacted based on their gender, ethnicity, etc. If Adverse Impact exists, attempt to determine why critical jobs appear to have a different makeup than those considered less critical. Are there barriers to recruitment? Is the difference due to external factors such as differences in the qualified workforce? Are there steps that the organization can take to increase under-represented employee groups’ qualifications for the more critical jobs? If so, create plans to provide these development opportunities or explain the differences.

Step 3 – Within each job that will undergo layoffs, identify the key factors that distinguish between high and low performing employees. Where possible and appropriate, the employer should rely on a job analysis that identifies the knowledge, skills and abilities as well as the level of mastery a qualified employee should have.

Step 4 – Using the key factors identified in step 3, decide which employees will be retained and which will be let go. If two employees are exactly equal in terms of their possession of the key factors, try to make the layoff decision in a random fashion. If the difference in group representation turns out to be large (e.g., far more males than females), consider if there are situations where it appears that a male and female are “identical” in terms of their possession of the key factors. If so, dig deeper and try to determine whether they really are identical. If the retained employee is superior, retain him. If the laid off employee is superior, change the decision to retain her. If males are represented at a higher rate than females and females comprise a larger proportion of the relevant labor force, contact your legal counsel for assistance.

Step 5 – If the sample size is large enough for a job title, consider using the statistical tool known as Binary Logistic Regression to verify that your retain/not-retain decisions are valid. This statistical tool, like multiple regression in compensation analysis, allows the employer to determine whether, after controlling for legitimate job related factors, retention decisions were impacted by the employees gender or ethnicity.

This article was intended to help employers understand a valid process for conducting layoffs. It is not intended to be considered legal advice and all employers are strongly encouraged to make any and all significant employment decisions that could expose the organization to a risk of litigation with the assistance of their legal team.

If you require further analytical assistance on this or any other EEO/AA topic, contact Affirmative Action Services at Info@AffirmativeActionServices.com or call Dr. Jim Higgins at (916) 204-1749.

Visit our website at www.AffirmativeActionServices.com