Walking a Fine Regulatory Line
Federal contractors will soon have goals for employing people with disabilities and protected veterans, but HR leaders will need to tread carefully as they try to achieve them.
By Susan R. Meisinger
A funny thing usually happens during a president's campaign for re-election. Public-policy initiatives that have any potential for generating controversy are quietly put on the regulatory back-burner. After all, presidential campaigns are all about staying on message, and anything that might garble or confuse the message is to be avoided.
What happens next, after the election, is also predictable. If the incumbent is elected, as President Obama was last year, policy issues that were placed on hold to avoid controversy during the campaign begin to emerge from the bureaucracies.
This isn't a partisan thing; it happens with both parties. Just as you can predict the leaves will fall in the autumn and the flowers will bloom in the spring, you can predict that a lot of new policy initiatives will be published during the year after a presidential election.
Not only is there a sense of urgency to finally get things out because the proposals have been pending for so long, but there's a sense of urgency to get it done as far in advance of the mid-term elections for members of Congress as possible. That way, hopefully, any controversy generated by the new policies will be just a distant memory on election day.
The reason for my short tutorial on the ways of Washington is to help you understand why, if you're a federal contractor -- subject to the regulations of the Office of Federal Contract Compliance Programs -- you're going to be particularly busy.
Once the regulations clear the White House, they'll be published and contractors will have six months to comply.
For the first time, contractors will have goals for the employment of people with disabilities and protected veterans.
The goal set for people with disabilities is 7 percent (for each job group). Contractors can set the goal as either equal to the national percentage of veterans in the civilian labor force (to be established annually by OFCCP), or establish their own goal using data from sources designated in the regulations.
Of course, the only way to know if a goal is attained is to know whether an applicant or employee is either a veteran or a person with a disability, so the regulations also require contractors to "invite applicants to voluntarily self-identify" as an individual with a disability or a protected veteran at the pre- and post-offer stage of the hiring process. Contractors must invite applicants to voluntarily self-identify after receiving a job offer. OFCCP has stated that it will provide the specific forms to be used in soliciting this information.
I have to admit, I don't know how the OFCCP can legally require contractors to ask a person if they have a disability when the Americans with Disabilities Act says that an employer may not "make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability," and OFCCP's own internal enforcement policy states that "if you are an applicant for DOL employment, the Department cannot ask you if you are disabled or ask about the nature or severity of your disability."
I suspect that's why contractors are being directed to use the form provided by the OFCCP. It will have been vetted by dozens of government attorneys from different agencies to make sure it walks a fine line that the government feels is legal.
There are other parts to the new regulations, and I'm sure that there will be seminars, webcasts and conference calls galore with law firms and associations trying to help educate contractors on their new responsibilities.
HR executives are going to have to focus on two key issues: First, ensuring your recruiters and hiring managers collect and use information on a candidate's or employee's veteran or disability status only as permitted by law will be a challenge. Most have been trained to never ask whether a person has a disability; now they're required to ask if the person would like to self-identify. This may be a distinction the lawyers can articulate, but not most managers.
Second, you'll need to figure out how to store the information you gather. Has your HRIS vendor prepared for this new data-collection requirement? Will you have the budget necessary to modify your systems? How difficult will it be to modify your systems?
And for those HR executives who are secretly gleeful because they don't work for federal contractors, take a few minutes to read the Department of Labor's most recent regulatory agenda. (It's only 67 pages.)
Susan R. Meisinger, former president and CEO of the Society for Human Resource Management, is an author, speaker and consultant on human resource management. She is on the board of directors of the National Academy of Human Resources.