The Labor Department's Office of Federal Contract Compliance
Programs, on December 9, 2011, proposed a rule that would require
federal contractors to establish a hiring goal of 7 percent of the
employer's workforce for persons with disabilities. The
proposal represents a change from over forty years of OFCCP policy
requiring contractors to make a "good faith effort" to
recruit and hire people with disabilities. The rule would
strengthen affirmative action requirements under Section 503 of the
Rehabilitation Act, which requires federal contractors and
subcontractors to provide equal employment opportunities for
persons with disabilities.
OFCCP Director, Patricia Shiu commented that the proposal would
"define specific goals, require real accountability, and
provide the clearest possible guidance for employers seeking to
comply with the law." The 7 percent goal is not a hiring quota
or a restrictive ceiling under the proposed rule; it is merely an
The proposed rule is in line with the Obama Administration's
effort to improve the lives of disabled persons. It also revises
key terms (such as "substantially limits,"
"disability," and "major life activity") under
Section 503 of the Rehabilitation Act to conform with the ADA
Amendments Act. The proposed rule also includes a provision that
would invite job applicants to self-identify as disabled and also
would require federal contractors to survey their current employees
annually to provide employees with the opportunity to self-identify
as disabled. Voluntary self-identification will allow contractors
to compile data to assess the effectiveness of recruitment efforts.
Pursuant to the proposed rule, contractors also would be required
to perform an annual review assessing their recruitment and hiring
efforts. Finally, the rule would require federal contractors to
collaborate with state vocational rehabilitation agencies or local
organizations to help with recruitment and training of persons with
As our readers know, federal and state departments of labor have intensified their scrutiny of independent contractor arrangements and are coordinating with the federal and state taxing authorities when misclassifications are found.
Courts often conclude that absent appropriate disclaimer language and statements in employee handbooks are "promises" to employees, binding employers to abide by these promises in their dealings with employees.
Employers sometimes rely on equitable arguments, such as "unclean hands" (which asserts that it would not be fair to hold an employer liable when the employee’s actions caused or contributed to his own injury or damages).