Affirmative Action Plan Revisions Section 503

As part of their effort to augment the hiring of individuals with a disability, part of the OFCCP’s Notice of Proposed Rule Making requires federal contractors with affirmative action plans to list job opportunities and/or have entered into linkage agreements with 4 separate recruitment resources. The Notice, unfortunately, offers absolutely no strategies and information related to the type of success rate relating to referrals from using those sources, as part of obtaining significant employment, and also recommendations as to the format or content related with the contracts. The definition of “linkage agreements” communicates who is required to ratify the contract, however the suggested rules do not offer any sort of further advice as to the expected content of the contracts. Contractors clearly believe that these are the types of relationships that are critical for the referral and selection of suitable candidates with a disability.

The inability of the OFCCP to provide contractors clear guidance regarding their affirmative action efforts suggests that OFCCP has not thought the matter through and should withdraw the proposed requirement all together.

The Agency’s failure to endorse a national employment service further confirmst their lack of seriousness regarding the Proposed Rule. When one reviews current sources listed by OFCCP as linkage programs it is evident that such sources will not provide the quality referrals OFCCP suggests. In addition these organizations have not been vetted to ensure that they will accept and be able to handle the 10’s of thousands of requests for contractors.

Again, OFCCP should clearly reassess or completely withdraw the mandated requirement affirmative action/federal contractors recruit from such lists or resources. no assurances that these organizations are prepared to handle this volume of requests.

One more issue with the OFCCP’s Notice is that the disregard the years contractors have spent establishing relationships with organizations for individuals with a disability that are much better qualified to provide suitable candidates. We are concerned that they will have to forego these beneficial relationships yielding qualified individuals with a disability for other agencies dictated by the OFCCP. Thus, the NILG suggests that, to the extent the OFCCP requires contractors select sources from the lists provided by the Agency, the OFCCP implement a process whereby contractors can suggest entities to be added to the pool of eligible agencies.

Affirmative Action Revisions Section 503

Affirmative Action comment regarding OFCCP’s proposed rule making regarding Section 503.

The proposed regulations will also call for a segment mandating federal contractors to “send written notification of company policy related to affirmative action efforts to its subcontractors, including subcontracting vendors and suppliers in order to request appropriate action on their parts and to publicize the contractor’s commitment to affirmative action on behalf of individuals with disabilities.” This criteria, that sets no schedule for sending the notices, establishes a redundant and also difficult task for contractors. Contractors are currently mandated to alert their subcontractors and suppliers of their affirmative action obligations. Because this is a redundant process contractors will waste already stretched resources to comply with this request.

The Notice furthermore requires affirmative action plan contractors to keep all records related to this issue for 5 years, this is a clear deviation from the current requirement that mandates records be kept for 2 years. There will obviously be confusion amongst the contractor community regarding the affirmative action plan recordkeeping requirements.

Contractors found in noncompliance during Affirmative Action Plan audits for FY 2011 increases by 48%.

Contractors found in noncompliance during audits for FY 2011 increases by 48%.

The Office of Federal Contractor Compliance Programs (OFCCP) reported that almost 30% of Affirmative Action Plan audits that it conducted in FY 2011 ended with a finding of noncompliance. This represents an increase of 48% over previous years. The state with the largest findings of noncompliance where an audit ended in a conciliation agreement was California. A conciliation agreement is used by OFCCP to correct any deficiencies and necessitates the contractor to submit additional data to the OFCCP, usually at 6 month time intervals. Historically, affirmative action conciliation agreements last two years and may include significant back-pay as well as reporting requirements.

Poor recordkeeping continues to be the number one reason federal contractors find themselves in noncompliance. OFCCP breaks violations down into 13 categories:

• Written AAP

• Past Performance

• Recordkeeping

• Recruitment

• Denial of Records or Access

• Hiring

• Promotion

• Termination

• Selection or Testing

• Salary

• Medical Screening

• Accommodation

• Systemic Discrimination

In the past year, we have seen OFCCP increase its affirmative action audit focus on veterans outreach, inadequate recordkeeping of applicants, and compensation.

Clients that continue to face the largest challenge are those that delay the preparation of their AAP or have transitioned into “reactive mode” and only prepare their AAP when they receive the OFCCP’s scheduling letter. This places a huge burden on them to reproduce records that can encompass up to three years of data.

We strongly suggest that our clients be proactive with their recordkeeping and outreach efforts for veterans and organizations that support employment for individuals with disabilities.

Questions concerning this notice should be directed to James Gutierrez, President, Career Resources, Inc. (

OFCCP Setting Quotas For Affirmative Action Contractors

In recent news the OFCCP made the decision to establish a 7% nationwide utilization goal for individuals with disabilities affecting federal contractors with affirmative action and affirmative action plan responsibilities. If the OFCCP chooses to establish a required utilization goal, the criteria that the goal be set for each and every single job group is overly burdensome and impractical.

1st, the number of analyses necessary to be performed at the job group level would be challenging. Most affirmative action plan contractors have lots of job groups at each organization and in some cases hundreds of establishments. The affirmative action plan contractor would have to complete the necessary measurements for each job group at each establishment.

2nd, the absence of the information required to conduct the calculations at this degree places a particular irrational burden upon the affirmative action plan contractors. While contractors can gather and save race and gender records by individual, and thus can perform the necessary gender and race utilization analyses, the proposed legal requirements calls for anonymous collection with regards to disability status information. This is what makes utilization analyses of individuals with a disability by job group impossible.

Due to the fact federal contractors are found across different industries, as part of different geographical segments, along with different jobs and also job criteria and have differing quantities of vacancies to fill at any given time across-the-board national utilization goal for individuals with a disability is arbitrary.

Therefore, an arbitrary, rigid goal seems to have virtually no interpretation for companies, especially if they conclude that virtually no amount of good faith efforts will permit them to achieve an impractical goal.

The OFCCP’s unrealistic estimate that this would take 60 minutes the first year and 30 minutes total in subsequent years for each contractor is woefully lacking. The reality is that it will to take companies hours to process the utilization of individuals with disabilities. The ideal suggestion would be for OFCCP to enable companies to continue their current affirmative action efforts pertaining to the selection of individuals with disabilities and judge contractors upon their total beneficial results and keep utilising the Vets 100 and Vets 100A report as a device to evaluate contractors success.