Author: David B. Weisenfeld, XpertHR Legal Editor

October 9, 2013

Federal contractors and subcontractors will soon face significant changes to their affirmative action requirements. The Federal Register has published final rules from the Office of Federal Contract Compliance Programs (OFCCP) to improve the hiring and employment of individuals with disabilities and veterans. The Final Rules have been published in the Federal Register and are scheduled to take effect March 24, 2014.

In the latest XpertHR podcast, Baltimore employment attorney Peter Saucier, who practices with Kollman & Saucier and has represented employers for more than 30 years, discusses the OFCCP's new rules along with the chief compliance challenges for employers.

The OFCCP rules impose several new requirements on contractors including:

  • Setting a nationwide 7 percent hiring goal for individuals with disabilities;
  • An 8 percent benchmark for protected veterans under the Vietnam Era Readjustment Assistance Act (VEVRAA);
  • A requirement that federal contractors invite job applicants to self-identify as an individual with a disability or a veteran both pre-offer and post-offer; and
  • Increased recordkeeping requirements of at least three years.

The rules modify affirmative action compliance obligations under Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). They apply to covered contractors and subcontractors with 50 or more employees.

In the past, federal contractors and subcontractors could largely focus on minorities and women with their affirmative action efforts. But according to Saucier, the new hiring benchmarks will bring contractors' affirmative action responsibilities for individuals with disabilities and veterans more in line with those for minorities and women.

Huge Disability Training Challenge

Saucier calls the OFCCP's requirement that covered employers gather data by asking job applicants about their disabilities "a sea change."

Saucier says, "We will be required as government contractors to ask people if they are disabled." He explains that this could lead to questions from applicants such as, "Am I disabled if I have X?" Saucier warns employers that this kind of compliance challenge is going to require significant training.

The Americans with Disabilities Act (ADA) has always precluded employers from asking individuals if they have a disability. "These new regulations from the OFCCP really say we want you to take affirmative action by gathering data," says Saucier. "And that means we want you to ask applicants about their disabilities."

Saucier advises covered employers that it is important to have someone who is a specialist in disability services, and maybe even an HR professional who has expertise with disabilities in veterans, as opposed to five general HR people. "I certainly say to my clients that when the OFCCP undertakes something like this... they are going in a serious direction." So, Saucier concludes, employers that take the new requirements lightly will do so at their peril.