Monthly Archives: January 2013

January 30, 2013

EEOC Fails to Prove Credit Checks have Discriminatory Impact

By Mark B. Wiletsky

Is checking an applicant’s credit history discriminatory?  According to the Equal Employment Opportunity Commission (EEOC), using credit checks to screen out applicants may be discriminatory if it has a disproportionately significant impact on a protected group.  Although a court recently dismissed an EEOC lawsuit against an organization concerning its use of credit checks, the case should serve as a reminder to review your own policies and procedures with respect to using background and credit checks in the hiring process, as this is likely not the last time the EEOC or the courts will address the issue. 

EEOC Sues Claiming Use of Credit Checks Has Disparate Impact on Black Applicants

In December 2010, the EEOC sued Kaplan Higher Learning Education Corporation (Kaplan), alleging that Kaplan’s practice of using credit history in making hiring decisions has a disparate impact on Black applicants in violation of Title VII.  In other words, the EEOC asserted that Kaplan’s use of credit histories—while not facially discriminatory—had a disproportionate impact in terms of screening out Black applicants.  Kaplan, however, defended its use of credit histories in the hiring process.  It claimed that it used credit reports to assess applicants for financial and operational positions after discovering system breaches that allowed business officers to misappropriate student funds.  Kaplan asserted that it reviewed an applicant’s credit history to determine whether the individual is under “financial stress or burdens” that might compromise his or her ethical obligations. 

In order to provide statistical analysis showing disparate impact on Black applicants, the EEOC relied on its expert, Dr. Kevin Murphy, to analyze the applicant pool and those rejected due to their credit report.  Because the race of each applicant was not known, the EEOC’s expert tried to use other means to make determinations about the applicant’s race, even when it was not known. 

Kaplan asked the Court to exclude Dr. Murphy’s testimony and report and ultimately, dismiss the EEOC’s case, arguing that Dr. Murphy’s method of determining race was scientifically unsound.  The Court agreed. In the absence of any reliable, scientifically sound evidence to link the use of credit reports to race, the Court granted summary judgment to Kaplan.

Use of Credit Reports Going Forward

In the last four or five years, the EEOC has made an issue out of employers’ use of credit reports and criminal history records in hiring decisions, resulting in the filing of a number of lawsuits.  The EEOC’s track record in these cases, however, is mixed.  In an earlier case alleging disparate impact related to the use of criminal history records, the EEOC finally agreed to dismiss the case after more than three years while the federal court ordered sanctions of over $750,000 against the EEOC for continuing to litigate when it knew of fatal flaws in proving disparate impact.  (See EEOC v. Peoplemark, Inc., No. 08-cv-907 (W.D. Mich. 2008)).  On the other hand, the EEOC was able to obtain a $3.1 million settlement and policy revisions from Pepsi when it challenged Pepsi’s use of background checks in 2011.

Despite the EEOC’s spotty results in proving disparate impact in these background check cases, employers need to be careful and deliberate in how they use credit reports for hiring purposes.  Credit reports should be used only where job-related, such as for applicants seeking positions involving financial responsibility, high level managerial decisions or as required by law.  Conduct credit checks only after making a conditional job offer so as not to weed out candidates prematurely on the basis of credit.  Finally, be aware that eight states currently have statutory restrictions on the use of credit history in employment decisions so if you are located or are hiring in California, Oregon, Washington, Illinois, Maryland, Connecticut, Hawaii or Vermont, you will need to comply with those restrictions.

January 28, 2013

Expect More FMLA Requests for Leave to Care for an Adult Child as a Result of New DOL Guidance

By Mark B. Wiletsky

Employers will likely face additional requests by employees seeking leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves.  The Department of Labor (DOL) recently issued an Administrator’s Interpretation (AI), No. 2013-1, clarifying the definition of “son or daughter” under the FMLA as it relates to covered leave for an adult child with a serious health condition.  The AI also clarified FMLA leave to care for an adult child injured during military service.  Let’s take a look at what employers need to know.

FMLA Leave for Care of a Son or Daughter

The FMLA provides an eligible employee with up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition.  If the child is age 17 or younger, the employee requesting leave need only show that the child has a serious health condition and the employee is needed to care for the child.  However, if the child is age 18 or older, leave is available only if the child has a mental or physical disability and is incapable of self-care because of that disability. 

Four-part Test to Determine FMLA Leave for an Adult Child with a Disability

To determine whether a parent is entitled to take FMLA leave to care for their adult (age 18 or older) child, four criteria must be met.  The adult son or daughter must:

            1)  have a disability as defined by the Americans with Disabilities Act (ADA);

            2)  be incapable of self-care due to that disability;

            3)  have a serious health condition; and

            4)  be in need of care due to the serious health condition.

Disability Determination.  Because the FMLA regulations rely on the definition of disability found in the ADA, the first criteria will be met if the adult child has a physical or mental impairment that substantially limits one or more of their major life activities.  Because the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) expanded the definition of major life activities that lead to a disability determination, the issue of disability is not likely to require an extensive analysis.

Incapable of Self-Care.  The second criteria specifies that the adult child must require active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.”  In essence, this means that the individual needs help with daily activities such as bathing, grooming, dressing, eating, cooking, cleaning, shopping, maintaining their home, using a telephone, etc.  Determining whether an adult child is incapable of self-care due to their disability is a fact-specific analysis that must be made based on their condition at the time of the requested leave.

FMLA Serious Health Condition.  If the adult child meets the first two criteria in the test, the analysis turns to whether the child has a serious health condition, as defined by the FMLA.  This means the individual has an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.  In many cases, the impairments that meet the definition of disability under the ADAAA will also meet the definition of serious health condition under the FMLA.  However, it is important to note that the serious health condition does not have to be associated with the individual’s disability (e.g., a broken leg may be the serious health condition for an individual whose disability is cancer).

Care Needed.  Finally, the parent requesting leave must be needed to care for the adult child with a serious health condition.  This threshold is relatively low as the term “needed to care” can include providing transportation for doctor appointments, preparing food and offering psychological comfort and reassurance.

Age at Onset of Disability Doesn’t Matter

An important clarification made by the DOL is that the disability of the child does not have to have occurred or been diagnosed before the child turned 18 years old.  For purposes of FMLA leave, it does not matter when the disability commenced.  The DOL believes this interpretation is consistent with the legislative history and purpose of the FMLA.

Caring for Adult Children Injured During Military Service

Under the FMLA military caregiver provision, the parent of a covered servicemember who incurred a serious injury or illness during military service may take up to 26 weeks of FMLA leave in a single 12-month period.  Recognizing that the impact of the injury may extend beyond a single 12-month period, the DOL clarified that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years due to the adult child’s serious health condition, provided all other FMLA requirements are met.

What Do I Do Now?

With the potential influx of new FMLA leave requests related to the care of an adult child, review your FMLA policies and procedures now to ensure that they are consistent with the new DOL guidance.  Train your human resource professionals and any supervisors who handle leave requests to recognize the issues associated with leave for the care of an adult child. And finally, given the complexities involved in this four-part test, consult with your legal counsel when faced with a leave request to care for an adult child.

January 25, 2013

President’s Recess Appointments to NLRB Unconstitutional

by Steven M. Gutierrez and Brian M. Mumaugh

The United States Court of Appeals for the District of Columbia issued the long anticipated ruling in the Noel Canning v. National Labor Relations Board case. In this case, Noel Canning ("Canning") asked the Court to review a decision by the National Labor Relations Board ("NLRB"), finding that Canning violated the National Labor Relations Act by refusing to sign a collective bargaining agreement reached with a Teamsters local union. While a review of an NLRB decision is considered by some routine, this case was not. In addition to Canning's arguments that the findings in the case were not supported by the evidence presented at hearing or the law (both arguments rejected by the D.C. Circuit), Canning also questioned the authority of the NLRB to issue its order on two constitutional grounds – (1) that the NLRB lacked authority to act because it did not have a quorum since three members of the five-member board were illegally appointed by the President without Senate confirmation as recess appointments and (2) the vacancies filled by the purported recess appointments did not actually happen during a recess of the Senate, as required under the Recess Appointments Clause of the U.S. Constitution.

Appointments Were Invalid Because They Were Not Made During "the Recess"

Under the Recess Appointments Clause, the President has the power "to fill up all Vacancies that may happen during the Recess of the Senate, . . . ." In this case, the D.C. Circuit Court concluded that President Obama's January 2012 alleged recess appointments to the NLRB of Board Members Sharon Block, Terence Flynn and Richard Griffin were not made during "the Recess" of the Senate. Instead, the January 4 appointments were made when the Senate was operating pursuant to a unanimous consent agreement that provided the Senate would meet in a pro forma session every three business days from December 20, 2011 through January 23, 2012. Because the Senate acted to convene the 112th Congress on January 3 — fulfilling a constitutional mandate that the Senate convene on that day — under the Appointments Clause of the U.S. Constitution, nominations of Officers of the United States made by the President require the advice and consent of the Senate.

Here, the recess appointments were made by the President on the claim that, although the Senate must give its advice and consent to any appointment, the Senate was not in session (and in a de facto recess) because the Senate's pro forma sessions occurred during the holiday season when the Senators were not actually present in the Senate Chamber. Therefore, the President claimed that the appointments were valid under the Recess Appointments Clause. Rejecting this argument, the D.C. Circuit reasoned that the term "the Recess" of the Recess Appointment Clause is by definition the period of time the Senate is not in session and therefore unavailable to receive and act upon nominations from the President. The Recess Appointments Clause has strict limits and appointments under this clause can be made only when the Senate is between sessions, not during a routine adjournment, a long weekend or a lunch break during regular workings sessions of the Senate and certainly not when the President unilaterally decides that the Senate is unavailable. Thus, the term "the Recess" is limited to intersession recesses. The D.C. Circuit Court pointed out that the Senate's role through advice and consent serves an important function as a check upon the President's power.

Appointments Also Invalid Because They Did Not Arise During the Recess

The D.C. Circuit went on to conclude that the appointments were also invalid because they did not actually "happen" during a recess. The three seats the President attempted to fill had become vacant on August 27, 2010, August 27, 2011 and January 3, 2012. The NLRB argued that these vacancies could be filled under the Recess Appointments Clause because the vacancies existed during the alleged recess. The Court, however, agreed with the employer and ruled that the vacancies must arise during the Recess, not just extend into the recess period. To rule otherwise would mean that a President could fill any vacancies during the Recess regardless of when the vacancy arose, meaning that a President would never have to submit nominees to the Senate for confirmation. The Court found that these three Board member vacancies did not arise during "the Recess" for purposes of the Recess Appointments Clause. Because the vacancies did not happen during an intersession recess and these appointments were made after Congress began a new session on January 3, the recess appointments were invalid. Without the three recess appointments, the NLRB lacked its required quorum of three members when it issued its decision in the Canning matter on February 8; therefore, the decision and order must be vacated.

Consequences of Invalidating the NLRB Appointments

The result of this decision is yet to be determined, but it certainly is a decisive blow to the President who, by appointing members to the NLRB in such a controversial fashion, opened the door to a historic ruling that his appointments were unconstitutional. Because the decision finds the appointments invalid from their inception, the more than 200 decisions issued since January 4, 2012 listed on the NLRB website may also be invalid. 2012 marked a year in which the NLRB made several highly publicized and controversial decisions concerning social media, at-will disclaimers and the reversal of some long-standing labor law. The President is surely going to be disappointed and whether the NLRB's direction is going to change the direction it appeared to go will depend largely on the make-up of the Board in the years to come.

January 14, 2013

ADA Reasonable Accommodations Require an Interactive Proces

by Mark B. Wiletsky

Although some say talk is cheap, that saying does not apply when evaluating an employee’s request for a job accommodation under the Americans with Disabilities Act (“ADA”).  Instead, it is important to engage in an open discussion with the disabled employee; failing to do so can easily land your organization in court.  A Texas school district recently learned that lesson when a federal judge ruled that discharging a disabled classroom aide without engaging in a good faith interactive process regarding reasonable accommodations could result in liability for the district for a violation of the ADA.  Nelson v. Hitchcock Indep. Sch. Dist., No. 3:11-CV-00311 (S.D. Tex. Dec. 21, 2012).

Disabled employee needed accommodation after exhausting FMLA leave.  Iris Nelson had worked for the Hitchcock Independent School District (“District”) as a teacher’s aide for the Head Start program since 1996.  In February 2009, Nelson learned she needed to have knee replacement surgery on both knees due to severe bilateral knee arthritis.  Nelson soon took leave covered by the Family and Medical Leave Act (“FMLA”) for surgery on her right knee.  In August 2009, shortly before the new school year was to begin, Nelson met with the District’s payroll and benefits supervisor, Theresa Fails, to request another two-and-one-half months off for surgery on her left knee.  Fails informed her that she had exhausted her FMLA leave and would not be eligible for additional leave until the following year. 

Nelson claims that she told Fails that she would work using a cane or a walker until she became eligible for more leave but Fails allegedly responded that she could not use walking aids.  Nelson also stated that she would just have to take pain pills, a suggestion Fails supposedly refused as well.  After the meeting, Fails notified the District’s interim Head Start director and the school superintendent of the conversation and recommended that until a doctor’s note could be obtained and a decision made, Nelson should not be allowed to return to work.

Without hearing anything more on her accommodation request, Nelson returned to work on August 17, 2009 and filed a form requesting leave which would begin on August 20, 2009.  Nelson did not receive a response to her leave request and unilaterally took off to have her surgery on August 23, 2009.  On August 25, 2009, the District’s superintendent sent Nelson a letter denying her leave request, noting that she had exhausted her FMLA entitlement.  Six days later, the superintendent sent Nelson a notice of termination, informing her that her “employment with Hitchcock ISD has been terminated for being unable to perform the essential functions of your job.”  Not surprisingly, Nelson sued, claiming that the District violated the ADA when it terminated her instead of accommodating her disability. 

Court finds evidence that District failed to engage in ADA-required interactive process.  The Court concluded that Nelson’s ADA claim could proceed to trial as Nelson presented sufficient evidence that the District never engaged in the communication and good faith interactive process regarding her accommodation requests that is required under the ADA.  The Court noted that Nelson offered to postpone her surgery had she been allowed the accommodation of using a cane, walker or pain pills.  Although the District argued that it would have been unreasonable to allow Nelson to supervise children while using a walking aid or while under the influence of pain medications, the Court ruled that it need not reach a reasonableness determination because the District had failed to engage in the required interactive process that would have allowed the District to assess the alternate accommodations.  The Court pointed out that had the District discussed the alternatives with Nelson, it could have clarified whether she needed a walking aid or pain pills or both, whether any over-the-counter medications would have been sufficient and what the side effects of any required dosage would be.  Only by engaging in that dialog could the District determine whether Nelson’s requested accommodations would impose an undue hardship on the District. 

Lessons learned.  When faced with an accommodation request, employers should not jump to deciding whether the proposed solution places an undue burden on the company, without first actually talking to the employee and seeking further input from the employee if the proposed solution seems unreasonable or unworkable.  Employers must engage the employee in an interactive dialog to discuss what would allow the employee to perform the essential functions of their job.  Remember, when it comes to reasonable accommodations under the ADA, there is often more than one way to skin a cat.  The first accommodation requested may not be the only, or even the best accommodation for a particular disabled employee.  By including the affected employee in the accommodation process, employers meet their ADA obligation while exploring the options that could allow the employee to stay on the job.  You may not always reach a solution that works for both parties, but as long as you try in good faith—and appropriately document your efforts—it is much harder for the employee to attack your process and actions in a lawsuit down the road.

January 11, 2013

NLRB Further Undermines Workplace Investigation Confidentiality

by Chris Chrisbens

Banner Health:  Blanket Confidentiality Violates NLRA Section 7

The National Labor Relations Board (NLRB) in July 2012 held that a blanket approach requiring confidentiality during all workplace investigations violates employees’ concerted activity rights under Section 7 of the National Labor Relations Act (NLRA).  Banner Health Systems and James A. Navarro.  In Banner,the NLRB said that at the outset of each investigation employers must carefully balance whether a confidentiality requirement truly is warranted under the specific circumstances, or whether it would unfairly impinge on employees Section 7 rights.  Only where a need for confidentiality outweighs Section 7 rights can confidentiality be required.  Regrettably, the NLRB’s analysis at least implied that the relevant factors weighing in favor of confidentiality are whether witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.  The NLRB provided no guidance as to whether or not any additional factors, or what other factors, might be important in justifying a confidentiality instruction.

In particular, the NLRB in Banner did not discuss overarching factors which generally warrant confidentiality in most workplace investigations, including encouraging witness and complainant participation. 

American Baptist:  Witness Statements Not Automatically Confidential

The NLRB recently took another step undermining investigation confidentiality by overruling a 34-year-old bright-line exception that witness statements generated during an employer’s investigation of employee misconduct need not be disclosed to the employee’s union. American Baptist Homes and Service Employees International Union.  The NLRB reasoned that witness statements are not fundamentally different from witness identities and job titles which must be disclosed, absent the employer’s proof of a countervailing need for confidentiality, pursuant to its general obligation to provide unions with relevant information necessary to perform union duties.  NLRB rejected the bright line in favor of the unpredictable balancing test applicable to witness identities and job titles:  whether substantial employer interests concerning confidentiality, witness coercion, harassment or
retaliation outweigh the union’s need for the information in the particular case.   Significantly, an employer’s policy and practice of keeping such investigation information confidential is not, alone, a substantial confidentiality interest. 

In contrast to Banner, the Board expressly rejected the argument that the witness statement exception is consistent with EEOC Guidelines and “protects the integrity of the arbitration process, protects employee witnesses who participate in workplace investigations from coercion and intimidation, and enables employers to conduct effective investigations into workplace misconduct.”  Likewise, although it acknowledged “the risk that employers or unions will intimidate or harass those who have given statements, or that witnesses will be reluctant to give statements for fear of disclosure,” the Board was not persuaded that a balancing test enhances those risks or discounts the EEOC Guidelines.  The “balancing test is designed to take into account any legitimate and substantial confidentiality interest that an employer may have, which would include concerns about witness intimidation or compliance with EEO guidelines.” 

It seems to this investigator, however, that the NLRB has grossly discounted the chilling effect a lack of confidentiality, or at least uncertainty about confidentiality, has on employees, both those who may be complainants and those who may have valuable information necessary to an investigation.  Employee witnesses and even complainants are often genuinely concerned about the effect a lack of
confidentiality may have on them and are inclined to selectively disclose information based on such concerns.  Moreover, witness statements are fundamentally different than identity and job title because they can reveal exactly what a witness has said, providing fodder for retaliation and intimidation, rather than just the fact that the person was a witness who provided unspecified information. 

Also significant to the NLRB’s holding on the facts of the American Baptist case was that only two
of three investigation witnesses were asked to provide investigation statements and specifically told that their statements would be kept confidential.  A third witness volunteered her statements and was never specifically assured of confidentiality, although she relied on her employer’s investigation confidentiality policy.  Because the third witness had not been specifically assured of confidentiality, NLRB ruled that her statements did not qualify as “witness statements” subject to the disclosure exception it prospectively overruled. 

Employers in Double-Bind?

These two rulings appear to put employers in a double-bind.  At the outset it is not often clear in what direction a workplace investigation will lead; what might happen during (or after) an investigation to trigger confidentiality concerns or retaliation; or on what particular grounds confidentiality might truly be necessary in retrospect.  That is at least in part exactly why a blanket approach to investigation confidentiality is important, necessary and has been the preferred practice encouraged by the EEOC’s Guidelines.  Moreover, an employer’s general policy of investigation confidentiality supports an employer’s complaint procedures by encouraging timely, legitimate complaints and fosters its ability to fulfill the duty to promptly investigate and address EEO and other legal issues. 

To the contrary, the Banner and American Baptist rulings suggest that at the outset of an investigation, employers must be able to particularly identify specific factors warranting confidentiality before it can assure complainants and witnesses that the investigation and their statements will be kept as confidential as practicable. Without that information the Banner ruling suggests that you cannot require investigation confidentiality without possibly impinging upon concerted activity rights.  And, according to American Baptist, without such an assurance of confidentiality prior to giving the statement, it may not qualify as a “witness statement” subject to protection from union disclosure. However, it is not always, or often, possible at the outset of the investigation to specifically identify such factors that could justify confidentiality.  Double-bind.  The mere possibility of confidentiality may be little consolation to employees genuinely concerned about confidentiality and reluctant to participate.  But, that appears to be the protection the NLRB now sees fit to afford employee statements.    

So, What Now? 

Certainly these rulings require employers to proceed cautiously and pay particular attention to and document confidentiality concerns and issues.  You may want to think about taking a number of steps to make a confidentiality requirement during an investigation more likely to pass NLRB muster, including:

  • Limiting confidentiality instructions to investigations of complaints and issues that implicate or are likely to implicate EEO or other legal issues or when investigation integrity is a particular concern;
  • Specifically considering and documenting why confidentiality is necessary to a particular investigation;
  • Asking complainants and witnesses to share any fact-based concerns regarding confidentiality, intimidation, retaliation or other concerns that could warrant confidentiality.  It is at times the case employees have generalized fears not supported by facts so investigators must probe for facts that might support such a concern;
  • Documenting and addressing instances of intimidation, harassment and other issues that might implicate and justify confidentiality concerns in future investigations;
  • Tailoring the confidentiality requirement to the specific subject matter of the investigation and matters discussed in investigatory interviews and statements while the investigation is ongoing;
  • Limiting the confidentiality instruction to employees who will or are likely to be interviewed during the investigation because they have personal knowledge of events or other directly relevant information;
  • Clarifying that the employer cannot guarantee confidentiality but that it will maintain confidentiality as practicable under the circumstances and as permitted by law;
  • Clarifying that the confidentiality restriction is not intended to prevent employees from addressing concerns with one another or with the employer; and
  • Explaining to witnesses that the purpose of the confidentiality restriction is to:
    • Preserve the integrity of the investigation process;
    • Encourage employees to speak up when they have a problem and give them confidence that they may speak the truth;
    • Uphold your anti-retaliation policy; and 
    • Allow you to conduct thorough and objective investigations which, in turn, allow you to effectively address employee complaints and concerns and resolve workplace conflict.

It also may be appropriate to forgo the threat of discipline for individuals who breach confidentiality.

Chris Chrisbens is the lead attorney for Holland & Hart’s Affirmative Action Planning and Office of Federal Contract Compliance Programs (OFCCP) service. He can be reached at fcchrisbens@hollandhart.com or 303-295-8193.

January 4, 2013

OFCCP Says April 2013 for Final Veterans and Disabled Regulations

by Chris Chrisbens

The Department of Labor recently released its fall 2012 Regulatory Agenda, including the agenda of the Office of Federal Contract Compliance Programs (OFCCP).  Chief among the OFCCP’s projections is the publication of final regulations governing affirmative action for veterans and the disabled in April 2013

In April and December 2011, OFCCP caused tremendous ongoing clamor in the federal contractor community when it issued proposed regulations significantly increasing documentation, data collection, recordkeeping and other requirements concerning veteran and disabled affirmative action.  Federal contractors subsequently provided critical comments and since then, OFCCP has left federal contractors hanging in doubt and turmoil for over a year.  In April 2012, the U.S. House of Representatives Subcommittee on Health, Employment, Labor, and Pensions conducted a hearing
concerning the proposed regulations where three of four witnesses described them as "extraordinarily” burdensome and lamented the “staggering” financial burden of compliance. 

While it remains to be seen whether the critical comments impact the final regulations, and whether OFCCP meets the April 2013 projection, it is clear from the outcome of the presidential election, and now the Regulatory Agenda, that some form of the regulations will soon take effect.  Given the additional burdens any version of the final regulations is likely to impose, it would be wise to
become familiar with the proposed regulations as they stand today, as well as assess existing systems, processes and procedures (particularly applicant tracking and outreach efforts) in light of the proposals.    

Probably the most notable proposals are the goal and benchmarks:  (1) a 7% utilization goal per job group for employees with disabilities; and (2) an annual hiring benchmark for protected veterans expressed as the “percentage of total hires who are protected veterans that the contractor seeks to hire in the following year.”  Contractors will set their own veteran hiring benchmarks based on a documented analysis of a number of veteran availability statistics, some provided by OFCCP and some based on data contractors will be required to collect and maintain, including a veteran referral
ratio, applicant ratio, and hiring ratio for the previous year. 

In order to collect that data, contractors will for the first time invite applicants to self-identify as a “protected veteran” and/or as a person with a disability on an OFCCP-approved form.  Contractors will continue to invite new hires to identify membership in a specific “protected veteran” category, and to identify a specific disability, also on an OFCCP-approved form.  Contractors will also conduct an annual, anonymous survey of employees inviting them to identify as a person with a
disability. 

A major emphasis of the proposed regulations is requiring contractors to take specific steps to fulfill their existing affirmative action obligations, document their efforts, and include such documentation as part of their written affirmative action plan (AAP). This change will affect the review of personnel processes and job qualifications; outreach and recruitment efforts; internal dissemination of the
policy; the audit and reporting system; and the training of all personnel involved in affirmative action. 

Another controversial and onerous new proposal is the requirement that contractors develop detailed, written accommodation procedures which would be included in the AAP.  Contractors would be required to distribute the procedures to all employees, train managers and supervisors on the procedures, and notify applicants of accommodation procedures regarding the application process. 

In addition, the procedures would need to contain specific elements too numerous to list here.   For
instance, a request for accommodation may be written or oral and could be made by a third party; a request could be made to any supervisor or manager in the employee’s chain of command; contractor’s must provide written acknowledgement of receipt of a request; a response deadline of 10 business days or 30 calendar days depending on whether medical documentation is needed; and written notice of any denial detailing the reasons and notifying the requester of her right to
file a complaint with OFCCP. 

While the OFCCP will no doubt give federal contractors time to prepare before the final veterans and disabled regulations take effect, some advanced knowledge and organization will not only enhance success in meeting your current obligations but will also help you avoid pitfalls when the final
regulations land on your desk with a thud.  

For assistance with affirmative action planning and OFCCP compliance, please contact Chris Chrisbens.  Please also look for Holland & Hart briefing sessions once the final regulations are published.