OFCCP Sets Sights on Disabled Workers

A proposed rule would require federal contractors and subcontractors to have at least 7 percent of their workforce be individuals with disabilities. And while the percentage is merely a target, experts foresee difficulties for employers that don't meet that goal.

Tuesday, January 10, 2012
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Federal contractors and subcontractors beware: The Department of Labor is taking aim at your effectiveness in hiring individuals with disabilities.

Last month, the agency's Office of Federal Contract Compliance Programs proposed new rules that would "obligate" federal contractors to "ensure equal employment opportunities for qualified workers with disabilities."

Under the proposed regulations, the OFCCP would require companies with federal contracts to set a goal of having people with disabilities make up seven percent of their workforce. In addition, the regulations would establish new recordkeeping and reporting procedures.

The rules would also require supervisors and managers to be trained annually on the processes.

"For nearly 40 years, the rules have said that contractors simply need to make a 'good faith' effort to recruit and hire people with disabilities," says OFCCP Director Patricia A. Shiu. "Clearly that's not working.

"Our proposal would define specific goals, require real accountability and provide the clearest possible guidance for employers seeking to comply with the law," she says.

The agency reports that the unemployment rate for disabled individuals is presently at 13 percent -- or 1-1/2 times the rate of those without disabilities.

The agency is soliciting comments on the proposed rules until Feb. 7, after which it will begin to draft final regulations. But, given the OFCCP is clearly serious about improving job opportunities for individuals with disabilities, experts say, federal contractors and subcontractors would be wise to revisit their practices and systems now.

While the seven-percent goal isn't an enforceable number, experts say, it wouldn't be a stretch to imagine the office will be more diligent in its efforts to audit businesses that don't reach that percentage.

"I would think the OFCCP would take a much closer look at those organizations," says Constantinos G. Panagopoulos, a partner with Ballard Spahr in Washington.

Fortunately, he adds, many federal contractors already have a framework for tracking and reporting this data in place, because they already collect and retain demographic data such as race.

Debra Steiner Friedman, a partner with Cozen O'Connor in Philadelphia, says she isn't surprised to see the OFCCP try to put more teeth into its rules.

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"For years," she says, "the agency has been trying to get federal contractors to identify the potential pool of people with disabilities and document their practices so they could be reviewed."

All the provisions being proposed by the OFCCP are excellent "best practices," Friedman says. Nonetheless, she adds, some contractors will likely find complying with some of them "onerous."

Affected employers are going to need to make sure "each and every step and procedure is being properly followed and that they're providing a proper paper trail," Friedman says.

Inevitably, she adds, that "paper trail" could be used by individuals to bolster discrimination claims against employers.

The rule will present a challenge for many employers, Friedman says. While seven-percent is a "good goal," she says, "some employers are going to find it very hard to meet, especially for certain job categories."

Friedman points out that none of these regulations change the premise that employers should hire qualified workers.

Nonetheless, much like Panagopoulos, she believes there could be consequences for those employers that fall short of the seven-percent goal.


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