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OFCCP Proposes Rule to Impose Hiring Goal on Federal Contractors and Subcontractors

The Office of Federal Contract Compliance Programs (OFCCP), an agency of the United States Department of Labor, has proposed a new rule that would require those federal contractors and subcontractors that are subject to affirmative action laws and regulations to set a hiring goal of having 7 percent of their workforces be people with disabilities.

The OFCCP's proposed rule, which was published in the Federal Register on December 9, would strengthen the affirmative action requirements pertaining to the employment of qualified workers with disabilities, as set forth in Section 503 of the Rehabilitation Act of 1973.  The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination.

Highlights of the proposed rule include, among other things:

  • Establishing a 7 percent hiring goal for the employment of individuals with disabilities
  • Increase data collection obligations, by requiring contractors to invite all applicants to voluntarily self-identify as an “individual with a disability” at the pre-offer stage of the hiring process, to invite post-offer voluntary self-identification, and to survey all employees annually in order to invite their self-identification in an anonymous manner.
  • Increase recordkeeping obligations, by requiring contractors to maintain records on the number of individuals with disabilities applying for positions and the number of individuals with disabilities hired.
  • Require that contractors develop and implement written procedures for processing requests for reasonable accommodation.
  • Require that contractors engage in a minimum of three specific types of outreach and recruitment efforts to recruit individuals with disabilities.
  • Require that contractors list job openings with One-Stop Career Centers or other appropriate employment delivery systems.
  • Require annual self-audits.

A goal is not a mandate, and it is unlikely that the OFCCP will seek to impose penalties on contractors that fail to meet this hiring goal.  Nevertheless, contractors that fail to meet the 7% hiring goal will likely be the focus of increased OFCCP scrutiny and conciliation efforts.  Further, if the proposed rule is implemented, it will be the first time the OFCCP has set a specific numerical hiring goal unrelated to the availability of qualified workers within the reasonable recruitment area for non-construction contractors.

We expect there to be strong opposition to the imposition of hiring goals, as well as to the imposition of additional, significant burdens on contractors.  We will keep you updated.

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Martha Zackin