LOGO DC METRO BUSINESS LEADERSHIP NETWORK DC Metro BLN 2012.

LOGO

•DC METRO BUSINESS LEADERSHIP NETWORK

•DC Metro BLN

•2012

© 2012 Jackson Lewis LLP 2

DC METRO BLN AGENDA MARCH 7 ,2012

BEYOND COMPLIANCE TO

EMPLOYER OF CHOICE

Featuring JacksonLewis

OFCCP

DIRECTEMPLOYERS

PANELISTS from: SAIC, BOOZ ALLEN, Northrop Grumman


WHAT IS THE DC METRO BLN?

BUSINESS DRIVEN- BUSINESS FOCUSED

Meeting HR D&I professionals needs for

disability as a diversity and compliance

strategy

Monthly professional programs (HRCI

accredited)

Bi-monthly newsletter with timely &

relevant information

Interactive web B2B member networking

Social networking for idea exchange

Quarterly networking breakfasts


Why You Should Join

Join forward-thinking DC Metro

employers Enjoy B2B networking

Engage with like-minded businesses

Safe harbor Q&A opportunities

Learn about peer journeys toward inclusion

Become an employer of choice with disability

certification program

Successfully address disability compliance

Attract & retain talent

Attract & retain new clients

Community recognition

OFCCP’s Proposed Section 503 Regulations:Top 10 Takeaways for Federal Contractors

March 7, 2012

Jackson Lewis, LLPwww.jacksonlewis.com

Jackson Lewis LLP

presents

for the DC MetroBusiness Leadership Network

Matthew J. [email protected]

Kevin D. [email protected]

http://www.jacksonlewis.com/

mailto:[email protected]





ABOUT JACKSON LEWIS LLP

Jackson Lewis LLP is dedicated to representing

management exclusively in workplace law and related

litigation. With nearly 50 offices and more than 650

attorneys nationwide, the firm has a national

perspective and sensitivity to the nuances of regional

business environments.

Guided by the principle that a positive work

environment results in enhanced morale and increased

productivity, the firm devotes a significant portion of its

practice to management education and preventive

programs. This approach helps limit exposure to

grievances, charges and lawsuits.

www.jacksonlewis.com


ABOUT THE AFFIRMATIVE PRACTICE GROUP

We have unparalleled experience preparing AAPs and

defending them before the OFCCP in all industries and

areas of the country. Our diverse team of 35 attorneys,

analysts, statisticians, and support staff prepares

approximately 2,500 AAPs a year.

Since 2009, we have defended over 250 OFCCP audits,

including successful defense of Corporate Management

(“Glass Ceiling”) Compliance Evaluations. As a law firm,

we offer more than consulting services, we offer

strategic thinking and sophisticated legal

representation.


1. ANNUALLY CONDUCT A UTILIZATION ANALYSIS USING A 7% NATIONAL STANDARD

Requirement

Contractors must establish a utilization goal of 7%

for persons with disabilities for all jobs groups.

Considerations

Contractors must set a hiring goal of 7% for every

job group rather than a single 7% goal for the

workforce as a whole. This may be more difficult in

some job groups than in others.


2. ANNUALLY COLLECT APPLICANT/HIRE DATA

Requirement

Contractors must collect the following data:• total number of applicants;

• number of applicants known to be individuals with

disabilities;

• number of job openings and jobs filled; and

• number of hired persons known to be individuals with

disabilities.

Considerations

This will allow OFCCP to conduct adverse impact

analyses based on disability status.• Unexplained, statistically-significant disparities in

selection rates could lead to allegations of discrimination

and demands for back pay with interest, along with

preferential hiring mandates.


3. RETAIN APPLICANT/HIRE DATA

Requirement

Contractors must maintain applicant and hire data

for five years.

Considerations

Retention time for all other records pursuant to E.O.

11246 is two years. As a practical matter,

contractors likely will retain all records for five

years.


4. ANNUALLY REVIEW PERSONNEL PROCESSES AND PHYSICAL/MENTAL QUALIFICATIONS FOR EVERY JOB

Requirement

Contractors must annually review personnel

processes and physical/mental qualifications for

every job

Considerations

This will require significant amounts of time and

energy – how can this be accomplished most

efficiently while still satisfying the regulatory

requirement?


5. FOLLOW MANDATORY STEPS FOR OUTREACH AND RECRUITMENT

Requirement

Contractors must undertake additional outreach by:

• Listing all openings with the employment delivery

service/One-Stop (DOL Website)

• Entering into at least three (3) linkage

agreements, some of which are specifically

mandated by the regulations

Considerations

While the requirement that contractors list openings

with state job services is not new, now is a good time

to consider how this obligation is currently satisfied

(i.e., internally, third-party, etc.)

Where will this function reside? Talent acquisition,

compliance, human resources?


6. REVIEW OF EFFECTIVENESS OF OUTREACH EFFORTS

Requirement

Contractors must annually review the effectiveness of

recruitment and outreach efforts, including:

• a written conclusion as to which efforts were successful;

and

• steps to improve the effectiveness of unsuccessful

efforts.

Considerations

Again, now is a good time to monitor the activities of

third-party vendors.

Really crystallizes the need for personal relationships

with diversity outreach partners.


7. INVITE APPLICANTS TO SELF-IDENTIFY

Requirement

Contractors must invite applicants to voluntarily

self-identify as a person with a disability both pre-

offer and post-offer using mandatory language

provided by OFCCP.

Considerations

The invitation to self-identify as a person with a

disability only includes an option to identify

affirmatively as a person with a disability. A lack of

alternatives may skew responses towards

inaccurate self-identification as a person with a

disability.

Anticipate underreporting due to the highly

legalistic definition of “disability” and the fear of

stigma for identifying as a person with a disability.


8. ANNUALLY SURVEY EMPLOYEES RE: DISABILITY STATUS

Requirement

Contractors must annually resurvey employees,

giving them the opportunity to voluntarily and

anonymously self-identify as a person with a

disability (i.e., if they became disabled during the

past year).

Considerations

We are not sure how the anonymous self-

identification will help achieve objectives.

Contractors won’t necessarily know what it is they

are doing well or what requires improvement.

Resurvey will not help contractors determine if

individuals with disabilities are underutilized since

responses are anonymous (e.g., which job group

employees belong to).


9. DEVELOP WRITTEN PROCEDURES FOR REQUESTING REASONABLE ACCOMMODATIONS

Requirement

Contractors must develop and implement written

procedures for reasonable accommodation requests

that must address:

• how to request a reasonable accommodation;

• the timeframe for processing requests; and

• when medical documentation may be sought.

Considerations

Many contractors already have these processes in

place – now is a good time to consolidate and put

these processes into writing.

Supervisors must be trained in and follow these

procedures – no more “casual” accommodations.

If procedures are not followed, is there a basis for

denial of EPLI insurance claim?


10. ADVISE EMPLOYEES OF THEIR RIGHTS SHOULD THEIR REQUEST FOR REASONABLE ACCOMMODATION BE DENIED

Requirement

In the written procedures for requesting reasonable

accommodation, contractors must provide

employees with:

• a written confirmation of their requests;

• If the request is denied, a written copy of the denial,

including the basis for the denial and a notification of

the employee’s right to file a complaint with OFCCP;

and

• the contact information for the responsible official.

Considerations

Language in denial must be carefully worded – really

needs oversight by counsel.


FINAL THOUGHTS

Increased requirements will undoubtedly

make recruitment and employment of

individuals with disabilities a higher

priority. Hopefully, this will lead to a

greater percentage of the labor force

being comprised of individuals with

disabilities.

Major increase in burdens associated

with compliance – is your organization

staffed to handle these burdens?

Likely to result in substantial increase in

litigation – what can your organization

do to mitigate the risk?


QUESTIONS?

Thanks for attending!

If you wish to discuss any aspect of the

proposed regulations in more detail,

please contact:

Matthew J. [email protected]

(631) 247-4639

Kevin D. [email protected]

(804) 212-2888






OFCCP

OFFICE OF FEDERAL CONTRACT

COMPLIANCE

US DEPARTMENT OF LABOR

Claudia Gordon,

Special Assistant to the

Commissioner, Pat Shui


NPRM: Section 503 of the Rehabilitation Act of 1973

Strengthening Employment Protections for Individuals With Disabilities

Wednesday, March 7, 2012

21


Why Revise the Regulations?

Framework unchanged since the 1970’s

BLS data show stark employment disparities:

79% of those with disabilities outside the labor force

30% of those without disabilities out of labor force

Existing framework clearly not working

Revisions intended to increase employment opportunities for individuals with disabilities


22


NPRM Overview

Incorporate changes necessitated by the

ADA Amendments Act of 2008

Require annual review of personnel processes

Require outreach & recruitment measures

Mandate job listing requirements


23


NPRM Overview (2)

Modify invitation to self-identify

Establish a national utilization goal

Require written reasonable accommodation procedures

Require increased data collection

Modify compliance evaluation procedures


24


Necessitated by the ADAAA

ADAAA applies equally to Section 503.

ADAAA primarily broadens the definition of “disability;” became effective January 1, 2009.

NPRM revisions consistent with amended EEOC regulations.


25


Annual Review of Personnel Processes

• Mandate previously recommended steps contractors must take to review their personnel processes, and to review physical and mental job qualifications

• Review and its results must be documented

• Reviews must take place annually rather than periodically


26


Mandatory Outreach/Recruitment Efforts

• Proposes requiring that contractors:

• List all openings with the employment

delivery service/One-Stop;

• Enter into at least 3 linkage agreements;

• Annually review effectiveness of

recruitment efforts; and

• Document this review

Records must be kept for 5 years


27


Invitation to Voluntarily Self-Identify

Proposes both pre-offer & post-offer invitations AND

Annual anonymous resurvey of employees

OFCCP will mandate text of contractor invitations

Will provide much needed data to evaluate workplace practices


28


Establishment of a National Utilization Goal

National utilization goal of 7% for each job group in workforce

Based on limited American Community Survey (ACS) labor force & discouraged worker data

Goal is neither a quota nor a ceiling

An important tool: “What gets measured gets done”


29


Written Reasonable Accommodation Procedures

• Proposes contractors develop and implement

written procedures for accommodation requests.

• Procedures must be in AAP and contain specific

elements, including:

• How to request reasonable accommodation;

• Written confirmation of RA requests;

• Timeframe for processing RA requests;

• When medical documentation may be sought;

• Denials in writing, including the basis for denial; and

• Responsible official and contact information


30


Increased Data Collection

Proposes contractor document & maintain specific data computations, including :

The ratio of jobs filled to job openings;

The ratio of applicants with disabilities to all applicants;

The total number of applicants hired; and

The ratio of individuals with disabilities hired to all hires.

Records must be kept for 5 years Wednesday, March 7, 2012

31


Compliance Evaluation Procedures

Proposes revisions to compliance evaluation procedures:

Contractors must provide records in any available format that OFCCP requests;

Allows access to records for compliance checks & focused reviews onsite OR offsite at OFCCP’s discretion; and

Adds a pre-award compliance evaluation to make Section 503 consistent with EO 11246


32


Comments

• The public comment period ended on February 21,

2012.

• OFCCP received a total of 413 comments.

• What does OFCCP do with the comments it receives?

• Reviews and analyzes

• Comments assist OFCCP in

developing Final Rule on Section

503, which will make permanent

changes to the regulations


33


QUESTIONS?


34


• DIRECTEMPLOYERS

• JULIE COOK

• Slide one• Slide one

LOGO DC METRO BUSINESS LEADERSHIP NETWORK DC Metro BLN 2012.

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Transcript of LOGO DC METRO BUSINESS LEADERSHIP NETWORK DC Metro BLN 2012.