OBAMA ADMINISTRATION SEEKS TO IMPOSE HIRING GOALS
The U.S. Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP") regulates affirmative action obligations imposed on federal contractors. Most banks and financial institutions with government contracts, including federal deposit insurance, are considered federal contractors. In a recently proposed rule, the OFCCP seeks to change forty years of affirmative action policy and impose a hiring "goal" on federal contractors for hiring persons with disabilities. The new rule, if implemented, will replace the long standing requirement of "good faith effort" to hire persons with disabilities with an OFCCP calculated guideline set at seven percent of the employer's work force.
The OFCCP is careful to avoid calling the "goal" a quota. "A utilization goal is neither a hiring quota, nor a restrictive hiring ceiling. Rather, it is an equal employment opportunity objective, and an important tool for measuring the contractor's progress toward equal employment opportunity and assessing where barriers to equal employment opportunity remain."
However, OFCCP Director Patricia Shiu admitted the intent to aggressively enforce the goal. Referring to the long standing good faith requirement in a press release, she said: "Clearly, that's not working. Our proposal would define specific goals, require real accountability and provide the clearest possible guidance for employers seeking to comply with the law. What gets measured gets done. And we're in the business of getting things done." (emphasis added)
Although the new rule does not propose sanctions for falling short of the goal, the revised conciliation provision does begin the march in that direction. A newly proposed provision "specifically permits the establishment of benchmarks in conciliation agreements as one possible form of remedial action. Benchmarks may be established for outreach, recruitment, hiring, or other employment activities of the contractor, as appropriate, and will provide a quantifiable method for measuring the contractor's progress toward correcting identified violations and/or deficiencies."
OFCCP is accepting comments on the proposed rule until February 7, 2012.