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LOGO DC METRO BUSINESS LEADERSHIP NETWORK DC Metro BLN 2012
© 2012 Jackson Lewis LLP 2 DC METRO BLN AGENDA MARCH 7,2012 BEYOND COMPLIANCE TO EMPLOYER OF CHOICE Featuring JacksonLewis OFCCP DIRECTEMPLOYERS PANELISTS from: SAIC, BOOZ ALLEN, Northrop Grumman
© 2012 Jackson Lewis LLP 3 WHAT IS THE DC METRO BLN? BUSINESS DRIVEN- BUSINESS FOCUSED Meeting HR D&I professionals needs for disability as a diversity and compliance strategy Monthly professional programs (HRCI accredited) Bi-monthly newsletter with timely & relevant information Interactive web B2B member networking Social networking for idea exchange Quarterly networking breakfasts
© 2012 Jackson Lewis LLP 4 Why You Should Join Join forward-thinking DC Metro employers Enjoy B2B networking Engage with like-minded businesses Safe harbor Q&A opportunities Learn about peer journeys toward inclusion Become an employer of choice with disability certification program Successfully address disability compliance Attract & retain talent Attract & retain new clients Community recognition
OFCCP’s Proposed Section 503 Regulations: Top 10 Takeaways for Federal Contractors March 7, 2012 Jackson Lewis, LLP Jackson Lewis LLP presents for the DC Metro Business Leadership Network Matthew J. Camardella Kevin D. Holden
© 2012 Jackson Lewis LLP 6 ABOUT JACKSON LEWIS LLP Jackson Lewis LLP is dedicated to representing management exclusively in workplace law and related litigation. With nearly 50 offices and more than 650 attorneys nationwide, the firm has a national perspective and sensitivity to the nuances of regional business environments. Guided by the principle that a positive work environment results in enhanced morale and increased productivity, the firm devotes a significant portion of its practice to management education and preventive programs. This approach helps limit exposure to grievances, charges and lawsuits.
© 2012 Jackson Lewis LLP 7 ABOUT THE AFFIRMATIVE PRACTICE GROUP We have unparalleled experience preparing AAPs and defending them before the OFCCP in all industries and areas of the country. Our diverse team of 35 attorneys, analysts, statisticians, and support staff prepares approximately 2,500 AAPs a year. Since 2009, we have defended over 250 OFCCP audits, including successful defense of Corporate Management (“Glass Ceiling”) Compliance Evaluations. As a law firm, we offer more than consulting services, we offer strategic thinking and sophisticated legal representation.
© 2012 Jackson Lewis LLP 8 1. ANNUALLY CONDUCT A UTILIZATION ANALYSIS USING A 7% NATIONAL STANDARD Requirement Contractors must establish a utilization goal of 7% for persons with disabilities for all jobs groups. Considerations Contractors must set a hiring goal of 7% for every job group rather than a single 7% goal for the workforce as a whole. This may be more difficult in some job groups than in others.
© 2012 Jackson Lewis LLP 9 2. ANNUALLY COLLECT APPLICANT/HIRE DATA Requirement Contractors must collect the following data: total number of applicants; number of applicants known to be individuals with disabilities; number of job openings and jobs filled; and number of hired persons known to be individuals with disabilities. Considerations This will allow OFCCP to conduct adverse impact analyses based on disability status. Unexplained, statistically-significant disparities in selection rates could lead to allegations of discrimination and demands for back pay with interest, along with preferential hiring mandates.
© 2012 Jackson Lewis LLP RETAIN APPLICANT/HIRE DATA Requirement Contractors must maintain applicant and hire data for five years. Considerations Retention time for all other records pursuant to E.O is two years. As a practical matter, contractors likely will retain all records for five years.
© 2012 Jackson Lewis LLP 11 4.ANNUALLY REVIEW PERSONNEL PROCESSES AND PHYSICAL/MENTAL QUALIFICATIONS FOR EVERY JOB Requirement Contractors must annually review personnel processes and physical/mental qualifications for every job Considerations This will require significant amounts of time and energy – how can this be accomplished most efficiently while still satisfying the regulatory requirement?
© 2012 Jackson Lewis LLP FOLLOW MANDATORY STEPS FOR OUTREACH AND RECRUITMENT Requirement Contractors must undertake additional outreach by: Listing all openings with the employment delivery service/One-Stop (DOL Website) Entering into at least three (3) linkage agreements, some of which are specifically mandated by the regulations Considerations While the requirement that contractors list openings with state job services is not new, now is a good time to consider how this obligation is currently satisfied (i.e., internally, third-party, etc.) Where will this function reside? Talent acquisition, compliance, human resources?
© 2012 Jackson Lewis LLP 13 6.REVIEW OF EFFECTIVENESS OF OUTREACH EFFORTS Requirement Contractors must annually review the effectiveness of recruitment and outreach efforts, including: a written conclusion as to which efforts were successful; and steps to improve the effectiveness of unsuccessful efforts. Considerations Again, now is a good time to monitor the activities of third-party vendors. Really crystallizes the need for personal relationships with diversity outreach partners.
© 2012 Jackson Lewis LLP INVITE APPLICANTS TO SELF-IDENTIFY Requirement Contractors must invite applicants to voluntarily self-identify as a person with a disability both pre-offer and post-offer using mandatory language provided by OFCCP. Considerations The invitation to self-identify as a person with a disability only includes an option to identify affirmatively as a person with a disability. A lack of alternatives may skew responses towards inaccurate self-identification as a person with a disability. Anticipate underreporting due to the highly legalistic definition of “disability” and the fear of stigma for identifying as a person with a disability.
© 2012 Jackson Lewis LLP ANNUALLY SURVEY EMPLOYEES RE: DISABILITY STATUS Requirement Contractors must annually resurvey employees, giving them the opportunity to voluntarily and anonymously self-identify as a person with a disability (i.e., if they became disabled during the past year). Considerations We are not sure how the anonymous self-identification will help achieve objectives. Contractors won’t necessarily know what it is they are doing well or what requires improvement. Resurvey will not help contractors determine if individuals with disabilities are underutilized since responses are anonymous (e.g., which job group employees belong to).
© 2012 Jackson Lewis LLP DEVELOP WRITTEN PROCEDURES FOR REQUESTING REASONABLE ACCOMMODATIONS Requirement Contractors must develop and implement written procedures for reasonable accommodation requests that must address: how to request a reasonable accommodation; the timeframe for processing requests; and when medical documentation may be sought. Considerations Many contractors already have these processes in place – now is a good time to consolidate and put these processes into writing. Supervisors must be trained in and follow these procedures – no more “casual” accommodations. If procedures are not followed, is there a basis for denial of EPLI insurance claim?
© 2012 Jackson Lewis LLP ADVISE EMPLOYEES OF THEIR RIGHTS SHOULD THEIR REQUEST FOR REASONABLE ACCOMMODATION BE DENIED Requirement In the written procedures for requesting reasonable accommodation, contractors must provide employees with: a written confirmation of their requests; If the request is denied, a written copy of the denial, including the basis for the denial and a notification of the employee’s right to file a complaint with OFCCP; and the contact information for the responsible official. Considerations Language in denial must be carefully worded – really needs oversight by counsel.
© 2012 Jackson Lewis LLP 18 FINAL THOUGHTS Increased requirements will undoubtedly make recruitment and employment of individuals with disabilities a higher priority. Hopefully, this will lead to a greater percentage of the labor force being comprised of individuals with disabilities. Major increase in burdens associated with compliance – is your organization staffed to handle these burdens? Likely to result in substantial increase in litigation – what can your organization do to mitigate the risk?
© 2012 Jackson Lewis LLP 19 QUESTIONS? Thanks for attending! If you wish to discuss any aspect of the proposed regulations in more detail, please contact: Matthew J. Camardella (631) Kevin D. Holden (804)
© 2012 Jackson Lewis LLP 20 OFCCP OFFICE OF FEDERAL CONTRACT COMPLIANCE US DEPARTMENT OF LABOR Claudia Gordon, Special Assistant to the Commissioner, Pat Shui
© 2012 Jackson Lewis LLP 21 NPRM: Section 503 of the Rehabilitation Act of 1973 Strengthening Employment Protections for Individuals With Disabilities Wednesday, March 7,
© 2012 Jackson Lewis LLP 22 Why Revise the Regulations? Framework unchanged since the 1970’s BLS data show stark employment disparities: 79% of those with disabilities outside the labor force 30% of those without disabilities out of labor force Existing framework clearly not working Revisions intended to increase employment opportunities for individuals with disabilities Wednesday, March 7,
© 2012 Jackson Lewis LLP 23 NPRM Overview Incorporate changes necessitated by the ADA Amendments Act of 2008 Require annual review of personnel processes Require outreach & recruitment measures Mandate job listing requirements Wednesday, March 7,
© 2012 Jackson Lewis LLP 24 NPRM Overview (2) Modify invitation to self-identify Establish a national utilization goal Require written reasonable accommodation procedures Require increased data collection Modify compliance evaluation procedures Wednesday, March 7,
© 2012 Jackson Lewis LLP 25 Necessitated by the ADAAA ADAAA applies equally to Section 503. ADAAA primarily broadens the definition of “disability;” became effective January 1, NPRM revisions consistent with amended EEOC regulations. Wednesday, March 7,
© 2012 Jackson Lewis LLP 26 Annual Review of Personnel Processes Mandate previously recommended steps contractors must take to review their personnel processes, and to review physical and mental job qualifications Review and its results must be documented Reviews must take place annually rather than periodically Wednesday, March 7,
© 2012 Jackson Lewis LLP 27 Mandatory Outreach/Recruitment Efforts Proposes requiring that contractors: List all openings with the employment delivery service/One-Stop; Enter into at least 3 linkage agreements; Annually review effectiveness of recruitment efforts; and Document this review Records must be kept for 5 years Wednesday, March 7,
© 2012 Jackson Lewis LLP 28 Invitation to Voluntarily Self-Identify Proposes both pre-offer & post-offer invitations AND Annual anonymous resurvey of employees OFCCP will mandate text of contractor invitations Will provide much needed data to evaluate workplace practices Wednesday, March 7,
© 2012 Jackson Lewis LLP 29 Establishment of a National Utilization Goal National utilization goal of 7% for each job group in workforce Based on limited American Community Survey (ACS) labor force & discouraged worker data Goal is neither a quota nor a ceiling An important tool: “What gets measured gets done” Wednesday, March 7,
© 2012 Jackson Lewis LLP 30 Written Reasonable Accommodation Procedures Proposes contractors develop and implement written procedures for accommodation requests. Procedures must be in AAP and contain specific elements, including: How to request reasonable accommodation; Written confirmation of RA requests; Timeframe for processing RA requests; When medical documentation may be sought; Denials in writing, including the basis for denial; and Responsible official and contact information Wednesday, March 7,
© 2012 Jackson Lewis LLP 31 Increased Data Collection Proposes contractor document & maintain specific data computations, including : The ratio of jobs filled to job openings; The ratio of applicants with disabilities to all applicants; The total number of applicants hired; and The ratio of individuals with disabilities hired to all hires. Records must be kept for 5 years Wednesday, March 7,
© 2012 Jackson Lewis LLP 32 Compliance Evaluation Procedures Proposes revisions to compliance evaluation procedures: Contractors must provide records in any available format that OFCCP requests; Allows access to records for compliance checks & focused reviews onsite OR offsite at OFCCP’s discretion; and Adds a pre-award compliance evaluation to make Section 503 consistent with EO Wednesday, March 7,
© 2012 Jackson Lewis LLP 33 Comments The public comment period ended on February 21, OFCCP received a total of 413 comments. What does OFCCP do with the comments it receives? Reviews and analyzes Comments assist OFCCP in developing Final Rule on Section 503, which will make permanent changes to the regulations Wednesday, March 7,
© 2012 Jackson Lewis LLP 34 QUESTIONS? Wednesday, March 7,
© 2012 Jackson Lewis LLP 35 DIRECTEMPLOYERS JULIE COOK Slide one 35 Slide one 35
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