U.S. employers Federal government contractors and subcontractors will be required to set a hiring goal of having 7 percent of their workforces be people with disabilities, among other requirements if tightened regulations proposed by the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) is finalized as proposed on December 9. The proposed regulation would raise the target for hiring of disabled workers by government contractors to an unprecedented high. Coupled with other enforcement and regulatory activism by the Administration, the proposal highlights the need for government contractors as well as other U.S. businesses to guard against rising discrimination law exposures.
Employers that are government contractors should review the proposed regulations to determine its anticipated effect. Employers concerned about the proposed tightening of hiring standards or other provisions of the proposed regulation also should consider commenting on the proposed regulation. Meanwhile, all employers should heed the proposed regulation as yet another sign of the heightening of their exposures and responsibilities to disabled and other workers protected by federal discrimination laws under the Obama Administration.
Tighter Disability Discrimination Rules Proposed For Government Contractors
OFCCP’s proposed rule would raise the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 obligating federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities.
The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination — similar to those that have long been required to promote workplace equality for women and minorities. In addition, the rule would clarify OFCCP’s expectations for contractors by providing specific guidance on how to comply with the law.
Among other things, the proposed rule would:
- Set a 7 percent hiring goal for the employment of individuals with disabilities, the highest level ever;
- Required enhanced documentation and recordkeeping of requests and processing of requests for reasonable accommodation and other matters;
- Ensure annual self-reviews of employers’ recruitment and outreach efforts; and
- Add a new requirement for contractors to list job openings to increase their pools of qualified applicants.
These new rules would expand already significant nondiscrimination, affirmative action and recordkeeping requirements applicable to government contractors. The expansion of these rules comes as the reach of federal employment discrimination laws has been expanded to a significant number of employers not historically covered by these requirements due to participation in Stimulus Bill or other government funded programs which with broader than historically applicable affirmative action requirements.
Meanwhile, enforcing federal discrimination laws is a high priority of the Obama Administration. The Departments of Labor, Health & Human Services, Education, Justice, Housing & Urban Development, and others all have both increased enforcement, audits and public outreach, as well as have sought or are proposing tighter regulations.
The expanding applicability of nondiscrimination rules coupled with the wave of new policies and regulatory and enforcement actions should alert private businesses and state and local government agencies of the need to exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges under employment and a broad range of other laws.
Government contactors and subcontractors as well as other employers should review these rules to assess their potential impact, as well as evaluate the adequacy of already existing practices and documentation with discrimination and other laws.
All organizations, public or private, government contractor or not, should act to ensure both that their organizations, their policies, and people in form and in action understand and comply with current federal nondiscrimination laws and that these compliance activities are well-documented to help defend against potential charges or other challenges. Because of changing regulatory and enforcement trends, organizations and their leaders should avoid assuming the adequacy of current compliance and risk management. Most organization should reevaluate their assessments concerning whether their organization is a federal government contractor or subcontractor to minimize the risk of overlooking critical obligations.
Many organizations need to update their understanding, policies and practices in light of tightening rules and enforcement. The scope and applicability of federal nondiscrimination and other laws have been expanded or modified in recent years by the differences in perspectives of the Obama Administration from the Bush Administration, as well as statutory, regulatory, judicial precedent and enforcement changes. In addition, all organization should conduct well-documented periodic training and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.
For Help With Compliance & Risk Management and Defense
If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
- Group Health Plans & Insurer To Get More Time To Meet Affordable Care Act Summary of Benefits and Coverage Requirements
- CMS Final Medicare Rule Imposes Many Conditions On Access To Medicare Claims Data To Evaluate Providers & Suppliers
- OSHA Updates Safety Resources To Prevent Construction, Other “Top 10″ Exposures
- OSHA Silo Safety Citations Heads Up To Grain Operators To Manage Safety
- OSHA Updates Safety Resources To Prevent Construction, Other “Top 10″ Exposures
- EBSA Releases Collection of New M-1 and Other Guidance Impacting Multiple Employer Welfare Plans
- New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices
- Incentives To Get Employee Into Wellness Education Requires Legal Risk Management
- HR Key Player In Managing Rising Risk of Disability, Other Discrimination Suits Under Obama Administration Justice Department
- HHS Chides Insurer For “Excessive” Premium Increases After Affordable Care Act Rate Audit
- IRS U-Tube Video Discusses 2012 Flexible Benefit Plan Rule Change
- Employers Considering Using New IRS Voluntary Worker Classification Settlement Program To Resolve Payroll Tax Risks Must Also Manage Other Legal Exposures
- Participant Notification Added To Required Procedures For Church Plan Determination Letter Requests
- HHS Credits Affordable Care Act Adult Dependent Child Coverage Rule With Getting 1 Million Young Adults Health Coverage
- 2010 Webcast Series on Federal Employer Employment of Persons With Disabilities Planned
- EBSA Plans To Include Health Care Reform Compliance In Health Plan Audits Beginning In FY 2012; Disputes OIG Criticism Of ACA Enforcement Efforts
- New Labor Department Video Tries To Educate Young Workers About Benefits & Benefit Rights
- Employer Assistance and Resource Network Offers Free Webinars For Employers During October In Honor of Disability Employment Awareness Month on Thursdays in October from 2:00 – 2:30 p.m. Eastern Time. Topics will include Employer Preparedness to Include Veterans with Disabilities
- HHS Projects Medicare Advantage Enrollment Will Rise As Premiums Decline In 2012; Plans Face Increased Regulation & Enforcement
- HHS Credits Health Reform For Getting Health Coverage For Added 1 Million Young Adults
- 4th Circuit Rejects Two Challenges To Affordable Care Act Constitutionality
- Stamer Named Fellow In American College of Employee Benefits Counsel
- ABA TIPS Section Appoints Cynthia Marcotte Stamer Vice Chair of Employee Benefits General Committee
- Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures In 2012
- Company Executives, Plan Sponsors & Others May Face Personal Liability When Others Defraud Plans or Mismanage Employee Benefit Plan Responsibilities
- EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act: Employers Should Manage Risks
- Employer Charged With Misclassifying & Underpaying Workers To Pay $754,578 FLSA Back pay Settlement
- HHS Imposes 1st HIPAA Privacy Civil Penalty of $4.3 Million
- NLRB Settlement Shows Care Necessary When Employers Use Social Networking & Other Policies Restricting Employee Communications
- Wage & Hour Law Settlements Highlight Rising Wage & Hour Risks of U.S. Employers
- OCR Requires Rhode Island DHS To Provide Translation, Other Services For Limited English, Other Language Impaired Accommodations
About Solutions Law Press
Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com.
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©2011 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press. All other rights reserved.