Government Contractors To Face Hiring “Targets” for Vets & Disabled Under Impending Rules.

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 and hiring goals for veterans, among other requirements when the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) moves forward in upcoming weeks to finalize proposed changes to OFCCP regulations originally proposed on December 9.  Coupled with other enforcement and regulatory activism by the Administration, the plan announced today by Vice President Biden to move forward to finalize the new hiring target requirements will further heighten the need for government contractors as well as other U.S. businesses to guard against rising disability, veterans and other 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 & Veterans Discrimination Rules For Government Contractors Coming

According to today’s announcement by Vice President Biden, the Administration plans to finalize a new Department of Labor Office of Federal Contract Compliance Programs (OFCCP) VEVRAA Rule and Rehabilitation Act Rule  in the Federal Register “soon” and will take effect 180 days after publication.   The action will finalize plans to adopt these rules that the Administration previously announced last December, reported on by Solutions Law Press, Inc. in DOL Plans To Tighten Employment Protections For Disabled Veterans & Other Disabled Employees Signals Need For Businesses To Tighten Defenses.

The new OFCCP’s rules will raise the affirmative action requirements for federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities and veterans.

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.

Specifically, the two new rules for the first time require federal government contractors to establish “hiring benchmarks” that the Administration intends to use to provide “real accountability” by measuring federal contractors’ progress toward achieving equal opportunity for people with disabilities and protected veterans.

  • The VEVRAA rule requires contractors to establish an annual hiring benchmark, either based on the national percentage of veterans in the workforce (currently 8%), or based on the best available data and factors unique to their establishments.
  • The Section 503 rule establishes an aspirational 7% utilization goal for the employment of individuals with disabilities.

Since taking office, the Obama Administration already has stepped up enforcement and oversight of federal laws prohibiting discrimination against veterans and individuals with disabilities.  The new requirements for benchmarking and reporting required by these new rules will make it easier for OFCCP to identify and target for audit or enforcement government contractors whose lower statistical hiring of veterans and other disabled workers.  Since government contractors and subcontractors can expect greater exposure to contract and compliance audits, enforcement and other risks to rise when the new rules take effect,  all government contractors and subcontractors are encouraged to evaluate their current and historical hiring practices and compliance in light of these new rules and begin preparing their strategy for both commenting on the anticipated rules, and minimizing potential risks and exposures within the scope of attorney client privilege.

Among other things, the proposed rule would:

  • Set a 7 percent hiring goal for the employment of individuals with disabilities, the highest level ever;
  • Require enhanced documentation and recordkeeping of requests and processing of requests for reasonable accommodation and other matters;
  • Provide for 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 expanded to include many 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.  Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks.

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 protecting the disabled, veterans, and others.  See, e.g. New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices; HR Key Player In Managing Rising Risk of Disability, Other Discrimination Suits Under Obama Administration Justice Department;  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; 4/19 Deadline For Comments On Proposed Rules For Selecting State Employment Service Delivery Systems Providers For Veterans; Justice Department Charges Employer, Pension Plan With Violating USERRA Reemployment Rights; Tighten Employment Disability Risk Management As Obama Declares 12/10 National Disability Employment Awareness Month; Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Worker’s; Obama’s Reaffirms Commitment Prosecute Disability Discrimination To Mark Omlstead Anniversary.

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.

Business Should Get Serious About Discrimination Risk Management

Government contractors 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 with the help of qualified legal counsel experienced with advising government contractors and other businesses about these and related non-discrimination rules within the scope of attorney-client privilege.

In anticipation of these activities,  these and other employers may want to participate in one of the following “introductory webinars” on the new rules this week (with repeats in September) to provide overviews of the key points of the rules

  • OFCCP Webinars on the VEVRAA Final Rule on August 29, 2013 at 2:00 p.m. (Eastern) – Register or September 11, 2013 at 2:00 p.m. (Eastern) – Register; and
  • OFCCP Webinars on the Section 503 Final on August 30, 2013 at 2:00 p.m. (Eastern) – Register or September 18, 2013 at 2:00 p.m. (Eastern) – Register.

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 about 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 has grown and evolved 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, re-engineering, 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 reach other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Resources

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:

About Solutions Law Press

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©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

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