AAAA Comments on the OFCCP's Proposed Sec. 503 Regulations

As the Section 503 comment period came to a close nearly all organizations that commented on the proposed changes commended the DOL and the OFCCP for trying to find viable employment opportunities for individuals with disabilities. However, an equal number of commenters also expressed major concerns regarding the OFCCP’s calculations. One of the largest independent associations, The American Association for Affirmative Action (AAAA), also expressed concern and recently summarized their comments on their blog (quoted below).

Source: http://affirmact.blogspot.com/2012/02/aaaa-comments-on-ofccps-proposed-sec.html

“The American Association for Affirmative Action (AAAA) submitted comments to the Department of Labor, OFCCP regarding its proposed regulations related to Section 503 of the Rehabilitation Act of 1973, as amended. The Association applauded OFCCP’s efforts to remove barriers to those in the disabled community and strengthen employment opportunities for individuals with disabilities and agreed that one of the primary tools for effectuating change in private employment is through the affirmative action obligations affecting government contractors and subcontractors. This has been the intent behind Section of 503 of the Rehabilitation Act of 1973 and its implementing regulations since their inception. We also agreed that the regulations, in their current form, do not seem to have produced significant, measurable improvement in employment opportunities for disabled individuals. Moreover, on a purely practical level, the regulations need to be updated to reflect the ADA Amendments Act.  

Despite the Association’s agreement with the principles supporting OFCCP’s efforts, AAAA has serious concerns with the revised regulations as proposed. Most importantly, AAAA fears that in its efforts to strengthen the regulations governing affirmative action for individuals with disabilities, the Agency will be viewed as overreaching. AAAA also believes that OFCCP has grossly underestimated the time and resources that the contractor community would need to dedicate to implementing these changes. Underestimating the burden associated with these changes will create objections from those in the contractor community who would support OFCCP’s efforts but for this significant, additional burden. 

AAAA provided a detailed examination of various sections of the proposed regulations and, where feasible, offered possible alternatives that address the Association’s concerns. In particular, the association analyzed the burden suggested by the agency and argued that OFCCP had grossly underestimated the time needed to comply with the proposed regulations. In the areas of applicant/employee self-identification, data collection analysis, and the assessment of outreach efforts, the time estimated was far less than the reality would suggest. 

The 7% percent utilization goal, while commendable, raises other questions as well. AAAA questioned how the agency derived the goal and how it plans to implement the requirement. AAAA also does not support sub-goals for certain disabilities in light of the dearth of data to support such goals.”

 Source: http://affirmact.blogspot.com/2012/02/aaaa-comments-on-ofccps-proposed-sec.html

VETS 100-100A Special Announcement

Fair Warning - It is the contractor's responsibility to retain filed VETS 100/100A reports (not the DOL’s) for two (2) years!

Special Announcement: 

2011 VETS 100 Filing Cycle

Due to the unavailability of the VETS 100 System, contractors may still file. Contractors must first download the VETS 100 or VETS 100A form from the VETS website, www.dol.gov/vets/programs/fcp/main.htm, fill out the form and submit electronically to: parker.george@dol.gov.  

Contractors will receive a verification of receipt for their records. These forms will be stored at this location until the VETS 100 System becomes operational. We do not expect the system to be available until July 2012, at which time the VETS 100/100A forms received will be input electronically into the VETS 100 System. 

REMINDER: In accordance with 41 CFR Parts 61-250 and 61-300, it is the contractor's responsibility to retain filed VETS 100/100A reports for two (2) years! 

Special Announcement: 

Effective immediately, customers are no longer required to request VETS 100/100A Reports via FOIA. 

Due to the unavailability of the VETS 100/100A System, we are unable to provide contractors copies of their 2010/2011 VETS 100 reports. If you are in need of a VETS 100/100A report, download the VETS 100 or VETS 100A form from the VETS website, www.dol.gov/vets/programs/fcp/main.htm, fill out the form and submit electronically to: parker.george@dol.gov. 

If you filed a VETS 100/100A report prior to the ending of the filing cycle and need a copy of your report, send your name, company name, EIN and DUNS number to parker.george@dol.gov and they will locate and send your information. 

REMINDER: In accordance with 41 CFR Parts 61-250 and 61-300, it is the contractor's responsibility to retain filed VETS 100/100A reports for two (2) years!

The President’s 2013 Budget - Expanding Opportunities for People with Disabilities

Below is an excerpt from the President's 2013 Budget showing an emphasis on expanding opportunities for people with disabilities.


Source: http://www.whitehouse.gov/omb/factsheet/expanding-opportunities-for-people-with-disabilities

"We now face a make-or-break moment for the middle class and those trying to reach it. After decades of eroding middle-class security as those at the very top saw their incomes rise as never before and after a historic recession that plunged our economy into a crisis from which we are still fighting to recover, it is time to construct an economy that is built to last. The President’s 2013 Budget is built around the idea that our country does best when everyone gets a fair shot, does their fair share, and plays by the same rules. We must transform our economy from one focused on speculating, spending, and borrowing to one constructed on the solid foundation of educating, innovating, and building. That begins with putting the Nation on a path to living within our means – by cutting wasteful spending, asking all Americans to shoulder their fair share, and making tough choices on some things we cannot afford, while keeping the investments we need to grow the economy and create jobs. The Budget targets scarce federal resources to the areas critical to growing the economy and restoring middle-class security: education and skills for American workers, innovation and manufacturing, clean energy, and infrastructure. The Budget is a blueprint for how we can rebuild an economy where hard work pays off and responsibility is rewarded.

 To expand opportunities for people with disabilities, the 2013 Budget will:

• Increase Funding for the Education of Children with Disabilities.

• Encourage Workforce Innovation to Improve Outcomes for People with Disabilities. 

• Support Workers with Disabilities.

• Reduce Social Security Appeals Hearing Backlog.

• Support Disability Research.

• Provide Housing for Persons with Disabilities.

• Expand Passenger Rail Options.

• Support the Medical Needs of Veterans.

• Improve Effectiveness of Disability Programs.

• Support the Rights of People with Disabilities Internationally; and

• Strengthen Anti-Discrimination Enforcement - Even in tough budget times, the substantial investments that have been made by the Administration to strengthen civil rights enforcement against racial, ethnic, sexual orientation, disability, religious, gender, and gender identity discrimination continue in the 2013 Budget. The Budget proposes an increase for the Community Relations Service in the Department of Justice to fight hate crimes and provides a $14 million, or 4 percent, increase over the 2012 enacted level for the Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing Federal laws that make it illegal to discriminate against a job applicant or an employee. This investment will allow EEOC to add staff to reduce the agency’s backlog of private-sector discrimination charges."

Source: http://www.whitehouse.gov/omb/factsheet/expanding-opportunities-for-people-with-disabilities

Preparing for an OFCCP Audit

Join us for a Webinar on February 29th.

BCGi, the EEO HR training arm of Biddle Consulting Group, will be presenting an important webinar on OFCCP audit preparation. With the ever changing landscape of OFCCP audits, it has become more and more difficult for Federal contractors to understand how to assemble their AAP for audit submittal. It is critical that contractors understand how to reduce their exposure to the OFCCP through legitimate means by analyzing the right data in their AAP and submitting the appropriate information during a desk audit.

Join the BCG consulting team of Fe Ramos and Mike Bostick on February 29th as we navigate the do's and dont's of desk audit submittals.

Space is limited. Reserve your free webinar seat now at:
http://www.bcginstitute.org/events/event_details.asp?id=217021

2013 OFCCP Budget

On Monday, February 13, 2012, DOL released the 2013 DOL Budget information, including detailed budget documentation for the OFCCP.  As evidenced through details of the budget, the OFCCP feels very confident that they will continue to expand their compliance efforts in the areas of Section 503, VEVRAA, construction and Equal Pay.  Highlights to the OFCCP’s proposed budget are found below.

FY 2013

The request for OFCCP is $106,415,000 and 755 FTE (full-time employees) to focus on three strategies:

Strategy One:

Ensuring quality evaluations by compliance officers (while increasing the overall number of evaluations)

• At this funding level, OFCCP will complete 4,530 thorough compliance evaluations - a 12 percent increase over FY 2012 levels.
• To increase the thoroughness and breadth of its investigative efforts, OFCCP continues to use its Active Case Enforcement (ACE) system by requiring OFCCP compliance officers to conduct thorough desk audits of all cases, increase onsite activity, and increase compliance evaluations focused specifically on Sections 503 and VEVRAA compliance. To help address the high level of unemployment among the nation’s veterans and individuals with disabilities, OFCCP will devote considerable resources to ensure that contractors recruit, hire, and retain veterans and individuals with disabilities.
• In 2013, OFCCP anticipates continuing the effort to combat pay discrimination through increasing the number and quality of its investigations of contractor pay practices. Narrowing the persistent pay gap between men and women is a key priority for OFCCP and reflects its commitment to the work of the President’s National Equal Pay Enforcement Task Force. OFCCP will continue to refine its enforcement practices by implementing the guidance and protocols currently under development that are expected to launch in FY 2012, as well as by continuing the agency’s significant training program for compliance officers in compensation enforcement.
• Reflecting OFCCP’s commitment to enforcing the rights of women and under-represented groups in the construction trades, OFCCP will monitor gender, racial and ethnicity-based discrimination in the construction industry. In FY 2013, OFCCP will conduct 450 construction reviews, with particular enforcement efforts directed toward Mega Projects - an 11 percent increase over FY 2012 levels. Mega Projects are defined as federal or federally-assisted construction projects that last longer than one year, and are likely to have a major employment or economic impact on a community.

Strategy Two:

Increasing the technical proficiency of OFCCP staff

• Although OFCCP does not currently possess empirical evidence showing the causal relationship between their proposed strategies and their outcome goals, the agency has begun tracking the quality of its case audits to indicate whether investigations are timely completed and whether quality audit deficiencies decrease over time.
• …OFCCP will focus on identifying deficiencies found in routine quality audits of closed cases as major or technical. This will allow the agency to better inform and prioritize training needs to improve the quality and consistency of compliance evaluations. OFCCP is proposing six continuing education and skills development training courses during FY 2013.
• Eight training courses in support of the agency’s regulatory agenda will be offered in FY 2013. This training will focus on the following regulatory changes and their impact on the compliance evaluation process:

1. Section 503;
2. VEVRAA;
3. construction; and
4. sex discrimination.

Two courses will be offered in each of the aforementioned areas to ensure that all OFCCP personnel are well grounded in substantive program areas.

• Lastly, OFCCP will offer one course aimed at managers. Potential topics include performance management, efficient use of resources, and budget-performance integration.

Strategy Three:

Expanding the knowledge base of workers and federal contractors through education and outreach

• In FY 2013, OFCCP proposes to target its compliance assistance to achieve the greatest impact by:

1. Emphasizing the importance of providing compliance assistance as an integral part of the compliance officer’s enforcement activities;
2. Leveraging existing contractor networks such as Industry Liaison Groups (ILGs) and multi-establishment corporations to promote corporate-wide compliance;
3. Focusing on contractors that largely employ at-risk populations identified through OFCCP enforcement activities;
4. Assisting new and small contractors;
5. Creating synergy between their rulemaking and their training and staff development agendum.

Irrespective of regulatory changes, large Federal Contractors should pay special attention to what the OFCCP refers to as, “Strategic Case Selection.” These potential enterprise-wide investigations will also be a focus in 2013.

“Strategic Case Selection – OFCCP will improve the effectiveness of the way in which the agency conducts compliance evaluations by implementing a strategic case selection process to address programmatic priorities. Under this process, OFCCP will focus its enforcement efforts on a strategic mix of compensation, hiring, VEVRAA, Section 503, and other investigations. Based on the strength of the evidence of a potential violation, the agency will identify priority cases in each of the aforementioned areas and allocate resources accordingly to resolve them.

This process will also be used to identify similar issues that arise within corporations and industries, and to identify potential cases for enterprise-wide investigations. It will also improve the effectiveness of compliance evaluations by ensuring that the agency identifies patterns of violations and non-compliance within a corporation. Enterprise-wide investigations, based on patterns of violations and identification of egregious violators, will enable the OFCCP to remedy deficiencies across an entire corporate structure, rather than one facility at a time. Coupled with a renewed collaborative enforcement approach with the Office of the Solicitor (SOL) and other Departmental agencies, this enforcement strategy will increase the rate of compliance for contractors who engage in egregious violations.”

DETAILED WORKLOAD AND PERFORMANCE – The OFCCP estimates that it will increase the number of Service and Supply audits in FY 2013 but has not asked for additional staff in their budget.  In light of the pending regulatory changes in 2012/2013 and the potential additional steps the OFCCP will be required to take to satisfy their ACE procedures, it will be interesting to see how effective the OFCCP will be in achieving their goal of completing 4,000 audits in 2013.

	FY 2011 Enacted		FY 2012 Enacted	FY 2013 Request
Office of Federal Contract Compliance Programs	Target	Result	Target	Target
Total Number of Compliance Evaluations Completed	3,550	4,014	3,980	4,530
Supply and Service Evaluations Completed	3,225	3,382	3,500	4,000
FAAP Supply and Service Evaluations Completed	50	82	80	80
Number of Construction Evaluations Completed	275	550	400	450
Percent of cases with major deficiencies (Quality Case Audits)	--	--	19.00%	15.00%
Percent of cases with technical deficiencies (Quality Case Audits)	--	--	40.00%	30.00%
Percent of Discrimination Cases Closed within 730 Days of Opening	--	--	55.00%	65.00%

To read the entire budget request and learn more about the strategic directives of the OFCCP, click on the following link:
http://www.dol.gov/dol/budget/2013/PDF/CBJ-2013-V2-10.pdf

Related Resource:

BCGi Webinar: 2011 in Review and OFCCP's 2013 Proposed Budget

BCGi (Biddle Consulting Group's Institute for Workforce Development) will be hosting a webinar highlighting and summarizing all of the changes and proposed changes made by the OFCCP in 2011.These include potential changes to compensation analyses, proposed changes to the audit letter,  VEVRAA (Vietnam Era Veterans' Readjustment Assistance Act; Section 4212) NPRM (Notice of Proposed Rulemaking), and proposed hiring goals for individual's with disabilities.

Please join Dr. Patrick Nooren and John Piatt, Wednesday March 7th for this free webinar.

For registration information, please visit the BCGi website today.

BCG to Acquire Kellerman and Associates

Biddle Consulting Group (BCG), an HR industry leader offering EEO, Employee Selection and Affirmative Action consulting services and software since 1974, has entered into a definitive agreement to acquire Kellerman and Associates. Kellerman and Associates, founded by Stephen Kellerman, has been providing expert Affirmative Action consulting services to clients nationwide since 1984. Mr. Kellerman will continue to provide services and support to existing clients during the transition. Kellerman and Associates clients will now be able to benefit from the larger BCG family of services, including access to BCG’s team of Ph.D statistics, validation, and EEO/AA experts as well as platinum-level access to Biddle Consulting Group Institute (BCGI) webinars, training opportunities, publications, and blogs.

According to Patrick Nooren, Ph.D., Executive Vice President of Biddle Consulting Group,

“We are excited to have this opportunity to partner with such an established and respectable name as Kellerman and Associates. For almost three decades, they have been offering a high-level of expertise and support. We look forward to continuing in that tradition.”

U.S. Department of Labor Web Chat: 2013 Budget Q & A

Monday, February 13 at 1:30 p.m. EST Secretary Solis and other DOL leaders will answer your questions about the Fiscal Year 2013 DOL budget request. Please go to http://www.dol.gov/budget/chat-budget-20120213.htm for more information and to set a reminder for Monday's chat.

WRP Webinar on Recruiting and Retaining Individuals with Disabilities

Workforce Recruitment Program

At 1 p.m. on February 28, the Workforce Recruitment Program (WRP) will sponsor a webinar titled Talent Has No Boundaries: An Employer's Guide to Recruiting and Retaining Individuals with Disabilities.

Workforce Recruitment Program webinar details:

Title: Talent Has No Boundaries: An Employer's Guide to Recruiting and Retaining Individuals with Disabilities

When: February 28, 2012 from 1:00 - 2:00 P.M.

Topics: Include the following:

•  Background on WRP's mission
• How to use the WRP website to find talented employees
• How to provide efficient accommodations at your worksite
• Business success stories that inform and inspire
• What tools and resources are available within the federal government to support and advance your employment efforts

Register: by email at wrpmarketing@dol.gov

This webinar is being produced by the U.S. Department of Labor's Office of Disability Employment Policy (ODEP) and the U.S. Department of Defense's Office of Diversity Management & Equal Opportunity (ODMEO).

Equal Pay App Challenge

The Department of Labor and the National Equal Pay Task Force have launched a contest to challenge developers to create an app that educates users about the pay gap and promotes equal pay.

About the Equal Pay App Challenge

Nearly 50 years after President Kennedy signed the Equal Pay Act, on average women are still paid less than their male counterparts for doing comparable jobs – that’s called the pay gap. It means that each time the average woman starts a new job, she’s likely to start from a lower base salary, but it also means that over time the pay gap between her and her male colleagues is likely to become wider and wider.

For the average working woman, the pay gap means $150 less in her weekly paycheck, $8,000 less at the end of the year, and $380,000 less over her lifetime. For women of color and women with disabilities, the disparity is even bigger.

Your challenge is to use publicly available labor data and other online resources to educate users about the pay gap and to build tools to promote equal pay.
Each submission should achieve at least one of the following goals:

• Provide greater access to pay data by gender, race, and ethnicity:

These features should provide data that would be helpful to women throughout their careers as they negotiate starting pay, request a promotion or a raise, or consider switching fields to a more lucrative career path. Participants must ensure that their submission complies with all applicable laws and regulations.

• Provide tools for early career coaching:

These features should use publicly available data to create an interactive online experience to educate young women on the pay gap and enable informed decision- making when selecting a career path.

• Help inform negotiations:

These features should provide feedback, tips, and critiques that guide users through the process of negotiating starting salary, pay rate, job level, or requesting a promotion or raise. These tools should also educate individuals about their legal rights.

• Promote online mentoring:

These features should expand individuals’ access to broader communities and mentorship opportunities by providing a means to connect with others for career guidance.

[Source: http://equalpay.challenge.gov/details/about]

Detailed information and submission guidelines for the Equal Pay Gap Challenge are available at http://equalpay.challenge.gov .

Also, you can read more about the app challenge in the Labor Department's press release.

OFCCP Extends NPRM Comment Period

“On December 9, 2011, OFCCP published a proposed rule entitled, Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals with Disabilities (76 FR 77056). OFCCP was to receive comments on this NPRM on or before February 7, 2012.

Various organizations and entities submitted requests to extend the comment period by an additional 90 days or more. We considered these requests and determined that it is appropriate to provide an additional 14-day period for comment on the proposed regulation. We are, therefore, extending the comment period until, Tuesday, February 21, 2012.”

Source: http://www.dol.gov/ofccp/pdf/503_NPRM_Extended.pdf

To learn more about this NPRM, please click on the following Affirmative Action News posts:
http://affirmativeactionnews.blogspot.com/2012/02/house-committee-requests-extension-of.html
http://affirmativeactionnews.blogspot.com/2012/01/neli-webinar-discusses-ofccps-proposed.html
http://affirmativeactionnews.blogspot.com/2012/01/ofccp-webinar-presentation-proposed.html

House Committee Requests Extension of NPRM Open Comment Period

Will the Department of Labor and Secretary Solis head the call to extend when the plea comes from the Committee on Education and the Workforce, U.S. House of Representatives?

With the OFCCP’s Notice of Proposed Rulemaking (regarding individuals with disabilities) open comment period scheduled to close on February 7, 2012, special interest groups have requested extensions to the comment period, but to no avail. On January 27th, House members John Kline and Phil Roe are attempting to extend the comment period by 90 days through a letter sent to the Department of Labor and Secretary Solis. Within the letter, they request the OFCCP to furnish additional documentation regarding:

1. Identify and explain OFCCP’s statutory authority under Section 503 to establish an numerical hiring standard.


2. Identify and explain the basis for OFCCP’s decision that federal contractor good faith efforts are insufficient affirmative action under Section 503.


3. Identify and explain OFCCP’s statutory authority to require contractors to ask job applicants to self-identify as a qualified individual with a disability, given that the ADA prohibits disability-related questions before an offer of employment has been made.


4. Identify and explain the basis for OFCCP’s assumption that job applicants and contractors’ current employees would understand the legal definition of “disability”, as defined in the NPRM’s prescribed self-identification notice.


5. Explain how the OFCCP arrived at the assumption that contractors would only spend 30 minutes per year to explain their reasoning and circumstances for rejecting individuals with disabilities for vacancies and training programs.


6. Under proposed section 60-741.44(d), OFCCP failed to consider the costs federal contractors would incur to make their “electronic or online job application systems compatible with assistive technology commonly used by individuals with disabilities, such as screen reading and speech recognition software. Likewise, under proposed section 60-741.44(g), OFCCP failed to consider the economic burdens associated with discussing the NPRM’s new affirmative action requirements with all employees during, for example, orientation and training events. Explain why OFCCP failed to consider the costs of contractors’ compliance with these provisions or proposed sections 60-741.44(d)and (g).

Letter to Secretary Solis:
http://edworkforce.house.gov/UploadedFiles/2012-01-27_-_Letter_to_Sec_Solis_re_OFCCP.pdf

Within the months ahead, a contractor’s responsibilities associated with additional data collection/retention will likely increase. However, wholesale changes to HRIS and reporting systems today would not be the prudent approach. BCG recommends discussing the issues internally now, and preparing your budgets for the pending changes in requirements, but to hold-tight on making any wholesale changes until the proposed rule is finalized.