[Federal Register Volume 75, Number 141 (Friday, July 23, 2010)]
[Proposed Rules]
[Pages 43116-43118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18104]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-741
RIN 1250-AA02
Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors; Evaluation of Affirmative Action
Provisions Under Section 503 of the Rehabilitation Act, as Amended
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is
issuing this Advance Notice of Proposed Rulemaking (ANPRM) in order to
invite the public to provide input on how OFCCP can strengthen the
affirmative action requirements of the regulations implementing section
503 of the Rehabilitation Act of 1973, as amended (Section 503).
Strengthening affirmative action requirements will help increase the
employment opportunities of people with disabilities in the Federal
contractor sector.
DATES: All comments must be received on or before September 21, 2010.
ADDRESSES: You may submit comments, identified by RIN number 1250-AA02,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail and Hand Delivery/Courier: Barbara J. Bingham, Acting
Director, Division of Policy, Planning, and Program Development, Office
of Federal Contract Compliance Programs, Room N3422, 200 Constitution
Avenue, NW., Washington, DC 20210.
Receipt of submissions will not be acknowledged; however, the
sender may request confirmation that a submission has been received by
telephoning OFCCP at (202) 693-0102 (voice) or (202) 693-1337 (TTY)
(these are not toll-free numbers).
All comments received, including any personal information provided,
will be available Online at http://www.regulations.gov and for public
inspection during normal business hours at Room C-3325, 200
Constitution Avenue, NW., Washington, DC 20210. People needing
assistance to review comments will be provided with appropriate aids
such as readers or print magnifiers. Copies of this Advance Notice of
Proposed Rulemaking will be made available in the following formats:
Large print, Braille, electronic file on computer disk, and audiotape.
To schedule an appointment to review the comments and/or to obtain this
Advance Notice of Proposed Rulemaking in an alternate format, contact
OFCCP at the telephone numbers or address listed above.
FOR FURTHER INFORMATION CONTACT: Barbara J. Bingham, Acting Director,
Division of Policy, Planning and Program Development, Office of Federal
Contract Compliance Programs, 200 Constitution Avenue, NW., Room N3422,
Washington, DC 20210. Telephone: (202) 693-0102 (voice) or (202) 693-
1337 (TTY).
SUPPLEMENTARY INFORMATION: Federal contractors covered by section 503
of the Rehabilitation Act of 1973, as amended (Section 503) \1\ are
obligated to
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ensure equal employment opportunity for people with disabilities. In
addition, Section 503 requires Federal contractors to take affirmative
action to employ and advance in employment individuals with
disabilities. The existing Section 503 regulations require that covered
contractors:
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\1\ Covered contracts or subcontracts include those that exceed
$10,000, and contracts or subcontracts for indefinite quantities,
unless the purchaser has reason to believe that the cost in any one
year will not exceed $10,000.
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(1) Employ nondiscriminatory employment practices;
(2) Provide reasonable accommodations to qualified job applicants
and employees with disabilities;
(3) After a job offer is extended but before employment begins,
invite job applicants to voluntarily and confidentially self-identify
as to whether or not they have a disability in order to benefit from
any affirmative action programs covered contractors may have;
(4) Maintain personnel and employment records; and
(5) For those contractors and subcontractors with 50 or more
employees and a contract of $50,000 or more, develop and maintain a
written affirmative action program (AAP). Further information about the
current Section 503 regulatory requirements may be found at http://www.dol.gov/ofccp/regs/compliance/ca_503.htm.
Section 503 regulations promote equal employment opportunity for
applicants and employees with disabilities, yet the percentage of
people with disabilities not in the labor force as well as the
unemployment rate of people with disabilities are high. According to
recent data from the U.S. Department of Labor's Bureau of Labor
Statistics, the percentage of people with disabilities in the labor
force in March 2010 was 22.5 compared with 70.2 for persons with no
disability. The unemployment rate for those with disabilities was 13.9
percent, compared with 10.1 percent for persons with no disability, not
seasonally adjusted. Regulations implementing Section 503 have not
undergone a comprehensive review and revision since May 1, 1996. It is
time for OFCCP to reexamine its affirmative action provisions under
Section 503 to make them more effective and to help ensure that more
people with disabilities are employed and are given the opportunity to
advance in employment in the Federal contracting labor force.
Determining how covered contractors can effectively increase
employment opportunities for people with disabilities requires an
understanding of the range of successful evidence-based practices
employers use to recruit, hire, retain, and advance people with
disabilities in employment. Among the key factors in measuring progress
in this area is the existence of current and discrete statistical
information that is valid and reliable. In an effort to enhance the
affirmative action provisions under Section 503, OFCCP is considering
adopting measures similar to those required under the Executive Order
11246 program for supply and service contractors. Under that program,
covered contractors are required, among other things, to compare the
percentage of women and minorities in each job group at an
establishment with the availability of women and minorities to work in
the job group. Availability is a percentage estimate of those women and
minorities who are qualified for employment in the job group within the
relevant recruitment area. Contractors typically rely on Census Bureau
data, state employment service data, and college graduation data in
developing their availability factors.
Before publishing a proposed regulation, OFCCP seeks comments from
members of the public on the issues under consideration to assist with
making informed decisions regarding proposed regulatory changes. As a
first step towards this goal, OFCCP conducted a Web based listening
session and three Town Hall listening sessions in Chicago, San
Francisco and New Orleans offering information on how interested
stakeholders could participate in the official rulemaking process, and
providing an opportunity for stakeholders to offer suggestions and
recommendations for strengthening the equal employment opportunity and
affirmative action requirements of Section 503. In developing a notice
of proposed rulemaking to amend the Section 503 regulations, OFCCP will
consider comments elicited in those listening sessions and information
provided in response to this ANPRM.
The second step towards publishing a notice of proposed rulemaking
is to request comments and data from the public on the following
issues.
Request for Comments
OFCCP is seeking public comment on the following inquiries:
1. How can the affirmative action requirements of Section 503 be
strengthened to measurably increase employment opportunities of covered
contractors for individuals with disabilities? If available, include
examples or information illustrating the effectiveness of the suggested
new requirements.
2. What measures have contractors and subcontractors taken to
fulfill the current affirmative action requirements of Section 503? How
much did these measures cost?
3. What barriers currently impede Federal contractors from hiring
people with disabilities?
4. Are there changes that could be made to the existing language on
permissible qualifications standards \2\ that would better ensure equal
employment opportunities for individuals with disabilities?
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\2\ 41 CFR 60-741.44b & c--Required contents of affirmative
action programs. To view, go to http://www.dol.gov/dol/allcfr/Title_41/Part_60-741/41CFR60-741.44.htm.
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5. If OFCCP were to require Federal contractors to conduct
utilization analyses and to establish hiring goals for individuals with
disabilities, comparable to the analyses and establishment of goals
required under the regulations implementing Executive Order 11246, what
data should be examined in order to identify the appropriate
availability pool of such individuals for employment?
6. Would the establishment of placement goals for individuals with
disabilities measurably increase their employment opportunities in the
Federal contractor sector? Explain why or why not.
7. What experience have Federal contractors had with respect to
disability employment goals programs voluntarily undertaken or required
by state, local or foreign governments?
8. What specific employment practices have been verifiably
effective in recruiting, hiring, advancing, and retaining individuals
with disabilities?
9. To what extent does workplace flexibility, including flexibility
in work schedules, as well as job-protected leave, impact recruitment
and retention of individuals with disabilities?
10. Has training of employees and/or managers been effective in
increasing advancement and/or retention of individuals with
disabilities? If so, how?
11. Federal contractors are required to invite all job applicants
to voluntarily and confidentially identify their race and gender pre-
offer. The collection of this information allows contractors to monitor
the impact of their employment practices by race and gender and to
assess progress in meeting their affirmative action goals. Existing
Section 503 regulations require contractors to invite applicants to
voluntarily and confidentially self-identify as a person with a
disability after making an offer of employment but before the applicant
begins employment. (See 41 CFR 60-741.42(a).) Would amending the
Section 503
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regulations to require contractors to invite all applicants to
voluntarily and confidentially self-identify if they have a disability
prior to an offer of employment enhance a federal contractor's ability
to more effectively monitor their hiring practices with respect to
applicants with disabilities? Note that a Section 503 regulation
requiring contractors to invite voluntary and confidential self-
identification as an applicant with a disability pre-offer for
affirmative action purposes would not violate the Americans with
Disabilities Act. 29 CFR 1630.15(e); Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations
(EEOC Notice Number 915.002, October 10, 1995).
12. How can linkage agreements between Federal contractors and
organizations that focus on the employment of individuals with
disabilities be strengthened to increase effectiveness? Do linkage
agreements have better outcomes when higher level company officials are
responsible for their implementation/execution? Include examples of
cooperative agreements between employers and disability or community
recruitment organizations that have been helpful in hiring persons with
disabilities.
13. What impact would result from requiring that Federal
contractors and subcontractors make information and communication
technology used by job applicants in the job application process, and
by employees in connection with their employment fully accessible and
usable by individuals with disabilities? \3\ What are the specific
costs and/or benefits that might result from this requirement?
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\3\ For example, requiring that contractors ensure that
application and testing kiosks are fully accessible and usable by
individuals with disabilities, and that contractors strive to ensure
that their Internet and Intranet Web sites satisfy the United States
Access Board's accessibility standards for technology used by the
Federal Government and subject to section 508 of the Rehabilitation
Act.
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14. What other specific changes to the Section 503 regulations
might improve the recruitment, hiring, retention, and advancement of
individuals with disabilities by Federal contractors?
15. Regulatory Flexibility Act--Consistent with the Regulatory
Flexibility Act, the Department must consider the impacts of any
proposed rule on small entities, including small businesses, small
nonprofit organizations and small governmental jurisdictions with
populations under 50,000. In response to this ANPRM, the Department
encourages small entities to provide data on how additional
requirements under Section 503 may impact them.
16. OFCCP seeks public comment on the types of small entities and
any estimates of the numbers of small entities that may be impacted by
this rule.
17. OFCCP seeks public comment on the potential costs of additional
503 requirements on small entities.
18. OFCCP seeks public comment on any possible alternatives to the
proposed measures that would allow the agency to achieve their
regulatory objectives while minimizing any adverse impact to small
businesses.
OFCCP encourages any interested party to comment on these questions.
Patricia A. Shiu,
Director, Office of Federal Contract Compliance Programs.
[FR Doc. 2010-18104 Filed 7-22-10; 8:45 am]
BILLING CODE 4510-CM-P