Veterans with Disabilities Need Multi-Prong Approach for Employment, EEOC Told at Meeting

US Equal Employment Opportunity Commission
PRESS RELEASE
11-16-11

Commission Also Votes to Approve Age Discrimination Regulations

WASHINGTON—Veterans with disabilities have unique needs in transitioning to and retaining civilian employment, and many are unaware that they are protected by the Americans with Disabilities Act (ADA), a panel of experts told the U.S. Equal Employment Opportunity Commission (EEOC) at a public meeting held today. The panel included representatives from the Department of Veterans Affairs (VA), Department of Labor (DOL), Office of Personnel Management (OPM), Department of Defense (DOD) and private sector stakeholders, including the U.S. Chamber of Commerce. The meeting was one of a series the EEOC has held to examine barriers to employment.
“Today’s Commission meeting provided an important opportunity to learn effective ways to remove barriers to employment for veterans with disabilities,” said EEOC Chair Jacqueline A. Berrien.
“Veterans with disabilities often remain a distinct segment of the disability community, which challenges traditional avenues of outreach,” said Heather Ansley of the Consortium for Citizens with Disabilities. Moreover, veterans with disabilities “are not immune to the myths that surround the employment of people with disabilities.”
Panelists pointed out the important role of employment in easing a veteran’s return to civilian life and recovery from injuries. The VA and DOL have programs providing vocational rehabilitation services and job training for veterans with disabilities. DOL also enforces a specific law prohibiting discrimination against former service members—the Uniformed Services Employment and Reemployment Act. Additionally, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) insures that federal contractors comply with laws giving veterans priority referrals to job openings and not discriminate on the basis of disability, Claudia Gordon, special assistant to OFCCP director Patricia Shiu told the Commission.
Ruth Fanning, Director of Vocational Rehabilitation and Employment Services for the VA, stressed the need for early intervention in the transition from active duty to civilian life. Encouraging injured veterans to plan and work toward civilian career goals “reduces the risk of homelessness, underemployment, or unsuitable employment after discharge from the military.” As George M. Parker, Director of Compliance and Investigations of the Veterans Employment and Training Service (VETS) of the DOL put it, “for wounded and injured veterans, employment can play a significant role in the road to recovery.”
Disabled veterans face special challenges, a number of panelists told the Commission, especially those returning from service in Iraq and Afghanistan who may have traumatic brain injuries (TBI) or post-traumatic stress disorder (PTSD), which many employers do not know how to accommodate. The DOL’s Job Accommodation Network (JAN) provides special resources for employers who need to learn more about how to accommodate veterans with PTSD and TBI, said Anne Hirsh, JAN’s co-director.
Ironically, the increased attention to veterans with conditions like TBI, PTSD and other mental health issues has made some employers hesitant to hire veterans at all, believing that all veterans are likely to have these conditions, Ansley told the Commission. Stereotypical views of mental health issues, rooted in suspicion and fear, “often lead to widespread discrimination against people with conditions like PTSD.”
The EEOC works to combat these myths and stereotypes about veterans with disabilities, said EEOC Senior Attorney-Advisor Joyce Walker-Jones. In 2008, the Commission issued two guides—one for veterans, the other for employers—explaining how the ADA and USERRA protect veterans with disabilities. “We issued the guides because we wanted veterans to know what the ADA is, and employers to know that many veterans with disabilities are able to—and want to—work,” she stated.
Other panelists included Dinah Cohen, Director of the Computer/Electronic Accommodations Program of the Department of Defense, and Ray Decker, Assistant Director for Veterans Services at the U.S. Department of Personnel Management.
In an unrelated matter, the Commission voted 3—2 at the meeting to approve the “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” under the Age Discrimination in Employment Act. The regulation now goes to the U.S. Office of Management and Budget (OMB) for review. Upon OMB approval, the text of the regulation will be made public in the Federal Register.
The EEOC enforces the federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.

http://www.eeoc.gov/eeoc/newsroom/release/11-16-11.cfm

EEOC TO FINALIZE PROPOSED RULES ON THE ADEA

OFCCP Blog Spot
by Art Gutman Ph.D., Professor, Florida Institute of Technology

The proposed rules (or simply “Rules”) were published on 2/18/10, as reported in an Alert on 3/2/10. The Rules may be viewed at http://edocket.access.gpo.gov/2010/2010-3126.htm. The vote to finalize the Rules is scheduled for 11/16/11, the call for which is at http://www.eeoc.gov/eeoc/newsroom/release/11-9-11.cfm.The Rules themselves were written in response to Supreme Court rulings in Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Lab (KAPL) (2008). In Smith, a 5-4 Supreme Court majority ruled that: (1) that adverse impact is a valid ADEA claim and (2) the Factors Other Than Age (RFOA) defense (a lighter defense than job-relatedness in Title VII) is the appropriate defense in ADEA cases. In Meacham, a unanimous Supreme Court ruled that RFOA is an affirmative defense, meaning it requires proof (rather than a simple “articulation” or “explanation”). The Smith and Meacham rulings are discussed in detail by Gutman & Dunleavy (2008) (at http://www.siop.org/tip/Oct08/11gutman.aspx).

Full Story: http://ofccp.blogspot.com/2011/11/eeoc-to-finalize-proposed-rules-on-adea.html

SHRM Comments on Proposal to Collect Contractors' Comp Data

Society for Human Resource Management
Need for more pay data from federal contractors is questioned
10/14/2011


The Society for Human Resource Management (SHRM) filed comments with the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) on Oct. 11, 2011, regarding the agency's proposal to create a new compensation data collection tool for identifying potential compensation discrimination by federal contractors. The proposal was published in the Aug. 10, 2011, issue of the Federal Register.
According to the OFCCP, possible uses for the collected data include generating insight into potential problems of compensation discrimination by federal contractors and subcontractors that warrant further review or evaluation by OFCCP or a contractor self-audit.

Full Commentary: http://www.shrm.org/hrdisciplines/compensation/Articles/Pages/ContractorsCompData.aspx

VEVRAA NPRM COMMENT PERIOD EXTENDED

OFCCP Blog Spot

On April 26, 2011, the Office of Federal Contract Compliance Programs (OFCCP) published in the Federal Register a notice of proposed rulemaking (NPRM). This NPRM (76 FR 23358) proposes revising regulations implementing the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended.The original comment period is scheduled to end on Monday, June 27, 2011. After receiving several requests for extensions, OFCCP is extending the comment period for this NPRM for 14 days until Monday, July 11, 2011.

Full Blog Post: http://ofccp.blogspot.com/2011/06/vevraa-nprm-comment-period-extended.html

US Labor Department launches website for public feedback on regulations

U.S. Department of Labor
Office of the Assistant Secretary for Policy

OASP News Release: [03/16/2011]
Contact Name: David Roberts
Phone Number: (202) 693-5945
Release Number: 11-0386-NAT

WASHINGTON — The U.S. Department of Labor today announced the availability of a new online tool to collect public feedback on ways to improve regulations and the department's regulatory review process.
The online tool is part of the department's compliance with Executive Order 13563, which calls for federal agencies to detail how they will review existing significant regulations to identify whether regulations may be made more effective or less burdensome.
Members of the public who wish to provide comments or suggestions to improve Department of Labor regulations by modifying, streamlining, expanding or repealing them are encouraged to visit http://www.dol.gov/regulations/regreview.htm.
Comments must be received no later than March 31.

http://www.dol.gov/opa/media/press/asp/oasp20110386.htm

EEOC Seeks Public Comment on Plan To Review its Significant Regulations

U.S. Equal Employment Opportunity Commission
PRESS RELEASE 3-8-11

EEOC Seeks Public Comment on Plan To Review its Significant Regulations
WASHINGTON--The U.S. Equal Employment Opportunity Commission (EEOC) is inviting the public to comment as it develops a plan to review its significant regulations pursuant to Executive Order (EO) 13563, “Improving Regulation and Regulatory Review.” 76 Fed. Reg. 3821 (Jan. 21, 2011).
Executive Order 13563 directs each federal agency to develop "a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether such regulations should be modified, streamlined, expanded or repealed to make the agency's regulatory program more effective and/or less burdensome in achieving its regulatory objectives."
The EEOC is soliciting public comment to assist in the development of its plan to periodically review existing significant regulations, including input on factors the Commission should consider, the process it should use, and the specific regulations that should be reviewed in the next two years.
Public comments may be submitted to Public.Comments.RegulatoryReview@eeoc.gov through March 22, 2011. For more information regarding EEOC’s plan for retrospective analysis of significant regulations pursuant to EO 13563, see http://www.eeoc.gov/laws/regulations/comment_retrospective.cfm.
The EEOC enforces federal laws prohibiting employment discrimination. More information about the EEOC can be obtained at www.eeoc.gov.

http://www.eeoc.gov/eeoc/newsroom/release/3-8-11.cfm

EEOC Issues Genetic Information Nondiscrimination Act Final Regulations

U.S. Equal Employment Opportunity Commission
PRESS RELEASE
11-9-10

Law Prohibits Using Genetic Information to Make Employment Decisions

The U.S. Equal Employment Opportunity Commission (EEOC) today issued final regulations implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information. Title II of GINA represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act of 1990.
The regulations were approved by a unanimous vote of the Commission, and include clarifications and refinements made in response to comments received during the notice and comment period. "The final regulations implementing GINA reflect the concerted effort by all Commissioners to ensure that workers, job applicants and employers will have clear guidance concerning the implementation of this new law. These regulations are also a testimony to the tireless work of the late Paul Steven Miller, who was a Commissioner of the EEOC and a leader in the movement to protect individuals against discrimination based on family medical history or genetic information for many years," said EEOC Chair Jacqueline A. Berrien. The GINA regulations are the first issued by the EEOC since Chair Berrien and Commissioners Chai R. Feldblum and Victoria A. Lipnic joined Commissioners Stuart J. Ishimaru and Constance Barker on the Commission in April, 2010.
Congress enacted GINA with strong bipartisan support in 2008, in response to concerns that patients would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if such tests revealed adverse information. Title II of GINA prohibits employment discrimination based on genetic information, and restricts the acquisition and disclosure of genetic information. Genetic information includes information about individuals’ genetic tests and the tests of their family members; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology.
The final regulations provide examples of genetic tests; more fully explain GINA’s prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.
"I am pleased that the new Commission was able to complete the GINA regulations and make some common-sense changes based on the public record," said EEOC Commissioner Victoria A. Lipnic. "While fulfilling the law’s purpose to protect individuals from genetic discrimination, I believe these final regulations properly balance and reflect the needs and realities of the workplace and preserve the appropriate means for employers to offer health and wellness plans."
The Commission has also issued two question-and-answer documents on the final GINA regulations, one of which is aimed at helping small businesses comply with the law. Links to the regulations and to the questions-and-answers are on EEOC’s website, at http://eeoc.gov/laws/types/genetic.cfm

http://www.eeoc.gov/eeoc/newsroom/release/11-9-10.cfm

DOL Regulations on Internships

Workforce Management
Dear Workforce: How Do New Regulations on Internships Affect Our For-Profit Organization?The regulations apply to all employers—whether for-profit or not-for-profit companies. The purpose: to ensure that employers are not using the 'intern' label to avoid paying workers minimum wage and overtime.

Dear Workforce:
I know that federal regulations are tightening for internships at for-profit organizations. What do we need to know?

A. Your question is a timely one, as the Labor Department is stepping up its enforcement efforts concerning student intern programs. Although media reports may focus on the use of unpaid interns at large, for-profit companies, the regulations in this area apply to all employers—whether for-profit or not-for-profit companies. The purpose of the regulations is to ensure that employers are not using the “intern” label to avoid paying their workers the minimum wage and overtime.
The Labor Department applies a six-part test to determine whether an intern program is exempt from the minimum wage and overtime requirements of the wage-and-hour laws. To pass that test, you need to understand what a qualifying intern program is, and just as important, what a qualifying program is not.

Full Story: http://www.workforce.com/archive/feature/newsletters/dear-workforce-how-do-new-regulations-internships-affect/index.php

US DOJ Issues Revised ADA Regulations for Title II and III

Rolling Rains Report
By Scott Rains on August 15, 2010 5:36 AM

President Obama announced the U.S. Department of Justice has issued final regulations revising Title II and III, including the ADA Standards for Accessible Design. These regulations will be published in the Federal Register. (Remarks by the President: http://www.whitehouse.gov/the-press-office/remarks-president-20th-anniversary-americans-with-disabilities-act)

SUMMARY OF CHANGES:

Adoption of the 2010 ADA Standards for Accessible Design. The Department has adopted revised ADA design standards that include the relevant chapters of the Access Board's 2004 ADA/ABA Accessibility Guidelines as modified by specific provisions of this rule. To minimize compliance burdens on entities subject to more than one legal standard, these design standards have been harmonized with the Federal standards implementing the Architectural Barriers Act and with the private sector model codes that are adopted by most States.


Effective Date. The rule will become effective six months after publication in the Federal Register. Eighteen months after publication, compliance with the 2010 Standards will be required for new construction and alterations. In the period between the effective date and the compliance date, covered entities may choose between the 1991 Standards and the 2010 Standards. Covered entities that should have complied with the 1991 Standards during any new construction or alteration of facilities or elements, but have not done so by 18 months after the date of publication of the final rule, must comply with the 2010 Standards.

Full Report: http://www.rollingrains.com/2010/08/us-doj-issues-revised-ada-regulations-for-title-ii-and-iii.html

Justice Department Weighs Putting Web Sites Under Disability Rules

The Chronicle of Higher Education
July 28, 2010, 05:13 PM ET
By Marc Parry

The modern Internet did not exist when the Americans With Disabilities Act was enacted in 1990. Now the Justice Department is weighing changes to bring the landmark civil-rights law in line with the rise of the Web—a debate that could have implications for colleges.
The department this week announced that it is considering revising ADA regulations "to establish specific requirements for state and local governments and public accommodations to make their Web sites accessible to individuals with disabilities."
The announcement and call for public comment, preliminary as they are, drew celebration from WebAIM, an Internet-accessibility training and consulting nonprofit at Utah State University. Jonathan Whiting, the center's director of training and evaluation, described the move as "huge." Many colleges' digital materials are designed in a way that makes them difficult to use for people with disabilities, he says.

Full Story: http://chronicle.com/blogPost/Justice-Department-Weighs/25854/?sid=at&utm_source=at&utm_medium=en

US Labor Department seeks public input to strengthen disability regulations

News Release
OFCCP News Release: [06/09/2010]

Contact Name: Jesse Lawder Michael Volpe

Phone Number: (202) 693-4659 or x3984

Release Number: 10-1015-NAT
US Labor Department seeks public input to strengthen disability regulations

WASHINGTON — The U.S. Department of Labor's Office of Federal Contract Compliance Programs is seeking input from the public on ways to strengthen its regulations requiring federal contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities. In an Advance Notice of Proposed Rulemaking to be published in the Federal Register July 23, the agency invites the public to help revise the regulations implementing Section 503 of the Rehabilitation Act of 1973.
"Equal access to employment is a fundamental right of every American," said Secretary of Labor Hilda L. Solis. "It's time to update this regulation to ensure that everyone has access to good jobs, including individuals with disabilities."
The Section 503 regulations have required equal employment opportunity and affirmative action since the 1970s, yet the rate of disabled people who are unemployed or not in the labor force remain significantly higher than those without disabilities. According to recent data from the U.S. Department of Labor's Bureau of Labor Statistics, 21.7 percent of people with disabilities were in the labor force in June 2010, compared with 70.5 percent of people with no disability. In addition, the unemployment rate for those with disabilities was 14.4 percent, compared with 9.4 percent unemployment for those without a disability.
"Work is central to every person's financial independence, sense of self and integrity," said OFCCP Director Patricia A. Shiu. "OFCCP is re-examining its affirmative action regulations so that people with disabilities can be assured that federal contractors are proactively seeking them out for employment."
Topics on which comment is requested include:
What employment practices have been effective in recruiting, hiring, advancing and retaining qualified individuals with disabilities.
What data are available that could be used to establish hiring goals and conduct utilization analyses of individuals with disabilities.
How linkage agreements between federal contractors and organizations that focus on the employment of qualified individuals with disabilities can be strengthened to increase effectiveness.
Comments must be received by OFCCP within 60 days of the ANPRM's publication. To read the ANPRM or submit a comment, go to the Federal eRulemaking Portal at http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://www.regulations.gov&exitTitle=www.regulations.gov&fedpage=yes. The deadline for receiving comments is ­­Sept. 21, 2010.
OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 4212. These laws prohibit federal contractors and subcontractors from discriminating on the bases of race, color, religion, sex, national origin, disability and veteran status. They also require affirmative action in employment by federal contractors and subcontractors.

http://www.dol.gov/opa/media/press/ofccp/ofccp20101015.htm

OFCCP Hosts Webinar on NLRA Notification Regulations

Office of Federal Contract Compliance Programs

How To Comply With Executive Order 13496
Join us for a Webinar on June 3.

Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/696425736

Under a new Department of Labor regulation published on May 20, 2010, effective June 21, 2010 Federal contractors and their subcontractors are required to post notices informing employees of their rights under the National Labor Relations Act (NLRA).
These regulations implement Executive Order 13496, signed by President Obama on January 30, 2009, and require federal contractors to agree to post the required employee notice and to agree to insert provisions in their subcontracts that require their subcontractors to post the employee notice as well. The employee notice that must be posted and the contract provisions that must be inserted into Federal contracts and subcontracts can be found at 29 C.F.R. Part 471 Appendix A.
Please join the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) as we conduct a webinar for Federal contractors and subcontractors to provide them with information about how to comply with this new regulation.
This webinar is approximately 1.5 hours long that includes 30 minutes of Q&A opportunities. We invite you to e-mail us your questions in advance of the webinar.
Register for a session now by clicking a date below:
Thu, Jun 3,2010 2.00PM - 3.30 PM EDT
Thu, Jun 10,2010 2.00 PM - 3.30 PM EDT

Once registered you will receive an email confirming your registration with information you need to join the Webinar.
System Requirements:PC-based attendeesRequired: Windows® 7, Vista, XP, 2003 Server or 2000
Macintosh®-based attendeesRequired: Mac OS® X 10.4.11 (Tiger®) or newer

http://www.dol.gov/ofccp/EO13496_webinar_invitation.htm

Reversing Bush on Title IX

Inside Higher Ed
April 20, 2010

WASHINGTON -- Undoing another legacy of its predecessor, the Obama administration today plans to withdraw a 2005 clarification of a federal anti-discrimination law that critics saw as weakening enforcement of gender equity in college athletics.
Vice President Biden, joined by Education Secretary Arne Duncan and other administration officials, will announce at an event at George Washington University today that they have issued a “Dear Colleague” letter overturning the 2005 interpretation of Title IX of the Education Amendments of 1972. That policy allowed colleges and schools to use an e-mailed or Web-based survey alone to prove that they are “fully and effectively” meeting the athletics “interests and abilities” of female athletes.
Title IX, which bars gender discrimination by educational institutions that receive federal funds, gives colleges and schools three options for proving that they are providing equitable athletics opportunities to both sexes: they can have percentages of male and female athletes that are substantially proportionate to the percentage of enrolled male and female students; have a history and continuing practice of expanding participation opportunities for the underrepresented sex (almost always women); or “fully and effectively" accommodate the interests and abilities of the underrepresented sex.

Full Story: http://www.insidehighered.com/news/2010/04/20/titleix

For a copy of the U.S. Commission on Civil Rights' position on Title IX surveys, go to: http://www.usccr.gov/pubs/TitleIX-2010.pdf

EEOC issues proposed regulations on employer defenses to disparate impact age discrimination

Lexology
Ballard Spahr LLP
Brian D. Pedrow USA February 22 2010

On February 18, 2010, the Equal Employment Opportunity Commission published a Notice of Proposed Rulemaking on the issue of employer defenses to disparate impact age discrimination under the federal Age Discrimination in Employment Act (ADEA).
The EEOC issued the revised rules in response to two recent U.S. Supreme Court decisions, Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Lab (2008). Both cases involved the question of when an employer is liable for age discrimination when a facially neutral policy or practice has a disparate impact on age-protected employees.
In Smith, the Supreme Court held that an employer can defend a policy that disproportionately affects older workers by showing that the policy is supported by "reasonable factors other than age" (RFOA). According to the EEOC, this standard is lower than Title VII's business necessity test.
Meacham involved a reduction in force in which supervisors ranked employees based on performance, flexibility, and criticality of skill sets. More senior employees received additional points for years of service. The lowest-ranked employees were laid off. Of the 31 employees selected for layoff, 30 were over the age of 40, even though only 58 percent of the employer's workforce was over 40. The older employees claimed that the facially neutral selection process had a disparate impact on them. The Court held that the employer bears the burden of demonstrating that its selection system was based on reasonable factors other than age.
In light of these decisions, the EEOC decided to amend the ADEA regulations to address the RFOA defense. The proposed regulations define the phrase "reasonable factor" as one that is "objectively reasonable when viewed from the position of a reasonable employer." The factor must be reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the facts and circumstances. Reasonableness, according to the EEOC, will be judged from the perspective of a "prudent employer mindful of its responsibilities under the ADEA." A prudent employer knows or should know that ADEA prohibits facially neutral employment policies or practices that disproportionately impact older workers.
Under the proposed rules, the EEOC will examine the following nonexhaustive list of factors to determine if a policy or practice is reasonable: (i) whether it is a common business practice; (ii) the extent to which the factor is related to the employer's stated business goals; (iii) the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately; (iv) the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers; (v) the severity of harm to the individuals in the protected age group and whether the employer took preventive or corrective steps; and (vi) whether other options were available to the employer.

Full Story: http://www.lexology.com/library/detail.aspx?g=78164111-2172-4134-9554-41ac162311a4&utm_source=Lexology%20Daily%20Newsfeed&utm_medium=Email&utm_campaign=Lexology%20subscriber%20daily%20feed&utm_content=Lexology%20Daily%20Newsfeed%202010-03-08&utm_term=

EEOC Solicits Comments on Proposed Rule Concerning “Reasonable Factors Other than Age” Under the ADEA

U.S. Equal Employment Opportunity Commission
Press Release 2/18/10

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) has published in the Federal Register a Notice of Proposed Rulemaking (NPRM) addressing the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA). The agency is soliciting comments from the public and other interested parties by Monday, April 19, 2010.
The proposed rule follows a March 31, 2008, NPRM on disparate impact under the ADEA. In addition to requesting comments on its substance, the prior NPRM asked whether the Commission should provide more information on the meaning of the RFOA defense. Most commenters supported addressing the issue and, accordingly, the EEOC is publishing a new NPRM on RFOA. The NPRM has been coordinated with other federal agencies and reviewed by the Office of Management and Budget.
The proposed rule explains that the RFOA defense applies only if the challenged practice is not based on age and that a neutral practice that disproportionately affects older workers can be justified only by showing that the practice is objectively reasonable when viewed from the perspective of a reasonable employer under like circumstances. The proposed rule sets forth non-exhaustive lists of factors relevant to determining whether a factor is “reasonable” and “other than age.”
The EEOC will consider the public comments received and will make appropriate changes based on those comments. A proposed final rule covering this and the March 2008 proposed rules will then be coordinated with other federal agencies and reviewed by the Office of Management and Budget before becoming effective.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

OFCCP Hosts "Listening" Webinars January 12 and 14, 2010

The Department of Labor/OFCCP has announced that it will hold "listening" webinars on its compliance policies. See the announcement below and on the DOL website at:http://www.dol.gov/dol/calendar/detail.asp?event_id=1909
Listening webinars will be held on: January 12 and 14, 2010.

Event Name:
OFCCP Web Listening Series
Description:
Patricia Shiu, Director of the Office of Federal Contract Compliance Programs (OFCCP) will host the first in a series of Web Listening Sessions. OFCCP plans to publish a series of proposals that will seek to enhance the agency’s existing regulations and improve compliance with the laws that OFCCP enforces. To help inform the development of these proposals, OFCCP is seeking input from stakeholders. This session will highlight Affirmative Action & Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results under Section 503 of the Rehabilitation Act. This regulation protects individuals with disabilities from employment discrimination by federal contractors and subcontractors. Projected Publication date for Advance Notice of Proposed Rulemaking (ANPRM): 12/2010. For the audio portion of this listening session, please call 800-369-1722, (outside United States call 517-308-9423). This passcode will be required to join the call: 6341500. (Restrictions may exist when using a mobile telephone.) To submit comments, suggestions, or feedback please email: OFCCP-Regulatory-Agenda-503@dol.gov.
Date:
Jan 12, 2010
Time:
2:00 to 3:00
Location:
Washington, DC
For More Information:
Event Web site
Secretary's Event:
No
Agency:
OFCCP

Department of Labor's Regulatory Agenda Includes Changes to Veterans', Disabled and Construction Regulations

The Fall regulatory agenda released by the U.S. Department of Labor includes changes to regulations requiring affirmative action by federal contractors on behalf of veterans and persons with disabilities. The federal construction contractor regulations would also be amended according to this announcement.

Changes to the regulations implementing the Vietnam Era Veterans Readjustment Assistance Act of 1974 will require "federal contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts." This would constitute a major change in the regulations, which have not required numerical goals to measure the effectiveness of affirmative action programs benefiting veterans. The notice states that there would be changes to the recordkeeping provisions of the regulation as well. http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=200910&RIN=1215-AB80

An Advanced Notice of Proposed Rulemaking for Section 503 of the Rehabilitation Act of 1973 indicates that DOL/OFCCP would issue rules to require more substantive analyses of the recruitment and placement efforts of persons with disabilities as well. http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=200910&RIN=1215-AB77

The regulations governing the affirmative action requirements of construction contractors have not been changed since the 1970s. In this fall agenda, the department proposes to update the requirements for construction contractors, presumably including the goals for women and minorities. http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=200910&RIN=1215-AB81

All of these announcements are determined to be long term actions and have no deadlines attached. The public should monitor future announcements for an opportunity to comment on these regulatory proposals.

COMMISSION APPROVES PROPOSED ADA REGULATIONS FOR PUBLIC COMMENT

U.S. Equal Employment Opportunity Commission
PRESS RELEASE
9-16-09

New Regulations Conform to Changes Made by ADA Amendments Act of 2008

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) today approved a Notice of Proposed Rulemaking (NPRM) revising its regulations to provide that an individual seeking protection under the Americans with Disabilities Act (ADA) establish that he or she has a disability consistent with the original, expansive intent of Congress when it enacted the ADA in 1990. The NPRM, approved by 2-1 vote, carries a 60-day period for public comment.
The NPRM makes several significant changes to the definition of the term “disability” necessitated by enactment of the ADA Amendments Act of 2008. The NPRM will be available from the Commission’s website, www.eeoc.gov, along with a question-and-answer guide about the proposal and instructions for submitting public comments.
“Today’s Commission action marks a key step in implementing the landmark Amendments Act, which will smooth the road for those trying to establish disability under the ADA,” said Acting EEOC Chairman Stuart J. Ishimaru. “The Commission acted following careful and thorough deliberations, and we look forward to reviewing any and all public comments before issuing our final regulation.”
Acting EEOC Vice Chair Christine M. Griffin said, “Congress recognized that the intent of the ADA was being misread, that its goals were being compromised, and that action had to be taken. These regulations will shift the focus of the courts away from further narrowing the definition of disability, and put it back where Congress intended when the ADA was enacted in 1990.”
The Americans with Disabilities Act (ADA), an antidiscrimination statute, was signed into law in July 1990. The EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities. The statute requires employers to make reasonable accommodations to employees and job applicants with disabilities—defined as people with mental or physical impairments that substantially limit a major life activity, persons with a record of a disability, or who, while not actually disabled, are regarded as disabled.
The ADA Amendments Act, which went into effect Jan. 1, 2009, states that Congress expects the EEOC to revise its regulations to conform to changes made by the Act, and expressly authorizes the EEOC to do so. The new law rejected the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations that Congress believed construed the definition of “disability” too narrowly, preventing individuals with impairments such as cancer, diabetes, epilepsy, multiple sclerosis, muscular dystrophy, post-traumatic stress disorder, and bipolar disorder from bringing discrimination claims. The ADA Amendments Act (ADAAA) and the proposed rule make it easier for an individual alleging employment discrimination based on disability to establish that he or she meets the ADA’s definition of “disability.” The ADA Amendments Act also modifies the Rehabilitation Act of 1973, which prohibits employment discrimination in the federal workforce on the basis of disability.
The EEOC voted June 17 to adopt the rules changes, which then went to the Office of Management and Budget for review, and to federal agencies.
Consistent with the ADAAA, the NPRM emphasizes that the definition of disability -- an impairment that poses a substantial limitation in a major life activity -- must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis; that major life activities include “major bodily functions”; that mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and that impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active. The regulation also provides a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implements the ADAAA’s new standard for determining whether someone is “regarded as” having a disability.
The 60-day public comment period on the proposed rule-making will officially commence upon publication of the NPRM in the Federal Register, which is expected to be published the week of September 21, 2009. The EEOC encourages the public to offer its views and suggestions.
The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

E-Verify Rules Take Effect Today (September 8, 2009)

According to the Department of Homeland Security:
September 2, 2009

Federal Contractors Required to Use E-Verify Beginning Sept. 8, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is reminding federal contractors and subcontractors that effective Sept. 8, 2009, they will be required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause. In July, Department of Homeland Security (DHS) Secretary Janet Napolitano strengthened employment eligibility verification by announcing the Administration’s support for the regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization.
E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) (see link to the right) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.
The Federal Acquisition Rule; Case 2007-013; Employment Eligibility Verification (see link to the right) extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued after Sept. 8 will include a clause committing government contractors to use E-Verify.
Companies awarded a contract with the E-Verify clause on or after Sept. 8 will be required to enroll in E-Verify within 30 days of the contract award date. E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States.
More than 145,000 participating employers at nearly 550,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since Oct. 1, 2008, more than 7.6 million employment verification queries have been run through the system and approximately 97 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.
More information on the program is available on the "E-Verify" Web site link (www. dhs.gov/e-verify) to the right. E-Verify customer support is also available by calling toll free (888) 464-4218.
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=109cc691d0673210VgnVCM100000082ca60aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD

Most contractors must use the government's electronic employment verification system for new hires and existing employees.

On July 8, 2009, the following press release was issued by the Department of Homeland Security:


Secretary Napolitano Strengthens Employment Verification with Administration's Commitment to E-Verify
Release Date: July 8, 2009
For Immediate Release
Office of the Press SecretaryContact: 202-282-8010

Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department's intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.
“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.”
E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.
The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.
On average, one thousand employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide. Westat, an independent research firm, found that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours. The figure is based on statistics gathered from October through December 2008. Since October 1, 2008, E-Verify has processed more than six million queries. In an April 2009 American Customer Satisfaction Index Survey of over a thousand E-Verify participants, E-Verify scored 83 out of a possible 100 points—well above the latest federal government satisfaction index of 69 percent.
In addition to expanding participation, DHS continues to enhance E-Verify in order to guard against errors, enforce compliance, promote proper usage, and enhance security. Recent E-Verify advancements include new processes to reduce typographical errors and new features to reduce initial mismatches. In May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens. Other initiatives underway will bring further improvements to Federal database accuracy; add new tools to prevent fraud, misuse, and discrimination; strengthen training, monitoring, and compliance; and enhance privacy protections.
DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.
As Governor of Arizona, Secretary Napolitano signed legislation mandating all employers in the State use E-Verify. Implementation of this legislation has received high marks from employers across Arizona and the USCIS Ombudsman (in a December 2008 report).
For more information on E-Verify, visit www.uscis.gov/everify.
###
http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm

See also: http://www.workforce.com/archive/article/26/53/27.php

COMMISSION VOTES TO REVISE RULES TO CONFORM TO ADA AMENDMENTS ACT

U.S. Equal Employment Opportunity Commission
PRESS RELEASE
6-17-09

New Regulations Would Make it Easier for People to Establish Disability Under ADA

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) voted today to revise its regulations to conform to changes made by the ADA Amendments Act (ADAAA) of 2008, which would make it easier for an individual seeking protection under the ADA to establish that he or she has a disability.
The Commission voted 2-1 to adopt the rules changes, at a public meeting this morning at the agency’s Washington headquarters. The five-member body has two vacancies.
The rules changes approved today represent an initial stage in the regulatory process and must next go to the Office of Management and Budget for review, and to federal agencies pursuant to Executive Order 12067, without public comment.
“In approving these proposed regulations, the EEOC today is taking a significant step toward returning the ADA to the broad and strong civil rights statute that Congress originally intended it to be,” said EEOC Acting Chairman Stuart J. Ishimaru. “The proposed regulations will permit individuals with disabilities to participate to the fullest extent possible in the American workplace.”
Acting EEOC Vice Chair Christine M. Griffin said, “Today’s vote is historic. These regulations will serve to shift the focus of the courts from further narrowing the definition of disability and putting it back to where Congress intended when the ADA was enacted in 1990. Courts should now focus on whether discrimination based on disability is occurring in the workplace. The protections afforded by the ADA AA and these new regulations are important for all workers including our returning wounded warriors who certainly deserve the right to re-enter a workforce free of discrimination.”
The Americans with Disabilities Act (ADA), an antidiscrimination statute, was signed into law in July 1990. The EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities. The statute requires employers to make reasonable accommodations to employees and job applicants with disabilities—defined as people with mental or physical impairments that substantially limit a major life activity, persons with a record of a disability, or who, while not actually disabled, are regarded as disabled.
The ADA Amendments Act, which went into effect Jan. 1, 2009, makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's prior ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability as defined by the ADA. The ADAAA emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.
The ADAAA also states that Congress expects the EEOC to revise its regulations to conform to changes made by Act, and expressly authorizes the EEOC to do so.
The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.