OFCCP ISSUES GUIDANCE ON NEW DISABILITY/VETERAN'S AFFIRMATIVE ACTION REQUIREMENTS

There has been some confusion about when the new requirements pertaining to individuals with disabilities and protected veterans apply to affirmative action plans. The additional requirements only apply when specific contract value and employee thresholds are met.

Employers with federal contracts worth more than $10,000.00 are subject to the general non-discrimination provisions. However, similar non-discrimination obligations regarding protected veterans apply only to employers with federal contracts valued at $100,000.00 or more. The larger threshold of $100,000.00 also applies to the additional written affirmative action plan obligations relating to veterans.

In contrast, the new disability requirements apply when employers have federal contracts worth more than $50,000.00. These disability requirements require a nation-wide seven percent (7%) utilization goal for disabled individuals in each job group of a federal contractor's workforce. If a contractor has less than 100 employees, the final rule requires the seven percent (7%) goal to be applied to the entire workforce.

In all cases, the employer must have 50 or more employees to meet the threshold requirements. In case the contract value thresholds are met, the requirements for the federal contractor is to invite job applicants to voluntarily self-identify either as protected veterans or as individuals with disabilities, or both, at the pre-offer and the post-offer phases of the employment process.

On June 18, the Labor Department's Office of Federal Contract Compliance Programs issued additional guidance. Among other things, the guidance indicates that federal contractors are not required to hire a disabled individual who is not the best qualified candidate for a position in order to meet the affirmative action rules. However, contractors would not violate the rules by selecting a disabled applicant over an equally or better qualified candidate, "so long as that selection was not based on a prohibited factor such as race, gender or ethnicity."

With respect to a contractor's obligation to invite current employees to voluntarily self-identify as disabled, the guidance clarified that employers "have the flexibility to choose any method or methods that are reasonably and likely to be effective, given its particular circumstances." These methods could include email notices or employee portals on the company Intranet, or bulletin board notices posted in an employee break room. If the contractor receives "non-responses" to the invitation to voluntarily self-identify, the OFCCP indicates that the contractor should count those responses "solely in the job group total" when conducting a utilization analysis to determine the percentage of disabled individuals within a job group. However, if a contractor has actual knowledge that a particular non-responsive individual has a disability, it may count that person as an individual with a disability for utilization analysis purposes whether or not the individual voluntarily self-identified.

Regarding the self-identification provisions for veterans, the OFCCP guidance indicates that if an individual self-identifies as a protected veteran at the pre-offer stage of the employment process but then doesn't positively self-identify at the post-offer stage, a contractor may still identify that new hire as a "protected veteran."