For the past forty years, the OFCCP has enforced the laws requiring federal contractors and subcontractors to affirmatively recruit, hire, train, and promote qualified veterans and people with disabilities. For the first time, however, the OFCCP has created metrics requiring contractors to establish annual hiring benchmarks and utilization goals for these same groups – effectively creating additional affirmative action obligations. Touting the new rules as increasing employer access to "a large, diverse pool of qualified candidates," the OFCCP and the Department of Labor overlook the fact that the rules are, in reality, an added burden on federal contractors

Federal contractors were already required to statistically track employment of women and minorities and to work towards equal employment opportunity for qualified veterans and individuals with disabilities. Now, based on new rules issued by the OFCCP, the approximately 200,000 contractors will be required to add extra columns to their tracking and recordkeeping requirements:

  • the total number of job openings and jobs filled;
  • the total number of job applicants for all jobs and the number of applicants known to be veterans or to have disabilities; and
  • the total number of applicants hired and the total number of individuals with disabilities and veterans hired.

Specifically, the final rules under the Vietnam Era Veterans' Readjustment Assistant Act requires contractors to establish hiring standards for veterans based on either "the current national percentage of veterans in the workforce" or their "own benchmark based on the best available data" and factors unique to their establishments. The current national percentage of veterans in the workforce, according to the OFCCP, is 8%. The rule increases accountability and record-keeping requirements, and it changes the way individuals are asked to self-identify. Prior to the new rules, contractors were required to offer applicants the opportunity to self-identify their veteran status post-offer. Under the new rules, contractors must offer candidates the opportunity to self-identify both before and after the offer phase in the application process. Contractors must also use specific language to push down the veteran requirements to any subcontractors, and they must use specific formats for listing job openings with local and state job services.

The final regulations under Section 503 of the Rehabilitation Act require contractors to establish a nationwide utilization goal of 7% for disabled individuals in each job group of their workforce and to conduct annual utilization analyses for such individuals. For contractors with less than 100 employees, the 7% goal is applied to the whole workforce as opposed to each job group. Currently, the unemployment rate for working-age individuals with disabilities is 15% – almost twice the rate for working-age individuals without disabilities. The rule also details specific actions contractors must take in the areas of recruitment, training, record keeping, and policy dissemination, including requiring contractors to invite current employees to self-identify as an individual with a disability every five years and to invite applicants to self-identify both before and after the offer phase in the application process. It is unclear how this self-identification requirement will apply in light of the EEOC's regulations prohibiting disability-related inquiries.

The new rules, which go into effect 180 days after they are published in the Federal Register, appear to be all bark and no bite. The goals and benchmarks are "aspirational" only. If contractors do not meet the goals, they will not be subject to a fine, penalty, or any sort of sanction. Notwithstanding the lack of sanction, federal contractors and subcontractors should make preparations to begin implementing the new rules if they want to continue receiving the benefits of working with the federal government.

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