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Office of Federal Contract Compliance Programs (OFCCP)

Major Differences Between Current Section 503 Regulations and Section 503 Final Rule

---DISCLAIMER---

Topic

Current 503 Regulations

Final 503 Regulations

Coverage

Contractor
Coverage



Employee
Coverage







Extra-territoriality



Federal contractors and subcontractors with
contracts of $2,500 or
more.

Reg. coverage provides all positions are covered, but
under case law was limited to positions engaged in work related to government contracts until 1992 Rehabilitation Act Amendments.

Limited. Covers persons recruited within the U.S. for work abroad.



Contracts and subcontracts in excess of $10,000. 60-741.4(a)(1)



Coverage again extends to all positions, regardless of relationship to a Federal contract. (Matters arising before 10/29/92 Rehabilitation Act Amendments remain subject to "carrying out" contract showing.) 60- 741.4(a)(2)



Limited. Covers employment activities within the U.S. (e.g., covers decisions made in U.S., pertaining to U.S. employers or applicants, regarding employment opportunities abroad). 60- 741.4(a)(4)

Affirmative Action

Affirmative Action/Non- discrimination


Written AAP
contents



Invitation to Self-Identify



Mandates affirmative action (and, implicitly, nondiscrimination as a precondition).

Components of affirmative action programs are not explicitly prescribed as they are in Exec. Order AAPs.

Contractor must extend to all applicants and employees.



Explicitly requires both nondiscrimination and affirmative action. 60-741.43



Rewritten for clarity; generally parallels Executive Order AAP contents listed in 41 CFR 60-2.13. 60-741.44(a)


Contractor required to extend invitation to self-identify to all applicants post-offer but prior to employment. Permitted to invite self-identification pre-offer only in the two limited circumstances listed in 60-741.42

Use of Terms

Covered Persons



Qualified handicapped individual



Qualified individual with a disability. Detailed regulatory definitions. See 60-741.2

Complaints

Filing Period


Third-party complaints


Internal Review Procedure



180 days, unless extended for good cause shown.

Permitted, but must name complainant.


Permitted contractor 60 days to review and internally resolve complaints.



300 days unless extended for good cause shown. 60-741.61(b)

Permitted. Need not name complainant, but provide name to investigator to confirm authorization. 60-741.61(c)(2)

Eliminated internal review procedure.

Definition of Qualified Individual with a Disability

"Substantially
Limits"







"Qualified"




Specific Conditions Excluded





Degree that the impairment affects employability.







Able to perform a particular job with reasonable
accommodation.


None listed in 503 law or regulations.





Unable to perform a major life activity that average person can perform or significantly restricted in the performance of major life activity. 60-741.2(q). With respect to the major life activity of working it means significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes. 60-741.2(q)(3)(i)

Able to perform the essential (as opposed to marginal) functions of a particular job with or without reasonable accommodation. 60-741.2(t)

Transvestites, various other psycho-sexual conditions; compulsive gambling; kleptomania; pyromania; homosexuality and bisexuality not considered disabilities. 60-741.3(d)(e)

Medical
Examinations/ Inquiries

Pre-Offer Medical Examinations




Pre-Offer Medical Inquiries (e.g., app. forms, interviews)


Medical Exams/Inquiries of employees


Drug-Testing



Co-mingling medical with other personnel record





Permitted, but only for AA and proper job placement; cannot be used to exclude or limit employment opportunities.


Permitted (with same proviso as
under Pre-Offer Medical Exams above)


Permitted (with same proviso as
under Pre-Offer Medical Exams above)


Silent on subject



Requires confidentiality, but does not expressly require totally separate files.





Prohibited, but may require exam post offer, pre-employment if all in job class are subjected. 60-741.23



Prohibited but may ask about ability to perform job related functions. 60-741.23(b)(i)


Permitted only if job related, consistent with business necessity. (Voluntary "wellness" programs OK). 60-741.23(b)(4)

Permitted at any time (i.e., not considered a medical exam). 60-741.24(b)

Requires both confidentiality and totally separate files. 60-741.23(d)(1)

Recordkeeping

Scope of Records



Retention Period





Consequences of recordkeeping violation



Records relating to complaints against contractor and other records as Director may require.

One year for all contractors





None specified.



Any personnel and employment record made or kept by contractor (examples provided). 60-741.80(a)

Two years for larger contractors. One year if the contractor has fewer than 150 employees or does not have a government contract of at least $150,000. 60-741.80(a)

If employer fails to keep or destroys records, inference will be that records would have been unfavorable to employer. 60-741.80(b)

Reasonable Accommodation

Failure to Provide




Conditions Required






Financial Offsets




Required, but not expressly termed discrimination.



Need for accommodation.






Not explicitly addressed.




Failure to provide is expressly termed discrimination and is unlawful unless can show "undue hardship." 60-741.21(f)

Knowledge of disability and need. Contractor required to have AAP must inquire whether accommodation is needed if employee is having difficulty with job performance. 60-741.44(d)

Assessment of "undue hardship" must consider tax and other offsets available to reduce cost. 60- 741.2(w)(2)

Right to Sue

Appeal Rights vs.
Right to Sue



Offer 503/ADA complainant appeal to the Director, OFCCP. But, if person does not appeal, or Director upholds DO -- i.e., "No Violation" finding become final -- issue "Notice of Right to Sue" under ADA.1



No right of appeal if also covered by ADA-- receive "Notice of Right to Sue" instead. However, if not also covered by ADA, DAS automatically will review all "No Violation" findings. 60-741.6(f)(2)

Remedies

Make-Whole Relief
and Interest




Show Cause Notice


Conciliation Agreements



Regs. require corrective action for violations. Under case law this requires make-whole relief and interest, but since 1989, only simple interest on back pay.

No provisions.


No provisions, but use as a matter of policy.



Continues to require corrective action. Make-whole relief, including compound interest on back pay expressly required. 60-741.62(a); 741.65(a)(i)

Yes. Same as Executive Order Provisions. 60- 741.64.

Yes. Same as Executive Order Provisions. 60- 741.62

Enforcement

Hearing/Procedure





Sanctions





Reinstatement/
Appeal



Administrative hearing before ALJ. ALJ recommends decision to DOL Administrative Review Board.2 No time period specified for issuance of final agency decision.

Withhold progress payments; contract terminations; and/or indefinite debarment.



Request to DAS



Same as current, but final administrative order is to be issued within a year of ALJ recommended decision. 60-741.65(b)


Retains all existing sanctions but adds that in appropriate cases, debarment may be for a fixed period of not less than 6 months but no more than 3 years. 60-741.66(c)

Where fixed-term debarment, can request reinstatement after 6 months. If DAS denies, can appeal to Secretary. 60-741.68

1 Section 503/ADA Coordination procedures are addressed in Part 60-742.

2 Until recently Section 503 final agency decisions were issued by the Assistant Secretary for ESA. Pursuant to a final rule published on May 3, 1996, the Administrative Review Board, rather than the Assistant Secretary, will issue final agency decisions under Section 503.