According to its own website, the primary responsibility of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), is to: “enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government.”  In furtherance of that goal, the OFCCP published, on August 27, 2013, the final rules that govern affirmative action regulations for individuals with disabilities and for protected veteran. See, Final Rule to Improve Job Opportunities for Protected Veterans and the Final Rule to Improve Job Opportunities for Individuals with Disabilities

The new rules require each federal contractor – and subcontractor – to set a nationwide “aspirational” 7 percent “utilization goal” for individuals with disabilities in each job group currently included in the company’s existing affirmative action plan.

In addition, under the new rules, federal contractors must establish annual hiring benchmarks for protected veterans. The benchmarks can be based upon the national percentage of veterans in the civilian labor force or alternatively, can be based on five specific factors outlined in the rules. Those five factors include state-based data that will be published by the OFCCP, as well as other factors that reflect the specific contractor’s “unique hiring circumstances.”

Both final rules also:
• impose new quantitative data collection responsibilities regarding total job openings, applicants, and hires and three-year record-keeping requirements;
• provide for new pre-offer applicant self-identification of disability and protected veteran status in addition to existing post-offer self-identification;
• require an annual assessment of outreach and recruitment efforts and documentation of criteria used to evaluate each of those efforts, as well as the contractors’ conclusion as to whether each effort was successful;
• require that contractors include certain specific language in subcontracts and purchase orders; and
• indicate that contractors must allow access to the OFCCP to review documents either on-site or off-site (at the OFCCP’s option), and must provide existing records to the OFCCP in the format requested by OFCCP.

These criteria create a significant revision of the affirmative action regulations implementing Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Readjustment Assistance Act, which set the previous parameters for disability and veteran issues. Both rules also include sample language for the invitation – required by Section 503 –by which contractors must invite current employees to self-identify as an individual with a disability every five years.

In addition, similar to Section 503, the new rule regarding disabled employees/applicants incorporates the expanded definition of “disability” under the final regulations to the Americans with Disabilities Act Amendments Act (ADAAA) of 2008 and suggests “best practices” for reasonable accommodation. The final rule regarding veterans includes clarification of contractors’ job-listing requirements with the appropriate state or local job services.

These new regulations apply to federal contractors and subcontractors, including construction contractors. (However, the regulations do not apply to federally-assisted construction contractors.) According to Dara DeHaven, in Ogletree’s Atlanta office, both the final rule that governs affirmative action regulations for individuals with disabilities, as well as the rule that governs protected veteran are available on the OFCCP website and will be published in the Federal Register in the upcoming weeks.