WHAT’S NOT IN THE FINAL RULES OF 503 AND VEVRAA?

On August 27, 2013 Vice President Biden and The U.S. Department of Labor announced two final rules which aim to improve hiring and employment of individuals with disabilities and veterans. Section 503 of the Rehabilitation Act of 1973, prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities. Section 503 requires federal and subcontractors to take affirmative action to recruit, hire promote, and retain individuals with disabilities (IWDs). The Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) prohibits federal contractors and subcontractors from discriminating in employment against protected veterans. VEVRAA requires federal contractors and subcontractors to take affirmative action to recruit, hire, promote, and retain protected veterans.

On April 26th, 2011, OFCCP published a Notice of Propose Rulemaking (NPRM) inviting comments for a rule that would strengthen affirmative action obligations concerning protected veterans; later in the year on December 9th, 2011, OFCCP published an NPRM that would also strengthen the provisions in section 503 and proposed new requirements such as setting a utilization goal of seven percent. The proposed rules were published in the Federal Register, to notify the public and to provide an opportunity to submit comments. The 60-day comment period (which was extended by 14 days for Section 503, as a result of a request by the US House of Representatives Committee on Education and the Workforce to extend the comment period, to allow the contractor community to review the 200-page document in detail) allowed stakeholders to comment on the rules, including addressing a number of concerns with the proposed changes. Some important concerns expressed by the public were in fact considered in drafting the final rules. The list below includes initially proposed requirements that did not make it into in the final rules. Specifically, contractors will NOT have to:

• Establish three linkage agreements
• Reproduce the entire EO clause in contracts
• Include specific, prescribed topics in training
• Annually review personnel policies (this was “yearly,” but is now “periodically” required)
• Ask individuals with a disability and disabled veterans about accommodations (this is optional)
• Annually review every job for physical and mental job qualifications (this was “yearly,” but is now “periodically” required)
• Consider individuals with a disability and protected veterans for all other jobs (originally, the requirement was that contractors “must” consider those individuals, but the new wording is “should”)
• Justify selection decisions any time an individual with disability or protected veteran is not selected
• Develop a 2% sub-goal for severely disabled
• Collect referral and ratio of priority referral data
• Maintain records for 5 years (the requirement is 3 years in the final rules)

by Yesenia Avila, M.P.S., HR Analyst and David Morgan, M.S., Senior Consultant, DCI Consulting Group