• OFCCP Releases Major New Changes to Affirmative Action Regulations for Disabled and Veterans
  • September 3, 2013 | Authors: Richard Gerakitis; Ashley Z. Hager; James "Jim" M. McCabe
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • On August 27, 2013, the Office of Federal Contract Compliance Programs (OFCCP) released major revisions to regulations relating to the laws requiring federal contractors and subcontractors to engage in affirmative action for disabled individuals and veterans.

    Background: The OFCCP’s regulations interpreting these two laws - the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) - were long past due for an update, but many contractors were shocked to see the scope of the changes proposed by the OFCCP in its Notice of Proposed Rulemaking issued in April 2011. These changes have been called “game-changing” - largely because they would impose on contractors for the first time an obligation to analyze data concerning their hiring and promotion of disabled individuals and veterans, identify problem areas, and take action-oriented steps to address any problems. After reviewing comments from hundreds of employers as well as special interest groups representing the disabled and veterans, the OFCCP made a few changes to the regulations it ultimately adopted. These final regulations do not include some of the more burdensome proposals outlined in the proposed regulations, but they do include the requirement of numerical analyses that surprised and troubled so many employers.

    What Is Included in the Final Regulations: Some of the most significant changes to the regulations include:

    • All contractors will be subject to a 7% utilization goal for disabled employees that applies to each job group (except that contractors with fewer than 100 employees may apply the 7% goal across the entire company).
    • Each contractor must establish its own benchmarks for the number of veterans that should be hired by the contractor based on certain statistics and criteria.
    • Contractors must invite applicants to self-identify as being disabled or veterans at the pre-offer stage and the post-offer stage. In addition, employees must be invited to self-identify as being disabled the first year after the contractor becomes subject to the new regulations and every five years thereafter.
    • Contractors are required to include new language in bold print in their covered subcontracts alerting the subcontractor to its obligations under the Rehabilitation Act and VEVRAA.
    • Contractors will be required to review the effectiveness of their outreach efforts for disabled employees and veterans once each year, looking back over a 3-year period, and document their review.

    What is Not Included in the Final Regulations: The OFCCP did not implement a few of the more burdensome requirements proposed in the Notice of Proposed Rulemaking, including the following:

    • The OFCCP did not impose a 2% sub-goal for significantly disabled employees.
    • Contractors will not be required to develop written procedures for handling requests for reasonable accommodations (although it is recommended that they do so).
    • Contractors are not required to review their processes and job qualification standards on an annual basis (although they are required to do so periodically).
    • Contractors are not required to enter into linkage agreements with certain disabled-related and veteran-related organizations.

    Effective Date: The new regulations will go into effect 180 days from the date they are published in the Federal Register (which has not yet occurred). However, contractors and subcontractors should take some comfort from the fact that a contractor’s affirmative action plan that is prepared pursuant to the existing regulations and is in existence prior to the effective date need not be updated to comply with the new regulations until the end of the plan year. The new regulations will apply to any affirmative action plan that is developed after the effective date of the new regulations.