SECTION 503 REVISED RULE: CRP OPPORTUNITIES AND RESPONSIBILITIES

1. SECTION 503 REVISED RULE: CRP OPPORTUNITIES AND RESPONSIBILITIES Presented By:Robert “Bobby” Silverstein, JD

2. INTRODUCTION • Advance Notice of Proposed Rulemaking (July 23, 2010) • Notice of Proposed Rulemaking—(December 9, 2011) • Final Rulemaking (September 24, 2013)

3. INTRODUCTION • Statement by Secretary of Labor • Statement by Director of OFCCP • Statement by Assistant Secretary, ODEP

4. OFFICIAL INFORMATION • OFCCP Sources • Final rule in Federal Register • Fact sheet • Frequently asked questions • Chart of changes

5. INTRODUCTION • Need for the revisions to Section 503 regulation • Policy framework in place since the 1970’s • Still significantly higher unemployment rate for individuals with disabilities • Still significantly lower labor force participation rate • Strengtheningthe regulations important means of reducing disparities

6. INTRODUCTION • PURPOSE OF FINAL RULE • Provide contractors with tools to evaluate compliance • Proactively identify and correct deficiencies • Assist contractors in averting potentially expensive violation findings by OFCCP

7. INTRODUCTION • Highlights • Strengthens the affirmative action provisions in order to create greater accountability and measure effectiveness • Establishes a utilization goal • Requires invitations to self-identify • Requires self-assessment re outreach and recruitment efforts • Requires data collection pertaining to applicants and hires with disabilities

8. INTRODUCTION • Effective Date March 24, 2014 • Phase-in of full compliance • New contractors submit AAP within 120 days of commencement of contract

9. ORGANIZATION OF PRESENTATION Specifically, the following topics will be discussed: • ADAAA Updates and Other Definitions • Prohibitions Against Discrimination • Purpose; Applicability • Invitation to Self-Identify • Workforce Utilization Goals and Annual Evaluation • Data Collection • Outreach and Recruitment • AbilityOne and Sheltered Workshops • Auditing and Reporting Systems and Recordkeeping

10. Specifically, the following topics will be discussed): • Policy Statement • Review of Personnel Processes • Physical and Mental Qualifications • Reasonable Accommodation Policy and Procedures • Internal Communication • Responsibility for Implementation • Training • Equal Opportunity Clause • Availability of Affirmative Action Program • Voluntary Affirmative Action

11. ADAAA-DEFINITION OF DISABILITY • Definition of disability used in Section 503 regulation modified to reflect definition of disability used in ADA, as amended • Term “disability” replaces the term “individual with disability” • Retains 3-prongs of definition • Definition construed in favor of broad coverage

12. OTHER DEFINITIONS • Contractor • Prime contractor • Subcontractor • Government contract • Contracting agency

13. DISCRIMINATION • Retains prohibitions against discrimination with minor modifications • Clarifies reasonable accommodation obligation extends to use of electronic and online job application systems • Clarifies that persons without disabilities cannot make claims of discrimination under Section 503

14. PURPOSE OF AFFIRMATIVE ACTION PROGRAM; APPLICABILITY • Explains general expectations • “Management tool” • “Institutionalizes commitment to equality of opportunity” • “More than a paperwork exercise” • “Dynamic in nature” • “Includes measurable objectives, quantitative analyses, and internal auditing and reporting systems” that measure progress • Applicability

15. INVITATION TO SELF-IDENTIFY • Significant, substantive changes • Pre-offer Invitation • Rationale for new requirement • Relationship to ADA • EO 11246 Internet Applicant Rule

16. INVITATION TO SELF-IDENTIFY • Post-Offer Invitation • Invitation to Employees

17. INVITATION TO SELF-IDENTIFY • Contractors may not compel or coerce individuals to self-identify • Contractors may identify applicants and employees with known or obvious disabilities. • Information on self-identification must be kept confidential and maintained in a data analysis file, not in the individual’s medical files

18. UTILIZATION GOALS AND ANNUAL EVALUATION • National utilization goal of 7 percent • Purpose of utilization goal—benchmark to measure progress • Not a rigid and inflexible quota • Not a ceiling or a floor • American Community Survey • Despite limitations, still best source of nationwide disability data available today

19. UTILIZATION GOALS AND ANNUAL EVALUATION • Consideration of Alternative Approaches • Mirror precisely the goals framework for minorities and women under EO 11246 • National goal for all jobs in all geographic areas more viable approach

20. UTILIZATION GOALS AND ANNUAL EVALUATION • Rationale for setting the National Goal at 7% • Estimate of the percentage of the civilian labor force that has disability • Takes into account “discouraged worker effect”

21. UTILIZATION GOALS AND ANNUAL EVALUATION • Conduct annual evaluation • Identify problem areas • Develop and execute action-oriented programs

22. UTILIZATION GOALS AND ANNUAL EVALUATION • Failure to attain goal not a finding or admission of discrimination • Goals not used as “quota” or “ceiling”

23. DATA COLLECTION • Requires contractor to document several computations or comparisons pertaining to applicants and hires • Data collected on an annual basis and documents maintained for a period of three years • Data includes information regarding applicants and applicants hired (with and without disabilities)

24. OUTREACH AND POSITIVE RECRUITMENT • Required—undertake appropriate and positive recruitment activities • Scope of efforts depend on: • totality of circumstances, including size and resources • adequacy of existing practices. • Notice to subcontractors

25. OUTREACH AND POSITIVE RECRUITMENT • Examples—enlisting the assistance and support of persons and organizations: • State VR, DD, and/or mental health agencies • America’s Job Centers • VA Regional Office • EARN • ENs • Local disability organizations, including CRPs • Career offices of educational institutions • Private recruitment sources

26. OUTREACH AND POSITIVE RECRUITMENT • Examples of actions to fulfill commitment: • Formal briefing sessions at establishment • Special efforts to reach students with disabilities at educational institutions • Work-study, internships, job-shadowing programs • Career days, youth motivation programs • Attract individuals not currently in the workforce • Consider applicants with known disabilities for all available positions

27. OUTREACH AND POSITIVE RECRUITMENT • Self-assessment of external outreach and recruitment efforts • Annual assessment • Documentation required • Conclusions reached • Implementation of alternative efforts if initial efforts ineffective • Recordkeeping obligation

28. ABILITYONE AND SHELTERED WORKSHOPS • Commenter requested that AbilityOne contractors be exempt from utilization goal requirement • OFCCP rejected request • Final rule applies not just to direct labor • Final rule applies to entirety of contractor’s workforce and entirety of subcontractors’ workforces

29. ABILITYONE AND SHELTERED WORKSHOPS • OFCCP explanations regarding the utilization goal requirement and: • Contractor relationships with sheltered workshops • Contractor established sheltered workshops • Training at sheltered workshops • Prohibiting contractors from using sheltered workshops

30. AUDITING AND REPORTING SYSTEM AND RECORDKEEPING • Adds provision clarifying that the new recordkeeping requirements must be maintained for three years • Recordkeeping also applies to the new provision requiring the contractor to document actions to comply with audit and reporting system

31. POLICY STATEMENT • Replaces the provision that the policy statement “SHOULD indicate the chief executive officer’s attitude on the subject matter” with the requirement that “the policy statement SHALL…” • Specifies topics to be addressed in the policy statement • Requires accessible notice

32. REVIEW OF PERSONNEL PROCESSES • Prescribes careful, thorough, and systemic review of personnel processes • Provide for periodic review • Ensures equal access to information and communication technology through reasonable accommodation • Contractors encouraged to make ICT accessible

33. PHYSICAL OR MENTAL QUALIFICATIONS • Schedule review of physical and mental job standards • Use of direct threat defense

34. REASONABLE ACCOMMODATION POLICY AND PROCEDURES • Best practice–develop and implement written procedures for processing requests. • Reasonable accommodation obligation and use of electronic or online job application systems

35. EQUAL OPPORTUNITY CLAUSE • Adds requirement to post notices in electronic format • Adds affirmation in solicitations and advertisements that it is an EEO employer • Prescribes reference to Section 503 regulation in contract

36. AVAILABILITY OF AFFIRMATIVE ACTION PROGRAM • Availability of full affirmative action program to any employee or applicant • Exception for required data metrics • Post location and hours.

37. INTERNAL COMMUNICATIONS • Include affirmative action policy in policy manual or otherwise make available • If party to a collective bargaining agreement, notify union officials and/or employee representatives • Document activities and retain records

38. RESPONSIBILITY FOR IMPLEMENTATION • Official assigned responsibility for implementation • Identity should appear on all internal and external communications • Individual given necessary senior management support and staff to manage implementation.

39. TRAINING • Personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained

40. VOLUNTARY AFFIRMATIVE ACTION PROGRAMS • The contractor is permitted to develop and implement voluntary affirmative action programs for individuals with disabilities to increase training and employment opportunities

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