Preparing for the new Sections 503 and 4212: What should members focus on Nita Beecher Employment...

Preparing for the new Sections 503 and 4212:What should members focus on

Nita BeecherEmployment Law & Litigation Group

October 5, 2012

2MERCER

Overview of new Sections 503 and 4212

• Definitional Changes

• Workforce Composition Goals / Benchmarks

• Self-identification Early & Often

• Outreach, Outreach, Outreach

• New Reasonable Accommodation Process

• Data Collection, Analysis & Recordkeeping

• Transparency and Accountability

• Training

• Annual Report

• Priority Consideration

3MERCER

Definitional changes

Section 503 / Disability

Adopts ADAAA definitions

►disability

►major life activities

►physical or mental impairment

►regarded as

►substantially limits

►record of such an impairment

►direct threat

►mitigating measures

Section 4212 / Veterans

• VEVRAA >>>“Section 4212”

► Covered veteran >>> “protected

veteran”

► Other protected veteran >>>

“active duty wartime or campaign

badge veteran”

►Vets 100/100A categories not

changed

4MERCER

Benchmarks & Workforce Composition Goals


Workforce composition goal

►not hiring goal

►Single, nationwide utilization goal

►7%

►in each job group

►Possible 2% sub-goal for individuals with more significant disabilities


Goal established by contractor considering:►% vets in civilian labor force►# vets who participated in

ESDS/Department of Veterans’ Employment & Training Service►referral, applicant & hiring ratios►effectiveness of contractor's

external outreach & recruitment efforts

►any other factors affectingavailability of qualified protectedveterans

5MERCER

Self-Identification (Early and Often)


►Pre-offer

►Post-offer

►Annual survey of employees

►Note: 7% workforcecomposition goal is onlyobtainable IF applicants/employees withdisabilities are willing to self-identify-will they?


►Pre-offer

►Post offer

6MERCER

Outreach, Outreach, Outreach


Must provide job vacancy information to the appropriate ESDS “in the manner required by the service”

►Must provide information re: staffing or temp agencies used

►Cannot rely on 3rd party to do it correctly

Linkage agreements

►1 Stop Career Center

►State Voc Rehab Service Agency

►National Resource Directory

►One more from list


Same PLUS:

►Must specifically request priority referrals of protected veterans job openings

• Linkage agreements

►Local Vets Rep

►National Resource Directory

►One more from list

7MERCER

Specific Reasonable Accommodation Process


Written accommodation policy w/specific elements

All reasonable accommodation requests must be processed within 10 business days (if no supporting medical documentation)

► If medical documentation / or if special equipment must be ordered not exceed 30 days, absent extenuating circumstances

Any denial or refusal to provide a reasonable accommodation must be provided IN WRITING

Rest same as 4212

Section 4212 / VeteransRationale for rejections and information

regarding accommodations:►Written reasons for each decision

to reject for hire, promotion or training

►Description of accommodations• considered for rejection• provided for disabled vets

selected for hire, promotion or training

Must seek advice of applicants regarding accommodations, when applicableIf undue hardship, disabled vet may

cover cost of the accommodation

8MERCER

Data Collection, Analysis & Recordkeeping Obligations


Must maintain quantitative measurements & comparisons for persons w/ disabilities:

►referrals w/ disabilities from ESDS & other linkage entities/ referrals applicant ratio: apps w/ disabilities to total applicants

►hiring ratio: hires w/ disabilities to total hires

►job fill ratio of openings to filled openings

For “direct threat” – a statement of the reasons supporting the belief of the direct threat

Maintain records for 5 years


Must maintain similar quantitative measurements & comparisons for vets:

►priority referrals of vets /all referrals from ESDS

►applicant ratio: vet apps/ total applicants

►hiring ratio: vet hires / total hires

►job fill ratio - same

For “direct threat” – same

Maintain records- same

9MERCER

Transparency & Accountability

Section 503 / DisabilityEO Clause verbatim in subcontracts &

purchase orders► Very long; impractical

Retain records for 5 yearsSend written notification of AA policies

& efforts to subcontractors, including vendors & suppliers, to request compliance by them

ID official responsible for contractor’s affirmative action activities on ALL internal and external communications re: affirmative action

CEO must publicly & personally support contractor’s affirmative action obligations

Post notice for employees working offsite


• Same

10MERCER

More Training, More Sensitivity


Contractors would be required to ANNUALLY provide training to all supervisors and managers on the accommodation procedures

► Most onerous training obligation of state or federal EEO laws

Must provide ADDITIONAL training to all personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes on

► The benefits of employing individuals with disabilities

► Appropriate sensitivity toward applicants employees with disabilities, and

► The legal responsibilities of contractor and its agents regarding individuals with disabilities

Must record who attended; keep 5 years


• No mention of supervisor/manager

training on accommodation

procedures

• All other training requirements are the

same, but for veterans

11MERCER

Annual Report & Priority Consideration


Required to submit

► annual report containing measurements and computations

► % applicants, new hires, & total workforce who are individuals with disabilities for each EEO-1 category

► even if not selected for audit

OFCCP encouragement to voluntarily develop & implement programs

► priority consideration in recruitment and/or hiring

Unclear whether such preference programs would be lawful

► OFCCP cites no legal authority


• No change

• Still required to submit VETS 100/100A

• Local employment service offices already give priority referral to protected veterans for jobs listed by a Federal contractor

• OFCCP will now expect/ measure hiring from priority referrals

12MERCER

Sample of current OFCCP vets/disabled requests

Veterans• State job postings during review• 3 years VETS-100/VETS-100A

reports• Self-id forms• Executed contracts/purchase

orders with correct language• Posting where employees can view

AAP• Invitation to vets to self-id and

posting• List of employees self identifying as

vets• List of applicants id’d as vets,

whose hired and if not why not

Disabled • Leave and accommodation policies• Job descriptions with medical and

physical requirements• Info on review of medical and

physical requirements• Employees or applicants denied

promotion or hire due to medical or physical job requirements

• Onllne accessibility• Accommodation request list (name,

date of hire, request, granted and if not why not

• Disability leave list • Maternity leave list • Disabled applicant list

Preparing for the new Sections 503 and 4212: What should members focus on Nita Beecher Employment...

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