12/09/2013 by Attorney J. Brandon Sieg
Authored by Attorney J. Brandon Sieg
On September 24, 2013, the Department of Labor published revisions to its non-discrimination and affirmative action regulations associated with Section 503 of the Rehabilitation Act of 1973. Although the regulations will become effective on March 24, 2014, additional time is permitted for current contractors to bring their affirmative action programs into compliance. These revised regulations, among other things, affect the data-collecting and record-keeping requirements of federal contractors, establish target workforce utilization goals for individuals with disabilities, require contractors to invite applicants and current employees to self-identify as individuals with disabilities, and set forth specific language to be included in contracts with subcontractors.
Under these revisions, contractors will now be required to include specific language in each of their subcontracts to reference the equal opportunity clause provided by 41 C.F.R. § 60-741.5(a). The clause itself is also modified with an additional paragraph 7, which requires contractors to state that they are equal opportunity employers. A new provision, 41 C.F.R. § 60-741.44(f)(ii) will require contractors to send written notice to their subcontractors about their affirmative action efforts and to request their subcontractors’ cooperation.
Contractors will now also be required to create and maintain additional records related to individuals with disabilities. Revised 41 C.F.R. § 60-741.44(f)(3) will require the contractor to self-assess its outreach and recruitment efforts annually. The contractor must now document its efforts to comply with its affirmative action obligations, and it must maintain this documentation for three years. 41 C.F.R. § 60-741.44(f)(4). Additionally, the contractor must maintain statistics such as the number of job openings, openings filled, applicants self-identifying as individuals with disabilities, and the number of applicants with disabilities hired. 41 C.F.R. § 60-741.44(k). A federal contractor must now also document actions taken pursuant to the audit requirement of 41 C.F.R. § 60-741.44(h).
These revisions set a national goal of 7 percent utilization of individuals with disabilities. 41 C.F.R. § 60-741.45. For contractors with more than 100 employees, this target applies to each segment of the contractor’s workforce. For contractors with less than 100 employees, this target applies to the contractor’s entire workforce. Notably, this target is neither a quota nor a ceiling—if the contractor fails to meet this target, then it must take steps to address any identified problems.
More information about these regulations can be found at Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals with Disabilities, 78 Fed. Reg. 58682 (Sept. 24, 2013), and Office of Federal Contract Compliance Programs, Final Rule: Section 503 of the Rehabilitation Act, United States Department of Labor (last visited Nov. 11, 2013), http://www.dol.gov/ofccp/regs/compliance/section503.htm (providing a chart comparing the revised regulations to the existing regulations)
These articles are meant to bring awareness to these topics and are not intended to be used as legal advice.