Some organizations have decided that the new affirmative action regulations will be so burdensome that they are working their way out of contractor status, says attorney David Fortney. “We’re tired of being hassled,” they say, and they are wrapping up their government contracts.
Fortney told the story of a company that was approached by a government agency after one of the recent weather disasters. The agency offered a million-dollar contract for bottled water. No, we won’t enter into that contract (which would make us government contractors), but we will give you the water for free, the company said.
Fortney, a founder of the Fortney Scott law firm in Washington, D.C., offered his tips at a recent meeting of the Employers Counsel Network, a network of employment attorneys in all 50 states who write BLR’s monthly state employment law newsletters (BLR is CER’s parent company).
Most Controversial in the New Regs
The most controversial part of the new regs regarding individuals with disabilities is the part that runs up against the ADA, says Fortney. Up until now, the ADA was all about “Don’t talk about disabilities at the preoffer stage.” Now, the new regulation wants employers to ask preoffer, do you have a disability? And then to ask again, every 5 years.
When EEOC’s Peggy Mastroianni was asked about this apparent contradiction, she said not to worry because the EEOC wouldn’t sue over that issue. Fine, says Fortney, but others will sue.
Furthermore, when you ask about disabilities, you must use the agency’s form, unmodified. It’s a complicated, dense document that reading specialists have classed at the level of a reader with 17 years of schooling.
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7%—Goal or Quota?
And then there’s the issue of whether the 7 percent utilization rate for employees with disabilities is a goal (meaning you try to achieve it but aren’t penalized if you don’t succeed) or a quota (meaning that you can be penalized if you do not reach the rate). The agency says that the 7 percent will not be enforced as a quota.
How a Goal Becomes a Quota
That’s nice, says Fortney, but what will happen is this: If you don’t reach the goal, the agency can exact a conciliation agreement because of your “failure to make a good faith effort” to reach the goal. Once there’s a conciliation agreement, if you fail to comply with the conciliation agreement, there will be enforcement. And that’s how a goal becomes a quota, Fortney says.
DOL’s Enforcement Database
Look for an emphasis on enforcement out of the DOL, says attorney Fortney. To start, check out DOL’s Enforcement Database. Everyone else is looking at the enforcement database, including agencies and attorneys, says Fortney, but business isn’t looking at it.
If an attorney or another agency finds that a company has settled or conciliated a claim, it may start digging, assuming that there may be another violation.
Get up to speed on the laws you need to know for 2014 and beyond—learn more.
White House’s National Equal Pay Task Force
The White House’s National Equal Pay Task Force is a body to watch. The administration’s position is that there is widespread systemic discrimination and that the cause is poor enforcement.
In tomorrow’s CED, more of Fortney on the OFCCP’s affirmative action requirements.
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