Commenting on the Section 503 Notice of Proposed Rulemaking: What You Need to Know

by Zeigler, Esq., Sandra Wednesday, January 04, 2012
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Mark your calendars for February 7, 2012! This will be your last opportunity to weigh in on the proposed revisions to OFCCP's Section 503 regulations at 41 CFR Part 60-741.

Why should I comment on the proposed rule?
You cannot afford to ignore the significant changes being proposed in the Section 503 Notice of Proposed Rulemaking (NPRM). It is critical that you read and understand what is coming down the pike in Section 503 enforcement. Changes include pre-offer invitations to self-identify as having a disability, proposed nation-wide numeric hiring goals, extended record retention periods and much more. The comment period on this proposed regulation is the last chance to provide input on the agency's draft regulation. The agency can drop or modify proposed language, add clarifying language or decide among options published in the proposed rule in response to the comments received.

Who can comment?
Anyone can comment on a proposed rule. Most comments come from individuals, companies, associations and other organizations who will be directly affected by the regulations.

As a Federal contractor will I be scheduled for a compliance review if I or my company submits comments on the rule?
No. Commenting on the rule is completely unrelated to the scheduling procedures. You can comment both in your individual capacity and/or on behalf of your company. If you did receive a scheduling letter after commenting, it would be pure serendipity. There is no causal connection between commenting and being scheduled. If you are already scheduled for a review, commenting will have no impact on the outcome of the review. The compliance officers and field staff that conduct the reviews do not check to see whether the company has commented on any proposed rules. You should feel completely secure in commenting, it will not and cannot be used against you.

Will anyone even read my comments?
Yes, every comment submitted on a proposed regulation will actually be read by somebody at the Department of Labor. Depending on the volume of comments, the reading may be distributed to several staff who will read, categorize and summarize the comments but someone will definitely be reading it.

Should I bother to comment if I am convinced that the agency has made up its mind already?
Yes. Officially, the agency has not made up its mind; however, agencies are usually pretty committed to the major contours of their proposed regulations. Keep in mind that the agency is not the only potential audience for your comments. The Office of Management and Budget (OMB), which has to clear all rules for publication, and elected officials may also be influenced by the comments submitted on the rule, including how much interest the rule has generated as measured by the volume of comments.

It is also important to comment because your comments become part of the rulemaking record. If at some point the legality of the rule is challenged, some of the comments may become important evidence. For example, if the calculation of the impact of the rule on businesses is way off the mark and the agency was put on notice of this during the rulemaking process, this could be important to a determination of whether the rule was properly promulgated. Finally, by responding you may encourage others to comment who may share your views.

I belong to an organization that is submitting comments. Is there any reason for me to submit separate individual comments?
Yes. Association and group comments are important but they do not substitute for individual comments. When an agency is counting how many responses it received in favor or against the rule or some part of the rule, a comment from an association, even a large association, will usually count as one comment. For example, if an association of 300 people submits a single response, that counts as one response; however, if in addition to the association's response, each member submits his or her own response, the total number of responses jumps to 301.

I noticed some responses seem to be identical. How are identical responses counted?
Each response submitted is counted separately even if it is identical word for word with other responses. Membership organizations often provide "boilerplate" -- a standard response template to make it easier for its members to submit individual responses to the regulation. Each of these still counts as a separate individual response.

How can I increase the impact of my response?
There are several ways to increase the impact of your response.
  • Stay on topic--the agency will quickly put rambling, irrelevant responses to the side. The preamble to the NPRM notes that of 127 responses received on the Advance Notice of Proposed Rulemaking (ANPRM) published in July 2011, only 80 were considered substantive. The substantive responses were the ones that commanded the most agency attention.
  • Relate your comment to the objective of the regulation, which is to improve the employment prospects of individuals with disabilities. The agency's interest in regulating is to meaningfully address the underemployment of individuals who have disabilities. Both your positive and negative comments will have more impact if you clearly explain how the issue you are raising helps or hinders the regulatory objective.
  • Address specific issues that the agency has asked about. For example, the OFCCP asks about the use of a national hiring goal for individuals with disabilities. Responses addressing this issue as well as other questions specifically raised by OFCCP will probably be summarized and discussed in the preamble to the final rule.
  • Provide objective and specific information about burden hours and the cost of the regulation. The agency has a duty to correctly calculate these figures and data that is pertinent to this calculation will likely get attention. Accurate information on this is important because eventually these proposals will become a series of actions that the contractor will have to carry out. It will in fact take the time it takes regardless of the time projections on paper. The closer these estimates are to the actual effort that will have to be made the more likely the rule will work when finally implemented.
  • Make recommendations or comments about specific sections of the regulation. Identify the section and the specific change that you think should be made to that section. The staff that reads the comments often does not have direct experience in conducting compliance evaluations and often has no experience in the private sector trying to comply with federal regulations. The clearer you are about the problem and the proposed solution the more likely your response is to have impact.
  • It is as important to identify aspects of the rule you like as those that you find problematic. You do not want the agency to eliminate provisions you agree with in the final rule.
  • Maintain an objective and rational tone. You can put forward your opinions in strong terms however good ideas buried in a tirade tend to get lost.
  • Enlist critical masses of like-minded people who are willing to comment on the rule.
  • As noted above, remember that the agency is not the only audience for your comments. Consider arguments that are persuasive not only to the agency but also to the Office of Management and Budget, and to your Congressional representatives and others who may have an interest in either the specific regulation or the overall regulatory program of the agency.
  • Where aspects of the rule are unclear, explain what the confusion is and ask for clarification when the final rule is published. If a provision can be read more than one way explain specifically the ways that it could be read.
  • Organize your comments in a way that is easy to read. Number your pages and your points. Electronic comments are easier for the agency and the public to deal with than paper responses, however, paper responses are still permitted. An electronic response will have more impact because it is published on www.regulations.gov and is available for everyone to easily read. Paper responses may be listed on the regulations site but the text will probably not be posted.
If a lot of people ask for a particular change in the rule must the agency make that change?
No. However, the agency would have to identify the major comments on the rule and explain in the preamble to the final rule its reasons for choosing to regulate as it did.

The rule makes so many changes I do not know where to start. Do you have any thoughts on how to approach my review of the rule?
Don't be intimidated by the length of the rule. The agency republished the entire Section 503 regulation but only the parts of it that are being revised are actually open for comment. You may want to start by highlighting the language that is being changed. The preamble to the proposed rule identifies all of the changes that are being made. Once that is done there are several ways to go about evaluating the proposed rule. Maybe some of the information and ideas below will help get you started.

One way to begin your evaluation is to determine how the requirements proposed for Federal contractors compare with the requirements that the Federal government uses in carrying out its own affirmative action program. Since the Federal government is supposed to be the "model employer," it would be expected that the requirements applied to Federal contractors would not be greater than the requirements the Federal government applies in its own disability affirmative action program. This kind of research can be done on the internet. A cursory review of the internet produced the following interesting information:
  • On July 26, 2010, President Obama issued Executive Order 13548, establishing a five-year goal for the Federal government to hire 100,000 people with disabilities (including targeted disabilities) thus adopting the exact same five-year 100,000 person hiring goal for individuals with disabilities that was set on July 26, 2000 in Executive Order 13163 issued by President Clinton. (I could not find data showing whether the objectives President Clinton set in 2000 were achieved by the July 2005 five year mark.) This objective obviously is not based on the 2009 American Community Survey (ACS) which is being offered as the best current information available for setting goals for Federal contractors.
  • Executive Order 13548 sets a goal for the entire Federal government. The proposed rule precludes company-wide hiring goals, requiring instead goals by job group. The rationale for this requirement, to eliminate the possibility of masking discrimination, would appear equally applicable to the Federal government.
  • With the exception of the special disability hiring authority referred to in the Federal government as Schedule A, it is not at all clear that an invitation to self-identify as a person with a disability pre-offer is routinely extended to all applicants for Federal employment.
  • The requirement that a Federal contractor identify each vacancy, each promotion opportunity and each training opportunity for which an applicant with a disability was considered does not appear to have a current parallel in Federal disability affirmative action.
  • The applicant, hiring and job fill ratios that are proposed to be mandated for Federal contractors, do not appear to have a parallel in Federal employment.
Another approach would be to compare the affirmative action approach proposed for individuals with disabilities with the approach being used for minorities and women since the NPRM purports to extend principles under the Executive Order to individuals with disabilities.
  • Section 202 of Executive Order 11246 provides that "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." This interpretation of the term "affirmative action" is reinforced in the E.O. 11246 regulations which provide at 41 CFR 60-2.10, "An affirmative action program is a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that, absent discrimination, over time a contractor's workforce, generally will reflect the gender, racial, and ethnic profile from which the contractor recruits and selects." Despite the line of cases under Title VII which allow minority status and gender to be a factor in selection as long as it is addressing a demonstrated underutilization and does not unnecessarily trammel the rights of others, OFCCP has consistently taken the position that affirmative action is geared toward generating diverse pools of candidates but prohibits using gender or minority status as a factor in selection. The proposed rule dramatically highlights the difference between the concept of affirmative action for women and minorities and the concept of affirmative action for individuals with disabilities. Section 503 requires affirmative action to employ and advance in employment individuals with disabilities. OFCCP's proposed rule encourages priority hiring based on disability status. Obviously OFCCP is operating from a totally different central premise of affirmative action in Section 503. Comments could address the advisability of providing a specific definition of affirmative action for Section 503 as well as the rationale for having a different standard based on the group for whom affirmative action is being taken.
  • Specific nation-wide percentage goals for minorities and women have been in place, unchanged for years, in the OFCCP regulations for construction. Problems associated with these goals are a large part of the incentive for including revisions of the construction rules on the DOL regulatory agenda. These goals have been in place for 30 years and do not move with changes in demographic information. The advisability of using this as a model for disability affirmative action could be the subject of comment.
  • The proposed target percentages are not even arguably tied to the number of individuals in the actual recruiting area with the requisite skills and an interest in the particular area of employment as is required in goal setting for women and minorities for companies providing supplies and service rather than construction to the Federal government. OFCCP avoids this problem by simply ignoring it. Comments could and should address the challenges of finding real applicants for real jobs based on irrelevant numbers.
  • Affirmative action requirements for women and minorities do not include a requirement that the contractor prepare a statement of reasons explaining the circumstances for rejecting such individuals for vacancies and training opportunities and providing them with these reasons upon request. OFCCP suggests that such a requirement in the proposed rule will reduce the number of disability related complaints. OFCCP receives very few disability complaints under the current regulation; this is, in part, why such significant revisions are being proposed. Comments could address the very real possibility that these provisions are designed to stimulate rather than reduce disability complaints.
  • Affirmative action does not appear to be an individual entitlement for women and minorities, however, several provisions, such as the right to contemporaneous written explanations for adverse employment decisions, do appear to grant individual entitlements. How will the contractor know when these individual entitlements kick in? For example, if an employee mentions his diabetes to a supervisor in casual conversation but does not self-identify on a form or survey, do these individual entitlements attach? In other words, does the contractor become obligated to start keeping contemporaneous documentation of its rationale for all employment selection decisions concerning this person from the point at which the conversation disclosed his diabetes to his supervisor?
  • Linkage agreements are not new and have been used for all protected classes by OFCCP for years in conciliation agreements where contractors have failed to make good faith efforts for outreach and recruitment. Have they worked in the past? Does the agency have any accurate statistics on the hiring that has resulted from the use of such agreements over the years? What in that data supports moving the linkage agreement from use as a remedy for violators to a general requirement?
Another approach to addressing the proposed rule is to look at the rule from an effectiveness perspective.
  • Identify what actually works in your organization's efforts to hire and advance applicants and employees with disabilities and comment on how the rule would either help or hinder your current efforts.
  • The proposal requires a pre-offer invitation to self-identify as a person with a disability. This is permitted under the ADA provisions that allow an employer to comply with other government mandates. Absent a government mandate, a pre-employment inquiry of this nature is only permitted if you have an affirmative action program that actually benefits individuals with disabilities. From time to time there are gaps in contract coverage. Will maintaining the program during the period when OFCCP technically lost jurisdiction because your contract lapsed be automatically viewed as satisfying the EEOC test of actually benefitting individuals with disabilities? If not, what is a contractor required to do?
  • The proposed rule requires that certain data such as applicant ratios, hire ratios and job fill ratios be maintained for five years rather than the customary two years for large employers and one year for small employers. How will these figures be evaluated by the agency if the underlying data which supports these ratios is not also kept for five years?
  • If more than the target percentage, 7% or whatever figure is ultimately adopted, in a job group has a disability (this becomes more likely under the broad definition of disability), does the contractor no longer have to comply with the affirmative action provisions? What happens if the agency disagrees with the employer's determination of who in its workforce is disabled?
  • Are individuals who are "regarded as" disabled to be included in the affirmative action mandates other than those related to reasonable accommodation?
Finally, you can and should comment on what it will take to implement the rule in your establishment and respond to the figures published by the agency.

It is widely agreed that the current Section 503 regulations have to be revised. They have to conform to the ADA Amendments Act of 2008 and to EEOC's revised ADA regulations. Most would also agree that Section 503 enforcement has been ineffective for a long time. However, it is important that in trying to improve the employment picture for individuals with disabilities that the best policies are put in place and that benevolent but patronizing stereotypes are not reinforced.

There are many factors that hinder the employment of individuals with disabilities. When we tried to address the underemployment of people with HIV/AIDS in Chicago we were told that many will not even apply for the positions because important insurance and medical coverage would be put at risk. It is important not to oversimplify the problem of chronic underemployment of individuals with disabilities. It is not an us versus them proposition. It benefits employers to hire the most qualified applicants regardless of their disability.

Aggressive outreach and recruitment are key. Clearly defining what constitutes disability discrimination is critical. The publication of this proposed rule gives you an opportunity to let the agency know if its proposals are workable in the real world, whether they are likely to achieve their objectives and whether there are other and better solutions. Neither stereotypes about individuals with disabilities nor stereotypes about covered contractors should drive this conversation. It is a conversation you have been invited to join and the only meaningful way to do that is to provide your comments on the proposed rule by the February 7, 2012 deadline.

How do I submit comments?
Comments can be submitted through and are available to the public at the electronic rulemaking portal, www.regulations.gov. The rule can be accessed using the RIN number 1250-AA02. Comments can also be submitted on paper either by mail, to Deborah A. Carr, Director, Division of Policy, Planning and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C. 20210, or if six pages or less, by fax at 1-202-693-1304. Paper comments may not be viewable on the regulations.gov site but will usually be listed with an acknowledgement that a paper comment was timely submitted.