Proposed Rule2025-12233
Modifications to the Regulations Implementing Section 503 of the Rehabilitation Act of 1973, as Amended
Primary source
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Published
July 1, 2025
Issuing agencies
Labor Department
Abstract
The U.S. Department of Labor proposes to revise its implementing regulations for Section 503 of the Rehabilitation Act of 1973, as amended. The proposed revisions will better align the regulations with recent case law and executive orders, including Executive Order 14173, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity" and Executive Order 14219, "Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative."
Full Text
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<title>Federal Register, Volume 90 Issue 124 (Tuesday, July 1, 2025)</title>
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[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Proposed Rules]
[Pages 28494-28504]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12233]
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DEPARTMENT OF LABOR
Federal Contract Compliance Program Office
41 CFR Parts 60-30 and 60-741
[Docket No. OFCCP-2025-0003]
RIN 1250-AA18
Modifications to the Regulations Implementing Section 503 of the
Rehabilitation Act of 1973, as Amended
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The U.S. Department of Labor proposes to revise its
implementing regulations for Section 503 of the Rehabilitation Act of
1973, as amended. The proposed revisions will better align the
regulations with recent case law and executive orders, including
Executive Order 14173, ``Ending Illegal Discrimination and Restoring
Merit-Based Opportunity'' and Executive Order 14219, ``Ensuring Lawful
Governance and Implementing the President's `Department of Government
Efficiency' Deregulatory Initiative.''
DATES: Comments must be received by September 2, 2025.
ADDRESSES: Comments must be submitted in one of the following two ways
(please choose only one of the ways listed):
<bullet> Electronically at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
``Submit a comment'' instructions. If you are reading this document on
<a href="http://federalregister.gov">federalregister.gov</a>, you may use the green ``SUBMIT A PUBLIC COMMENT''
button beneath this rulemaking's title to submit a comment to the
<a href="http://regulations.gov">regulations.gov</a> docket.
<bullet> You may mail written comments to the following address:
Catherine L. Eschbach, Director, Office of Federal Contract Compliance
Programs, 200 Constitution Avenue NW, Washington, DC 20210. Mailed
comments must be received by the close of the comment period.
Do not include any personally identifiable information (such as
name, address, or other contact information) or confidential business
information that you do not want publicly disclosed. All comments are
public records; they are publicly displayed exactly as received, and
will not be deleted, modified, or redacted. Comments may be submitted
anonymously.
Follow the search instructions on <a href="http://www.regulations.gov">http://www.regulations.gov</a> to
view public comments. A brief summary of this document will be
available on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Catherine L. Eschbach, Director,
OFCCP, 200 Constitution Avenue NW, Washington, DC 20210. Telephone:
202-693-0101. Email: <a href="/cdn-cgi/l/email-protection#92fdf4f1f1e2cdf5e7fbf6f3fcf1f7d2f6fdfebcf5fde4"><span class="__cf_email__" data-cfemail="335c555050436c54465a57525d505673575c5f1d545c45">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Legal Authority
The U.S. Department of Labor (DOL) enforces Section 503 of the
Rehabilitation Act of 1973 (Section 503), as amended, and its
implementing regulations at 41 CFR part 60-741, which together prohibit
Federal contractors and subcontractors (``contractors'') from
discriminating against employees and applicants because of their
disability status. Section 503 also requires contractors to take
affirmative action to employ and advance in employment qualified
individuals with disabilities. Its basic requirements apply to
contractors with a government contract in excess of $15,000, as
effective October 1, 2010, the coverage threshold under Section 503
increased from $10,000 to $15,000, in accordance with the inflationary
adjustment requirements in 41 U.S.C. 1908. See, Federal Acquisition
Regulation; Inflation Adjustment of Acquisition-Related Thresholds, 75
CFR 53129 (Aug. 30, 2010).
Under the current regulations, contractors with 50 or more
employees and a single Federal contract or subcontract of $50,000 or
more are also required to develop and maintain an affirmative action
program, where they must implement and document their equal employment
opportunity efforts on an annual basis, as provided in 41 CFR part 60-
741, subpart C. As discussed below, DOL is proposing to revise these
regulations to better align them with recent case law and executive
orders.
II. Discussion
Prior to January 21, 2025, DOL's Office of Federal Contract
Compliance Programs enforced three authorities: Executive Order (E.O.)
11246, as amended, Section 503, and the Vietnam Era Veterans'
Readjustment Assistance Act of 1974 (VEVRAA), as amended. On January
21, 2025, President Trump issued E.O. 14173, ``Ending Illegal
Discrimination and Restoring Merit-Based Opportunity,'' 90 FR 8633
(Jan. 31, 2025). E.O. 14173 revoked E.O. 11246, which prohibited
covered contractors from discriminating in employment based on race,
color, religion, sex, sexual orientation, gender identity, and national
origin and required them to take affirmative action. E.O. 11246 also
prohibited covered contractors from taking adverse employment actions
against applicants or employees because they inquired about, discussed,
or disclosed information about their pay or the pay of their co-
workers, subject to certain limitations.
While Section 503 remains in effect, the Section 503 regulations
adopt and cross-reference the E.O. 11246 administrative enforcement
proceeding procedures at 41 CFR part 60-30. Specifically, the Section
503 regulations provide, in part, that ``[a]ll hearings conducted under
[Section 503 and part 60-741] shall be governed by the Rules of
Practice for Administrative Proceedings to Enforce Equal Opportunity
Under Executive Order 11246 contained in 41 CFR part 60-30 . . .'' 41
CFR 60-741.65(b)(1). With the revocation of E.O. 11246, DOL is
proposing to remove this cross-reference and add the administrative
enforcement proceeding provisions to part 60-741, except where
duplicative of current part 60-741 provisions (e.g., the severability
clause). Specifically, DOL is proposing to add these regulatory
provisions to 41 CFR 60-741.65. In a separate rulemaking, DOL is
proposing similar changes to the VEVRAA regulations. If these proposed
changes become final, the 41 CFR part 60-30 regulations will be
duplicative and unnecessary as they will be incorporated into 41 CFR
parts 60-300 and 60-741. As such, DOL is also proposing to rescind 41
CFR part 60-30 using a delayed effective date.
DOL is also proposing to rescind the regulations at 41 CFR 60-
741.42, which require contractors to invite applicants and employees to
self-identify their disability status, as well as the utilization goal
requirements at 41 CFR 60-741.45. The regulations at 41 CFR 60-
741.45(a) require contractors to apply a seven percent utilization goal
for employment of qualified individuals with disabilities to each of
their job groups, or to their entire workforce if the contractor has
100 or fewer employees. The regulations also require covered
contractors to conduct a utilization analysis, where they evaluate the
representation of individuals with disabilities in each job group
within their workforce (or across the entire workforce if they have 100
or fewer employees) with the seven percent utilization goal. 41 CFR 60-
741.45(d). When the percentage is less than the utilization goal
established, the contractor must take steps to determine whether and
where impediments to
[[Page 28495]]
equal employment opportunity exist. 41 CFR 60-741.45(e). When making
this determination, the contractor must assess its personnel processes,
the effectiveness of its outreach and recruitment efforts, the results
of its affirmative action program audit, and any other areas that might
affect the success of its affirmative action program. Id.
While the Section 503 regulations state that the use of quotas is
prohibited, contractors may, in practice, be induced to using quotas to
meet the utilization goal. DOL has concerns that the self-
identification and utilization goal regulations are inconsistent with
the ADA. Section 60-741.45 sets out utilization goals for persons with
disabilities, as well as requiring outreach and recruitment of
individuals with disabilities. Inherent in any utilization goal,
however, is the need for applicants with disabilities to identify their
conditions to the employer. But the ADA is clear; an employer may not,
prior to an offer of employment, make any disability-related inquiries,
even if that inquiry is related to the job. 42 U.S.C. 12112(d)(2)(A).
And even after an employee starts a job, an employer may make
disability-related inquiries only if such inquiries are job-related and
consistent with business necessity. 42 U.S.C. 12112(d)(4)(A).
OFCCP's previous reliance in the 2016 rulemaking on an August 8,
2013 letter provided by the U.S. Equal Employment Opportunity
Commission (EEOC) Legal Counsel to the OFCCP Director does not reflect
a binding view of the EEOC on the permissibility of inviting employment
candidates to self-identify as individuals with disabilities under the
ADA. That letter merely reflected the opinion of one legal officer at
the EEOC over ten years ago. It was not issued by any EEOC Commissioner
or voted on by the EEOC Commission. Moreover, in the ADA context, even
a formal opinion letter issued by the EEOC is of limited authority.
Unlike a Title VII EEOC opinion letter, EEOC ADA opinion letters cannot
provide employers with a defense to liability. Thus, the 2013 letter
reflects the opinion of one lawyer at the Commission and not the
Commission itself as to whether this practice was permissible under the
ADA.
Nothing in the statutory text of Section 503 requires use of a
utilization goal. Given the coercive effect of the placement goals and
the inducement on federal contractors to trespass the ADA's
restrictions on pre-conditional job offer disability inquiries in order
to avoid regulatory issues with DOL, DOL has determined that it is no
longer appropriate to seek a regulatory exception to what the ADA
otherwise prohibits. The ADA expressly states that: ``a covered entity
shall not conduct a medical examination or make inquiries of a job
applicant as to whether such applicant is an individual with a
disability or as to the nature or severity of such disability.'' 42
U.S.C. 12112(d)(2)(A). This text says ``shall not'' make inquiries as
to whether an applicant has a disability and does not include any
exception for pre-employment offer inquiries about disability status as
part of affirmative action requirements, regardless of whether or not
disclosure by the applicant is voluntary. Where Congress wanted to
create an exception to this text it knew how to do so and in fact did
so in 42 U.S.C. 12112(d)(3). Moreover, to the extent that DOL or EEOC
regulations had previously created an exception to this clear statutory
command prohibiting pre-employment inquiries about disabilities for
affirmative action-related purposes, that regulatory interpretation of
the text is now unlikely to survive scrutiny under Loper Bright
Enterprises v. Raimondo, 603 U.S. 369 (2023).
Further, DOL is proposing to rescind 41 CFR 60-741.45 because the
Section 503 utilization analysis required therein is dependent on the
E.O. 11246 requirements, which no longer have the force of law.
Specifically, the Section 503 regulations require contractors to
conduct the utilization analysis using the same job groups established
for their analyses under E.O. 11246. See 41 CFR 60-741.45(d)(2).
However, with the revocation of E.O. 11246, contractors no longer
conduct E.O. 11246 analyses. These changes have created confusion and
uncertainty for covered contractors and have made the current
regulatory framework for the Section 503 utilization analysis
unworkable. DOL will not impose new requirements for conducting the
Section 503 analyses, as doing so would be contrary to E.O. 14219,
which directs Federal agencies to implement deregulatory measures and
reduce undue burden on businesses. See E.O. 14219, ``Ensuring Lawful
Governance and Implementing the President's `Department of Government
Efficiency' Deregulatory Initiative,'' 90 FR 10583 (Feb. 25, 2025).
DOL also notes that the self-identification and utilization
analysis requirements are not required by the Section 503 statute. See
29 U.S.C. 793. By rescinding these burdensome requirements, DOL would
be fulfilling E.O. 14219's mandate to rescind or modify regulations
that are not authorized by clear statutory authority. See E.O. 14219,
``Ensuring Lawful Governance and Implementing the President's
`Department of Government Efficiency' Deregulatory Initiative,'' 90 FR
10583 (Feb. 25, 2025).
In addition to these changes, DOL also proposes to remove cross-
references and language related to the self-identification requirement
that are included in 41 CFR 60-741.23(c), 41 CFR 741.41, 41 CFR
741.44(f)(3), 41 CFR 60-741.44(k), 41 CFR 60-741.46(a)(2), 41 CFR
741.80(b), and Appendix A to Part 60-741, paragraph 2. With the
rescission of 41 CFR 60-741.42, these provisions will no longer be
applicable. DOL welcomes comments on these proposed changes,
particularly comments on whether any form of data collection on an
applicant or employee's disability status could be maintained
consistent with the ADA requirements at 42 U.S.C. 12112(d)(2)(A) and 42
U.S.C. 12112(d)(4)(A).
DOL is also proposing to remove a reference to 41 CFR part 60-3
that is included in 41 CFR 60-741.21(a)(7)(iii) and a reference to E.O.
11246 that is included in 41 CFR 741.46(d). DOL is proposing to remove
these references because they are related to the revoked E.O. 11246
authority. DOL is also proposing to correct a typographical error in 41
CFR 741.46(d) (correcting the spelling of ``Veterans' '').
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
E.O. 12866, ``Regulatory Planning and Review,'' 58 FR 51735 (Oct.
4, 1993), requires agencies, to the extent permitted by law, to (1)
propose or adopt a regulation only upon a reasoned determination that
its benefits justify its costs (recognizing that some benefits and
costs are difficult to quantify); (2) tailor regulations to impose the
least burden on society, consistent with obtaining regulatory
objectives, taking into account, among other things, and to the extent
practicable, the costs of cumulative regulations; (3) select, in
choosing among alternative regulatory approaches, those approaches that
maximize net benefits; (4) to the extent feasible, specify performance
objectives, rather than specifying the behavior or manner of compliance
that regulated entities must adopt; and (5) identify and assess
available alternatives to direct regulation, including providing
economic incentives to encourage the desired behavior, such as user
fees or marketable permits, or providing information upon which choices
can be made by the public.
[[Page 28496]]
Section 6(a) of E.O. 12866 also requires agencies to submit
``significant regulatory actions'' to the Office of Information and
Regulatory Affairs (OIRA) for review. OIRA has determined that this
proposed rule does not constitute a ``significant regulatory action''
under section 3(f) of E.O. 12866. Accordingly, this proposed rule was
not submitted to OIRA for review under E.O. 12866.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis (IRFA) and a
final regulatory flexibility analysis (FRFA) for any rule that by law
must be proposed for public comment, unless the agency certifies that
the rule, if promulgated, will not have a significant economic impact
on a substantial number of small entities.
DOL reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act. To the extent that the proposed changes may
result in cost savings for covered contractors, those cost savings
would largely apply large contractors who meet the affirmative action
program thresholds and are scheduled for compliance reviews (which
impose additional reporting requirements). Therefore, DOL has concluded
that the impacts of the proposed rule would not have a ``significant
economic impact on a substantial number of small entities,'' and that
the preparation of an FRFA is not warranted. DOL will transmit this
certification and supporting statement of factual basis to the Chief
Counsel for Advocacy of the Small Business Administration for review
under 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act (PRA)
The purpose of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., includes minimizing the paperwork burden on affected
entities. The PRA requires certain actions before an agency can adopt
or revise a collection of information, including publishing for public
comment a summary of the collection of information and a brief
description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, DOL conducts a preclearance consultation program to provide the
public and Federal agencies with an opportunity to comment on proposed
and continuing collections of information in accordance with the PRA.
See 44 U.S.C. 3506(c)(2)(A). This activity helps to ensure that the
public understands DOL's collection instructions, respondents can
provide the requested data in the desired format, reporting burden
(time and financial resources) is minimized, collection instruments are
clearly understood, and DOL can properly assess the impact of
collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information unless it is approved by the Office of Management and
Budget (OMB) under the PRA and it displays a currently valid OMB
control number. The public is also not required to respond to a
collection of information unless it displays a currently valid OMB
control number. In addition, notwithstanding any other provisions of
law, no person will be subject to penalty for failing to comply with a
collection of information if the collection of information does not
display a currently valid OMB control number (44 U.S.C. 3512).
This rulemaking potentially affects specific information
collections, such as OMB Control Number 1250-0005, which includes the
form contractors currently use to invite applicants and employees to
self-identify their disability. Any changes to DOL's collections will
be communicated through an upcoming 60-day Federal Register Notice.
D. Review Under Executive Order 13132
E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), imposes
certain requirements on Federal agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. The Executive Order requires agencies to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and to carefully assess
the necessity for such actions. The Executive Order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.
DOL has examined this proposed rule and has determined that it
would not have a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
E. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' imposes on Federal agencies the general duty to
adhere to the following requirements: (1) eliminate drafting errors and
ambiguity, (2) write regulations to minimize litigation, (3) provide a
clear legal standard for affected conduct rather than a general
standard, and (4) promote simplification and burden reduction. 61 FR
4729 (Feb. 7, 1996). Regarding the review required by section 3(a),
section 3(b) of E.O. 12988 specifically requires that Executive
agencies make every reasonable effort to ensure that the regulation:
(1) clearly specifies the preemptive effect, if any, (2) clearly
specifies any effect on existing Federal law or regulation, (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction, (4) specifies the retroactive
effect, if any, (5) adequately defines key terms, and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General.
Section 3(c) of E.O. 12988 requires Executive agencies to review
regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or it is unreasonable to
meet one or more of them. DOL has completed the required review and
determined that, to the extent permitted by law, this proposed rule
meets the relevant standards of E.O. 12988.
F. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a regulatory action likely to result in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy. 2
U.S.C. 1532(a) and (b). The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing
[[Page 28497]]
any requirements that might significantly or uniquely affect them.
DOL examined this proposed rule according to UMRA and its statement
of policy and determined that the proposed rule does not contain a
Federal intergovernmental mandate, nor is it expected to require
expenditures of $100 million or more in any one year by State, local,
and Tribal governments, in the aggregate, or by the private sector. As
a result, the analytical requirements of UMRA do not apply.
G. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This proposed rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOL has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
H. Review Under Executive Order 12630
Pursuant to E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (March
18, 1988), DOL has determined that this proposed rule would not result
in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
I. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to
review most disseminations of information to the public under
information quality guidelines established by each agency pursuant to
general guidelines issued by OMB. OMB's guidelines were published at 67
FR 8452 (Feb. 22, 2002). DOL has reviewed this proposed rule under the
OMB guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
J. Review Under Executive Order 13175
DOL has examined this proposed rule and determined that it does not
have tribal implications under E.O. 13175 that would require a tribal
summary impact statement. It does not ``have substantial direct effects
on one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.''
K. Review Under Additional Executive Orders and Presidential Memoranda
As detailed above, DOL has examined this proposed rule and has
determined that it is consistent with the policies and directives
outlined in E.O. 14173, ``Ending Illegal Discrimination and Restoring
Merit-Based Opportunity'' and E.O. 14219, ``Ensuring Lawful Governance
and Implementing the President's `Department of Government Efficiency'
Deregulatory Initiative.'' This proposed rule, if finalized as
proposed, is expected to be an E.O. 14192 deregulatory action.
List of Subjects in 41 CFR Parts 60-30 and 60-741
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Individuals with disabilities, Investigations, Labor.
For the reasons set forth in the preamble, and under the authority
of E.O. 14173 and 29 U.S.C. 793, as amended, DOL proposes to amend
chapter 60 in title 41 of the Code of Federal Regulations by removing
and reserving 41 CFR part 60-30 and by revising 41 CFR part 60-741, as
set forth below:
PART 60-30 [REMOVED AND RESERVED]
0
1. Effective March 31, 2026, remove and reserve 41 CFR part 60-30.
PART 60-741--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF FEDERAL CONTRACTORS AND SUBCONTRACTORS REGARDING INDIVIDUALS
WITH DISABILITIES
0
2. The authority citation for part 60-741 continues to read as follows:
Authority: 29 U.S.C. 705 and 793; E.O. 11758 (3 CFR, 1971-1975
Comp., p. 841).
0
3. Revise Sec. 60-741.21(a)(7)(iii) to read as follows:
Sec. 60-741.21 Prohibitions.
(a) * * *
(7) * * *
(i) * * *
(ii) * * *
(iii) The Uniform Guidelines on Employee Selection Procedures do
not apply to the Rehabilitation Act and are similarly inapplicable to
this part.
* * * * *
0
4. Revise Sec. 60-741.23 to read as follows:
Sec. 60-741.23 Medical Examinations and Inquiries.
* * * * *
(c) [Reserved]
(d) Confidentiality and use of medical information. (1) Information
obtained under this section regarding the medical condition or history
of any applicant or employee shall be collected and maintained on
separate forms and in separate medical files and treated as a
confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the applicant or employee and
necessary accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws
administered by OFCCP, including this part, or enforcing the Americans
with Disabilities Act, as amended, shall be provided relevant
information on request.
(2) Information obtained under this section regarding the medical
condition or history of any applicant or employee shall not be used for
any purpose inconsistent with this part.
0
5. Revise Sec. 60-741.41 to read as follows:
Sec. 60-741.41 Availability of affirmative action program.
The full affirmative action program shall be available to any
employee or applicant for employment for inspection upon request. The
location and hours during which the program may be obtained shall be
posted at each establishment.
Sec. 60-741.42 [REMOVED AND RESERVED]
0
6. Remove and reserve Sec. 60-741.42.
0
7. Amend Sec. 60-741.44 by revising paragraph (f)(3) and paragraph (k)
to read as follows:
Sec. 60-741.44 Required contents of affirmative action programs.
* * * * *
(f) * * *
(1) * * *
(2) * * *
(3) Assessment of external outreach and recruitment efforts. The
contractor shall, on an annual basis, review the outreach and
recruitment efforts it has taken over the previous twelve months to
evaluate their effectiveness in identifying and recruiting qualified
individuals with disabilities. The contractor shall document each
evaluation, including at a minimum the criteria it used to evaluate the
effectiveness of each effort and the
[[Page 28498]]
contractor's conclusion as to whether each effort was effective. The
contractor's conclusion as to the effectiveness of its outreach efforts
must be reasonable as determined by OFCCP in light of these
regulations. If the contractor concludes the totality of its efforts
were not effective in identifying and recruiting qualified individuals
with disabilities, it shall identify and implement alternative efforts
listed in paragraphs (f)(1) or (f)(2) of this section in order to
fulfill its obligations.
(4) * * *
(g) * * *
(h) * * *
(i) * * *
(j) * * *
(k) [Reserved]
Sec. 60-741.45 [REMOVED AND RESERVED]
0
8. Remove and reserve Sec. 60-741.45.
0
9. Amend Sec. 60-741.46 by revising paragraph (a)(2) and paragraph (d)
to read as follows:
Sec. 60-741.46 Voluntary affirmative action programs for employees
with disabilities.
(a) * * *
(1) * * *
(2) [Reserved]
(b) * * *
(c) * * *
(d) These voluntary training and development programs should not
result in discrimination against other groups and do not relieve a
contractor from liability for discrimination under this act or the
Vietnam Era Veterans' Readjustment Assistance Act.
0
10. Revise Sec. 60-741.65 to read as follows:
Sec. 60-741.65 Enforcement proceedings.
(a) General. (1) If a compliance evaluation, complaint
investigation, or other review by OFCCP finds a violation of the act or
this part, and the violation has not been corrected in accordance with
the conciliation procedures in this part, or OFCCP determines that
referral for consideration of formal enforcement (rather than
settlement) is appropriate, OFCCP may refer the matter to the Solicitor
of Labor with a recommendation for the institution of enforcement
proceedings to enjoin the violations, to seek appropriate relief, and
to impose appropriate sanctions, or any combination of these outcomes.
OFCCP may seek back pay and other make whole relief for aggrieved
individuals identified during a complaint investigation or compliance
review. Such individuals need not have filed a complaint as a
prerequisite to OFCCP seeking such relief on their behalf. Interest on
back pay shall be calculated from the date of the loss and compounded
quarterly at the percentage rate established by the Internal Revenue
Service (IRS) for the underpayment of taxes.
(2) In addition to the administrative proceedings set forth in this
section, the Director may, within the limitations of applicable law,
seek appropriate judicial action to enforce the contractual provisions
set forth in Sec. 60-741.5, including appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative
enforcement proceedings the contractor shall be provided an opportunity
for a formal hearing. All hearings conducted under the act and this
part shall be governed by the regulations at 41 CFR 60-741.65(c) to
(mm) and the Rules of Evidence set out in the Rules of Practice and
Procedure for Administrative Hearings Before the Office of
Administrative Law Judges contained in 29 CFR part 18, subpart B:
Provided, That a final administrative order shall be issued within one
year from the date of the issuance of the recommended findings,
conclusions, and decision of the Administrative Law Judge, or the
submission of any exceptions and responses to exceptions to such
decision (if any) whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate
Solicitor for Civil Rights and Labor-Management, Regional Solicitors
and Associate Regional Solicitors.
(3) [Reserved]
(c) Applicability of rules of practice for administrative
proceedings.
The regulations at 41 CFR 60-741.65(c) to (mm) provide the rules of
practice for all administrative proceedings that relate to the
enforcement of Section 503 of the Rehabilitation Act of 1973 (Section
503), as amended, including but not limited to proceedings instituted
against contractors or subcontractors covered by 41 CFR part 60-741. In
the absence of a specific provision, procedures shall be in accordance
with the Federal Rules of Civil Procedure.
(d) Waiver, modification.
Upon notice to all parties, the Administrative Law Judge may, with
respect to matters pending before him modify or waive any rule herein
upon a determination that no party will be prejudiced and that the ends
of justice will be served thereby.
(e) Computation of time.
In computing any period of time under these rules or in an order
issued hereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it
is a Saturday, Sunday, or legal holiday observed by the Federal
Government in which event it includes the next business day.
(f) Form, filing, service of pleadings and papers.
(1) Form. The original of all pleadings and papers in a proceeding
conducted under the 41 CFR 60-741.65 regulations shall be filed with
the Administrative Law Judge assigned to the case or with the Chief
Administrative Law Judge if the case has not been assigned. Every
pleading and paper filed in the proceeding shall contain a caption
setting forth the name of the agency instituting the proceeding, the
title of the action, the case file number assigned by the
Administrative Law Judge, and a designation of the pleading or paper
(e.g., complaint, motion to dismiss, etc.). The pleading or papers
shall be signed and shall contain the address and telephone number of
the person representing the party or the person on whose behalf the
pleading or paper was filed. Unless otherwise ordered for good cause by
the Administrative Law Judge regarding specific papers and pleadings in
a specific case, all such papers and pleadings are public documents.
(2) Service. Service upon any party shall be made by the party
filing the pleading or document in accordance with 29 CFR part 26. When
a party is represented by an attorney, the service shall be upon the
attorney.
(3) Proof of service. A certificate of the person serving the
pleading or other document, setting forth the manner of service, shall
be proof of the service.
(g) Prehearing procedures: Administrative complaint.
(1) Filing. The Solicitor of Labor, Associate Solicitor for Labor
Relations and Civil Rights Regional Solicitors and Regional Attorney
upon referral from the Office of Federal Contract Compliance Programs,
are authorized to institute enforcement proceedings by filing a
complaint and serving the complaint upon the contractor which shall be
designated as the defendant. The Department of Labor, OFCCP, as shall
be designated on plaintiff.
(2) Contents. The complaint shall contain a concise jurisdictional
statement, and a clear and concise statement sufficient to put the
defendant on notice of the acts or practices it is alleged to have
committed in violation of the order, the regulations, or its
contractual obligations. The complaint shall also contain a prayer
regarding the relief being sought, a statement of whatever sanctions
the Government will seek to impose and the name and address of the
attorney who will represent the Government.
(3) Amendment. The complaint may be amended once as a matter of
course
[[Page 28499]]
before an answer is filed, and the defendant may amend its answer once
as a matter of course not later than 10 days after the filing of the
original answer. Other amendments of the complaint or of the answer to
the complaint shall be made only by leave of the Administrative Law
Judge or by written consent of the adverse party; and leave shall be
freely given where justice so requires. An amended complaint shall be
answered within 14 days of its service, or within the time for filing
an answer to the original complaint, whichever period is longer. An
amended answer shall be responded to within 14 days of its service.
(h) Prehearing procedures: Answer.
(1) Filing and service. Within 20 days after the service of the
complaint, the defendant shall file an answer with the Chief
Administrative Law Judge if the case has not been assigned to an
Administrative Law Judge. The answer shall be signed by the defendant
or its attorney and served on the Government in accordance with Sec.
60-741.65(f)(2).
(2) Contents; failure to file. The answer shall (i) contain a
statement of the facts which constitute the grounds of defense, and
shall specifically admit, explain, or deny, each of the allegations of
the complaint unless the defendant is without knowledge, in which case
the answer shall so state; or (ii) state that the defendant admits all
the allegations of the complaint. The answer may contain a waiver of
hearing; and if not, a separate paragraph in the answer shall request a
hearing. The answer shall contain the name and address of the
defendant, or of the attorney representing the defendant. Failure to
file an answer or to plead specifically to any allegation of the
complaint shall constitute an admission of such allegation.
(3) Procedure, upon admission of facts. The admission, in the
answer or by failure to file an answer, of all the material allegations
of fact contained in the complaint shall constitute a waiver of
hearing. Upon such admission, the Administrative Law Judge, without
further hearing, may prepare his decision in which he shall adopt as
his proposed findings of fact the material facts alleged in the
complaint. The parties shall be given an opportunity to file exceptions
to his decision and to file briefs in support of the exceptions.
(i) Prehearing procedures: Notice of prehearing conference.
The Administrative Law Judge shall respond to defendant's request
for a hearing within 15 days and shall serve a notice of prehearing
conference on the parties. The notice shall contain the time and place
of the conference.
(j) Prehearing procedures: Motions; disposition of motions.
(1) Motions. Motions shall state the relief sought, the authority
relied upon and the facts alleged, and shall be filed with the
Administrative Law Judge. If made before or after the hearing itself,
the motions shall be in writing. If made at the hearing, motions may be
stated orally; but the Administrative Law Judge may require that they
be reduced to writing and filed and served on all parties in the same
manner as a formal motion. Unless otherwise ordered by the
Administrative Law Judge, written motions shall be accompanied by a
supporting memorandum. Within 10 days after a written motion is served,
or such other time period as may be fixed, any party may file a
response to a motion.
(2) Disposition of motions. The Administrative Law Judge may not
grant a written motion prior to expiration of the time for filing
responses thereto, except upon consent of the parties or following a
hearing, but may overrule or deny such motion without awaiting
response: Provided, That prehearing conferences, hearings, and
decisions need not be delayed pending disposition of motions.
(k) Prehearing procedures: Interrogatories and admissions as to
facts and documents.
(1) Interrogatories. Not later than 25 days prior to the date of
the hearing, except for good cause shown, or not later than 14 days
prior to such earlier date as the Administrative Law Judge may order,
any party may serve upon an opposing party written interrogatories.
Each interrogatory shall be answered separately and fully in writing
under oath, unless objected to. Answers are to be signed by the person
making them and objections by the attorney or by whoever is
representing the party. Answers and objections shall be filed and
served within 25 days of service of the interrogatory.
(2) Admissions. Not later than 14 days prior to the date of the
hearing, except for good cause shown, or not later than 14 days prior
to such earlier date as the Administrative Law Judge may order, any
party may serve upon an opposing party a written request for the
admission of the genuineness and authenticity of any relevant documents
described in and exhibited with the request, or for the admission of
the truth of any relevant matters of fact stated in the request. Each
of the matters as to which an admission is requested shall be deemed
admitted, unless within 25 days after service, the party to whom the
request is directed serves upon the requesting party a sworn statement
either (i) denying specifically the matter as to which an admission is
requested, or (ii) setting forth in detail the reasons why he cannot
truthfully either admit or deny such matters.
(3) Objections or failures to respond. The party submitting the
interrogatory or request may move for an order with respect to any
objection or other failure to respond.
(l) Prehearing procedures: Production of documents and things and
entry upon land for inspection and other purposes.
(1) After commencement of the action, any party may serve on any
other party a request to produce and/or permit the party, or someone
acting on his behalf, to inspect and copy any unprivileged documents,
phonorecords, and other compilations, including computer tapes and
printouts which contain or may lead to relevant information and which
are in the possession, custody, or control of the party upon whom the
request is served. If necessary, translation of data compilations shall
be done by the party furnishing the information.
(2) After commencement of the action, any party may serve on any
other party a request to permit entry upon designated property which
may be relevant to the issues in the proceeding and, which is in the
possession or control of the party upon whom the request is served for
the purpose of inspection, measuring, surveying or photographing,
testing, or sampling the property or any designated object or area.
(3) Each request shall set forth with reasonable particularity the
items to be inspected and shall specify a reasonable time and place for
making the inspection and performing the related acts.
(4) The party upon whom the request is served shall respond within
25 days after the service of the request. The response shall state,
with respect to each item, that inspection and related activities will
be permitted as requested, unless there are objections, in which case
the reasons for each objection shall be stated. The party submitting
the request may move for an order with respect to any objection or to
other failure to respond.
(m) Prehearing procedures: Depositions upon oral examination.
(1) Depositions; notice of examination. After commencement of the
action, any party may take the testimony of any person, including a
party, having personal or expert knowledge of the matters in issue, by
deposition upon oral examination. A party desiring to take a deposition
shall
[[Page 28500]]
give reasonable notice in writing to every other party to the
proceeding, and may use an administrative subpoena. The notice shall
state the time and place for taking the deposition and the name and
address of each person to be examined, if known, and, if the name is
not known, a general description sufficient to identify him or the
particular class or group to which he belongs. The notice shall also
set forth the categories of documents the witness is to bring with him
to the deposition, if any. A copy of the notice shall be furnished to
the person to be examined unless his name is unknown.
(2) Production of witnesses; obligation of parties; objections. It
shall be the obligation of each party to produce for examination any
person, along with such documents as may be requested, at the time and
place, and on the date, set forth in the notice, if that party has
control over such person. Each party shall be deemed to have control
over its officers, agents, employees, and members. Unless the parties
agree otherwise, depositions shall be held within the county in which
the witness resides or works. The party or prospective witness may file
with the Administrative Law Judge an objection within 5 days after
notice of production of such witness is served, stating with
particularity the reasons why the party cannot or ought not to produce
a requested witness. The party serving the notice may move for an order
with respect to such objection or failure to produce a witness. All
errors or irregularities in compliance with the provisions of this
section shall be deemed waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness
after such defect is or, with due diligence, might have been
ascertained.
(3) Before whom taken; scope of examination; failure to answer.
Depositions may be taken before any officer authorized to administer
oaths by the laws of the United States or of the place where the
deposition is held. At the time and place specified in the notice, each
party shall be permitted to examine and cross-examine the witness under
oath upon any matter which is relevant to the subject matter of the
proceeding, or which is reasonably calculated to lead to the production
of relevant and otherwise admissible evidence. All objections to
questions, except as to the form thereof, and all objections to
evidence are reserved until the hearing. A refusal or failure on the
part of any person under the control of a party to answer a question
shall operate to create a presumption that the answer, if given, would
be unfavorable to the controlling party, unless the question is
subsequently ruled improper by the Administrative Law Judge or the
Administrative Law Judge rules that there was valid justification for
the witness' failure or refusal to answer the question: Provided, That
the examining party shall note on the record during the deposition the
question which the deponent has failed, or refused to answer, and state
his intention to invoke the presumption if no answer is forthcoming.
(4) Subscription; certification; filing. The testimony shall be
reduced to typewriting, either by the officer taking the deposition or
under his direction, and shall be submitted to the witness for
examination and signing. If the deposition is not signed by the witness
because he is ill, dead, cannot be found, or refuses to sign it, such
fact shall be noted in the certificate of the officer and the
deposition may then be used as fully as though signed. The officer
shall immediately deliver the original copy of the transcript, together
with his certificate, in person or by mail to the Administrative Law
Judge. Copies of the transcript and certificate shall be furnished to
all persons desiring them, upon payment of reasonable charges, unless
distribution is restricted by order of the Administrative Law Judge for
good cause shown.
(5) Rulings on admissibility; use of deposition. Subject to the
provisions of this section, objection may be made at the hearing to
receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were
then present and testifying. Any part or all of a deposition, so far as
admissible in the discretion of the Administrative Law Judge, may be
used against any party who was present or represented at the taking of
the deposition or who had reasonable notice, in accordance with the
following provisions:
(i) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(ii) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing agent, or
was designated to testify on behalf of a public or private corporation,
partnership, association, or governmental agency which is a party may
be used by the adverse party for any purpose.
(iii) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the administrative law judge
finds: (A) That the witness is dead; or (B) that the witness is unable
to attend or testify because of age, illness, infirmity, or
imprisonment; or (C) that the party offering the deposition has been
unable to procure the attendance of the witness by subpoena; or (D)
upon application and notice, that such exceptional circumstances exist
as to make it desirable to allow the deposition to be used.
(iv) If only part of a deposition is introduced in evidence by a
party, any party may introduce any other parts by way of rebuttal and
otherwise.
(6) Stipulations. If the parties so stipulate in writing,
depositions may be taken before any person at any time or place, upon
any notice and in any manner, and when so taken may be used like other
depositions.
(n) Prehearing procedures: Prehearing conferences.
(1) Upon his own motion or the motion of the parties, the
Administrative Law Judge may direct the parties or their counsel to
meet with him for a conference to consider:
(i) Simplification of the issues;
(ii) Necessity or desirability of amendments to pleadings for
purposes of clarification, simplification, or limitation;
(iii) Stipulations, admissions of fact and of contents and
authenticity of documents;
(iv) Limitation of number of witnesses;
(v) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(vi) Such other matters as may tend to expedite the disposition of
the proceedings.
(2) The record shall show the matters disposed of by order and by
agreement in such pretrial conferences. The subsequent course of the
proceeding shall be controlled by such action.
(o) Prehearing procedures: Consent findings and order.
(1) General. At any time after the issuance of a complaint and
prior to or during the reception of evidence in any proceeding, the
parties may jointly move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be in the discretion of the Administrative Law Judge after
consideration of the nature of the proceeding, the requirements of the
public interest, the representations of the parties, and the
probability of an agreement being reached which will
[[Page 28501]]
result in a just disposition of the issues involved.
(2) Content. Any agreement containing consent findings and an order
disposing of a proceeding shall also provide:
(i) That the order shall have the same force and effect as an order
made after full hearing;
(ii) That the entire record on which any order may be based shall
consist solely of the complaint and the agreement;
(iii) That any further procedural steps are waived; and
(iv) That any right to challenge or contest the validity of the
findings and order entered into in accordance with the agreement is
waived.
(3) Submission. On or before the expiration of the time granted for
negotiations, the parties or their counsel may:
(i) Submit the proposed agreement to the Administrative Law Judge
for his consideration;
(ii) Inform the Administrative Law Judge that agreement cannot be
reached.
(4) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed, the
Administrative Law Judge, within 30 days, shall accept such agreement
by issuing his decision based upon the agreed findings, and his
decision shall constitute the final Administrative order.
(p) Hearings and Related Matters: Designation of Administrative Law
Judges.
Hearings shall be held before an Administrative Law Judge of the
Department of Labor who shall be designated by the Chief Administrative
Law Judge of the Department of Labor. After commencement of the
proceeding but prior to the designation of an Administrative Law Judge,
pleadings and papers shall be filed with the Chief Administrative Law
Judge.
(q) Hearings and Related Matters: Authority and responsibilities of
Administrative Law Judges.
The Administrative Law Judge shall propose findings and conclusions
to the Secretary on the basis of the record. In order to do so, he
shall have the duty to conduct a fair hearing, to take all necessary
action to avoid delay, and to maintain order. He shall have all powers
necessary to those ends, including, but not limited to, the power to:
(1) Hold conferences to settle, simplify, or fix the issues in a
proceeding, or to consider other matters that may aid in the
expeditious disposition of the proceeding by consent of the parties or
upon his own motion;
(2) Require parties to state their position with respect to the
various issues in the proceeding;
(3) Require parties to produce for examination those relevant
witnesses and documents under their control; and require parties to
answer interrogatories and requests for admissions in full;
(4) Administer oaths;
(5) Rule on motions, and other procedural items or matters pending
before him;
(6) Regulate the course of the hearing and conduct of participants
therein;
(7) Examine and cross-examine witnesses, and introduce into the
record documentary or other evidence;
(8) Receive, rule on, exclude, or limit evidence and limit lines of
questioning or testimony which are irrelevant, immaterial, or unduly
repetitious;
(9) Fix time limits for submission of written documents in matters
before him and extend any time limits established by this part upon a
determination that no party will be prejudiced and that the ends of
justice will be served thereby;
(10) Impose appropriate sanctions against any party or person
failing to obey an order under these rules which may include:
(i) Refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting it from introducing
designated matters in evidence;
(ii) Excluding all testimony of an unresponsive or evasive witness,
or determining that the answer of such witness, if given, would be
unfavorable to the party having control over him; and
(iii) Expelling any party or person from further participation in
the hearing;
(11) Take official notice of any material fact not appearing in
evidence in the record, which is among the traditional matters of
judicial notice;
(12) Recommend whether the respondent is in current violation of
the order, regulations, or its contractual obligations, as well as the
nature of the relief necessary to insure the full enjoyment of the
rights secured by the order;
(13) Issue subpoenas; and
(14) Take any action authorized by these rules.
(r) Hearings and Related Matters: Appearances.
(1) Representation. The parties or other persons or organizations
participating pursuant to 41 CFR 60-741.65 have the right to be
represented by counsel.
(2) Failure to appear. In the event that a party appears at the
hearing and no party appears for the opposing side, the party who is
present shall have an election to present his evidence in whole or such
portion thereof sufficient to make a prima facie case before the
Administrative Law Judge. Failure to appear at the hearing shall not be
deemed to be a waiver of the right to be served with a copy of the
Administrative Law Judge's recommended decision and to file exceptions
to it.
(s) Hearings and Related Matters: Appearance of witnesses.
(1) A party wishing to procure the appearance at the hearing of any
person having personal or expert knowledge of the matters in issue
shall serve on the prospective witness a notice, which may be
accomplished by an administrative subpoena, setting forth the time,
date, and place at which he is to appear for the purpose of giving
testimony. The notice shall also set forth the categories of documents
the witness is to bring with him to the hearing, if any. A copy of the
notice shall be filed with the Administrative Law Judge and additional
copies shall be served upon the opposing parties.
(2) It shall be the obligation of each party to produce for
examination any person, along with such documents as may be requested,
at the time and place, and on the date, set forth in the notice, if
that party has control over such person. Each party shall be deemed to
have control over its officers, agents, employees, and members. Due
regard shall be given to the convenience of witnesses in scheduling
their testimony so that they will be detained no longer than reasonably
necessary.
(3) The party or prospective witness may file an objection within 5
days after notice of production of such witness is served stating with
particularity the reasons why the party cannot produce a requested
witness. The party serving the notice may move for an order with
respect to such objection or failure to produce a witness.
(t) Hearings and Related Matters: Rules of evidence.
In any hearing, decision, or administrative review conducted
pursuant to this part, all evidentiary matters shall be governed by
Office of Administrative Law Judges' Rules of evidence at 29 CFR part
18, subpart B.
(u) Hearings and Related Matters: Objections; exceptions; offer of
proof.
(1) Objections. If a party objects to the admission or rejection of
any evidence or to the limitation of the scope of any examination or
cross-examination or the failure to limit such scope, he shall state
briefly the grounds for such objection. Rulings on all objections shall
appear in
[[Page 28502]]
the record. Only objections made on the record may be relied upon
subsequently in the proceedings.
(2) Exceptions. Formal exception to an adverse ruling is not
required. Rulings by the Administrative Law Judge shall not be appealed
prior to the transfer of the case to the Secretary, but shall be
considered by the Secretary upon filing exceptions to the
Administrative Law Judge's recommendations and conclusions.
(3) Offer of proof. An offer of proof made in connection with an
objection taken to any ruling excluding proffered oral testimony shall
consist of a statement of the substance of the evidence which counsel
contends would be adduced by such testimony; and, if the excluded
evidence consists of evidence in written form or consists of reference
to documents, a copy of such evidence shall be marked for
identification and shall accompany the record as the offer of proof.
(v) Hearings and Related Matters: Ex parte communications.
The Administrative Law Judge shall not consult any person, or
party, on any fact in issue unless upon notice and opportunity for all
parties to participate. No employee or agent of the Federal Government
engaged in the investigation and prosecution of this case shall
participate or advise in the rendering of the recommended or final
decision in the case, except as witness or counsel in the proceeding.
(w) Hearings and Related Matters: Oral argument.
Any party shall be entitled upon request to a reasonable period
between the close of evidence and termination of the hearing for oral
argument. Oral arguments shall be included in the official transcript
of the hearing.
(x) Hearings and Related Matters: Official transcript.
The official transcripts of testimony taken, together with any
exhibits, briefs, or memorandums of law, shall be filed with the
Administrative Law Judge. Transcripts of testimony may be obtained from
the official reporter by the parties and the public as provided in
section 11(a) of the Federal Advisory Committee Act (86 Stat. 770).
Upon notice to all parties, the Administrative Law Judge may authorize
such corrections to the transcript as are necessary to reflect
accurately the testimony.
(y) Hearings and Related Matters: Summary judgment.
(1) For the Government. At any time after the expiration of 20 days
from the commencement of the action, or after service of a motion for
summary judgment by the respondent, the Government may move with or
without supporting affidavits for a summary judgment upon all claims or
any part.
(2) For defendant. The defendant may, at any time after
commencement of the action, move with or without supporting affidavits
for summary judgment in its favor as to all claims or any part.
(3) Other parties. Any other party to a formal proceeding under
this part may support or oppose motions for summary judgment made by
the Government or respondent, in accordance with this section, but may
not move for a summary judgment in his own behalf.
(4) Statement of uncontested facts. All motions for summary
judgment shall be accompanied by a ``Statement of Uncontested Facts''
in which the moving party sets forth all alleged uncontested material
facts which shall provide the basis for its motion. At least 5 days
prior to the time fixed for hearing on the motion, any party contending
that any material fact regarding the matter covered by the motion is in
dispute, shall file a ``Statement of Disputed Facts.'' Failure to file
a ``Statement of Disputed Facts'' shall be deemed as an admission to
the ``Statement of Uncontested Facts.''
(5) Motion and proceedings. The motion shall be served upon all
parties at least 15 days before the time fixed for the hearing on the
motion. The adverse party or parties may serve opposing affidavits
prior to the day of hearing. The judgment sought shall be rendered
forthwith if the complaint and answer, depositions, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Summary judgment rendered
for or against the Government or the respondent shall constitute the
findings and recommendations on the issues involved. Hearings on
motions made under this section shall be scheduled by the
Administrative Law Judge.
(6) Case not fully adjudicated on motion. If on motion under this
section judgment is not rendered upon the whole case or for all the
relief asked and a final hearing is necessary, the Administrative Law
Judge at the hearing of the motion, by examining the notice and answer
and the evidence before him and by interrogating counsel, shall, if
practicable, ascertain what material facts exist without substantial
controversy and what material facts are actually and in good faith
controverted. He shall thereupon make an order specifying the facts
that appear without substantial controversy, including the extent to
which relief is not in controversy, and directing such further
proceedings as are just. At the hearing on the merits, the facts so
specified shall be deemed established, and the final hearing shall be
conducted accordingly.
(z) Hearings and Related Matters: Participation by interested
persons.
(1) To the extent that proceedings hereunder involve employment of
persons covered by a collective bargaining agreement, and compliance
may necessitate a revision of such agreement, any labor organization
which is a signatory to the agreement shall have the right to
participate as a party.
(2) Other persons or organizations shall have the right to
participate as parties if the final Administrative order could
adversely affect them or the class they represent, and such
participation may contribute materially to the proper disposition of
the proceedings.
(3) Any person or organization wishing to participate as a party
under this section shall file with the Administrative Law Judge and
serve on all parties a petition within 25 days after the commencement
of the action or at such other time as ordered by the Administrative
Law Judge, so long as it does not disrupt the proceeding. Such petition
shall concisely state: (i) Petitioner's interest in the proceedings;
(ii) who will appear for petitioner; (iii) the issues on which
petitioner wishes to participate; and (iv) whether petitioner intends
to present witnesses.
(4) The Administrative Law Judge shall determine whether each
petitioner has the requisite interest in the proceedings and shall
permit or deny participation accordingly. Where petitions to
participate as parties are made by individuals or groups with common
interest, the Administrative Law Judge may request all such petitioners
to designate a single representative to represent all such petitioners:
Provided, That the representative of a labor organization qualifying to
participate under paragraph (1) of the section must be permitted to
participate in the proceedings. The Administrative Law Judge shall give
each petitioner written notice of the decision on his petition; and if
the petition is denied, he shall briefly state the grounds for denial
and shall then treat the petition as a request for participation as
amicus curiae. The Administrative Law Judge shall give written notice
to each party of each petition granted.
(5) Any other interested person or organization wishing to
participate as amicus curiae shall file a petition before the
commencement of the final hearing with the Administrative Law Judge.
[[Page 28503]]
Such petition shall concisely state: (i) The petitioner's interest in
the hearing; (ii) who will represent the petitioner; and (iii) the
issues on which petitioner intends to present argument. The
Administrative Law Judge may grant the petition if he finds that the
petitioner has a legitimate interest in the proceedings, and that such
participation may contribute materially to the proper disposition of
the issues. An amicus curiae is not a party but may participate as
provided in this section.
(6) An amicus curiae may present a brief oral statement at the
hearing at the point in the proceeding specified by the Administrative
Law Judge. He may submit a written statement of position to the
Administrative Law Judge prior to the beginning of a hearing and shall
serve a copy on each party. He may also submit a brief or written
statement at such time as the parties submit briefs and exceptions, and
he shall serve a copy on each party.
(aa) Post-Hearing Procedures: Proposed findings of fact and
conclusions of law.
Within 20 days after receipt of the transcript of the testimony,
each party and amicus may file a brief. Such briefs shall be served
simultaneously on all parties and amici, and a certificate of service
shall be furnished to the Administrative Law Judge. Requests for
additional time in which to file a brief shall be made in writing, and
copies shall be served simultaneously on the other parties. Requests
for extensions shall be received not later than 3 days before the date
such briefs are due. No reply brief may be filed except by special
permission of the Administrative Law Judge.
(bb) Post-Hearing Procedures: Record for recommended decision.
The transcript of testimony, exhibits, and all papers, documents,
and requests filed in the proceedings, including briefs, but excepting
the correspondence section of the docket, shall constitute the record
for decision.
(cc) Post-Hearing Procedures: Recommended decision.
Within a reasonable time after the filing of briefs, the
Administrative Law Judge shall recommend findings, conclusions, and a
decision. These recommendations shall be certified, together with the
record for recommended decision, to the Administrative Review Board,
United States Department of Labor, for a final Administrative order.
The recommended findings, conclusions, and decision shall be served on
all parties and amici to the proceeding.
(dd) Post-Hearing Procedures: Exceptions to recommended decisions.
Within 14 days after receipt of the recommended findings,
conclusions, and decision, any party may submit exceptions to said
recommendation. These exceptions may be responded to by other parties
within 14 days of their receipt by said parties. All exceptions and
responses shall be filed with the Administrative Review Board, United
States Department of Labor. Service of such briefs or exceptions and
responses shall be made simultaneously on all parties to the
proceeding. Requests to the Administrative Review Board, United States
Department of Labor, for additional time in which to file exceptions
and responses shall be in writing and copies shall be served
simultaneously on other parties. Requests for extensions must be
received no later than 3 days before the exceptions are due.
(ee) Post-Hearing Procedures: Record.
After expiration of the time for filing briefs and exceptions, the
Administrative Review Board, United States Department of Labor, shall
make a decision, which shall be the Administrative order, on the basis
of the record. The record shall consist of the record for recommended
decision, the rulings and recommended decision of the Administrative
Law Judge and the exceptions and briefs filed subsequent to the
Administrative Law Judge's decision.
(ff) Post-Hearing Procedures: Administrative Order.
After expiration of the time for filing, the Administrative Review
Board, United States Department of Labor, shall make a decision which
shall be served on all parties. If the Administrative Review Board,
United States Department of Labor, concludes that the defendant has
violated Section 503, the equal opportunity clause, or the regulations,
an Administrative Order shall be issued enjoining the violations, and
requiring the contractor to provide whatever remedies are appropriate,
and imposing whatever sanctions are appropriate, or any of the above.
In any event, failure to comply with the Administrative Order shall
result in the immediate cancellation, termination, and suspension of
the respondent's contracts and/or debarment of the respondent from
further contracts.
(gg) Expedited Hearing Procedures: Expedited hearings--when
appropriate.
Expedited Hearings may be used, inter alia, when a contractor or
subcontractor has violated a conciliation agreement; has not adopted
and implemented an acceptable affirmative action program; has refused
to give access to or to supply records or other information as required
by the equal opportunity clause; or has refused to allow an on-site
compliance review to be conducted.
(hh) Expedited Hearing Procedures: Administrative complaint and
answer.
(1) Expedited hearings shall be commenced by filing an
administrative complaint in accordance with 41 CFR 60-741.65(g). The
complaint shall state that the hearing is subject to these expedited
hearing procedures.
(2) The answer shall be filed in accordance with 41 CFR
741.65(h)(1) and (2).
(3) Failure to request a hearing within the 20 days provided by 41
CFR 60-741.65(h)(1) shall constitute a waiver of hearing, and all the
material allegations of fact contained in the complaint shall be deemed
to be admitted. If a hearing is not requested or is waived, within 25
days of the complaint's filing, the Administrative Law Judge shall
adopt as findings of fact the material facts alleged in the complaint,
and shall order the appropriate sanctions and/or penalties sought in
the complaint. The Administrative Law Judge's findings and order shall
constitute a final Administrative order, unless the Office of the
Solicitor, U.S. Department of Labor, files exceptions to the findings
and order within 10 days of receipt thereof. If the Office of the
Solicitor, U.S. Department of Labor, files exceptions, the matter shall
proceed in accordance with 41 CFR 60-741.65(ll).
(4) If a request for a hearing is received within 20 days as
provided by 41 CFR 60-741.65(h)(1), the hearing shall be convened
within 45 days of receipt of the request and shall be completed within
15 days thereafter, unless more hearing time is required.
(ii) Discovery.
(1) Any party may serve requests for admissions in accordance with
41 CFR 60-741.65(k)(2) and (3).
(2) Witness lists and hearing exhibits will be exchanged at least
10 days in advance of the hearing.
(3) For good cause shown, and upon motion made in accordance with
41 CFR 60-741.65(j), the Administrative Law Judge may allow the taking
of depositions. Other discovery will not be permitted.
(jj) Conduct of hearing.
(1) At the hearing, the Government shall be given an opportunity to
demonstrate the basis for the request for sanctions and/or remedies,
and the contractor shall be given an opportunity to show that the
violation complained of did not occur and/or that good cause or good
faith efforts excuse the alleged violations. Both parties shall be
allowed to present evidence and argument and to cross-examine
witnesses.
[[Page 28504]]
(2) The hearing shall be informal in nature, and the Administrative
Law Judge shall not be bound by formal rules of evidence.
(kk) Recommended decision after hearing.
Within 15 days after the hearing is concluded, the Administrative
Law Judge shall recommend findings, conclusions, and a decision. The
Administrative Law Judge may permit the parties to file written post-
hearing briefs within this time period, but the Administrative Law
Judge's recommendations shall not be delayed pending receipt of such
briefs. These recommendations shall be certified, together with the
record, to the Administrative Review Board, United States Department of
Labor, for a final Administrative order. The recommended decision shall
be served on all parties and amici to the proceeding.
(ll) Exceptions to recommendations.
Within 10 days after receipt of the recommended findings,
conclusions and decision, any party may submit exceptions to said
recommendations. Exceptions may be responded to by other parties within
7 days after receipt by said parties of the exceptions. All exceptions
and responses shall be filed with the Administrative Review Board,
United States Department of Labor. Briefs or exceptions and responses
shall be served simultaneously on all parties to the proceeding.
(mm) Final Administrative Order.
After expiration of the time for filing exceptions, the
Administrative Review Board, United States Department of Labor, shall
issue an Administrative Order which shall be served on all parties.
Unless the Administrative Review Board, United States Department of
Labor, issues an Administrative Order within 30 days after the
expiration of the time for filing exceptions, the Administrative Law
Judge's recommended decision shall become a final Administrative Order
which shall become effective on the 31st day after expiration of the
time for filing exceptions. Except as to specific time periods required
in this subsection, 41 CFR 60-741.65(ff) shall be applicable to this
section.
0
11. Revise Sec. 60-741.80 to read as follows:
Sec. 60-741.80 Recordkeeping.
(a) General requirements. Except as set forth in paragraph (b) of
this section, any personnel or employment record made or kept by the
contractor shall be preserved by the contractor for a period of two
years from the date of the making of the record or the personnel action
involved, whichever occurs later. However, if the contractor has fewer
than 150 employees or does not have a Government contract of at least
$150,000, the minimum record retention period shall be one year from
the date of the making of the record or the personnel action involved,
whichever occurs later, except as set forth in paragraph (b) of this
section. Such records include, but are not necessarily limited to,
records relating to requests for reasonable accommodation; the results
of any physical examination; job advertisements and postings;
applications and resumes; tests and test results; interview notes; and
other records having to do with hiring, assignment, promotion,
demotion, transfer, lay-off or termination, rates of pay or other terms
of compensation, and selection for training or apprenticeship. In the
case of involuntary termination of an employee, the personnel records
of the individual terminated shall be kept for a period of two years
from the date of the termination, except that contractors that have
fewer than 150 employees or that do not have a Government contract of
at least $150,000 shall keep such records for a period of one year from
the date of the termination. Where the contractor has received notice
that a complaint of discrimination has been filed, that a compliance
evaluation has been initiated, or that an enforcement action has been
commenced, the contractor must preserve all personnel records relevant
to the complaint, compliance evaluation, or action until final
disposition of the complaint, compliance evaluation or action. The term
``personnel records relevant to the complaint, compliance evaluation,
or action'' will include, for example, personnel or employment records
relating to the aggrieved person and to all other employees holding
positions similar to that held or sought by the aggrieved person and
application forms or test papers completed by an unsuccessful applicant
and by all other candidates for the same position as that for which the
aggrieved person applied and was rejected.
(b) Records with three-year retention requirement. Records required
by Sec. 60-741.44(f)(4) shall be maintained by all contractors for a
period of three years from the date of the making of the record.
(c) Failure to preserve records. Failure to preserve complete and
accurate records as required by this part constitutes noncompliance
with the contractor's obligations under the act and this part. Where
the contractor has destroyed or failed to preserve records as required
by this section, there may be a presumption that the information
destroyed or not preserved would have been unfavorable to the
contractor: Provided, That this presumption shall not apply where the
contractor shows that the destruction or failure to preserve records
results from circumstances that are outside of the contractor's
control.
0
12. Amend Appendix A to Part 60-741 by revising paragraph 2 to read as
follows:
Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
* * * * *
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide reasonable accommodation for
applicants and employees of whose disabilities the contractor has
actual knowledge. Section 60-741.44(d) provides that if an employee
with a known disability is having significant difficulty performing
his or her job and it is reasonable to conclude that the performance
problem may be related to the disability, the contractor is required
to confidentially inquire whether the problem is disability related
and if the employee is in need of a reasonable accommodation.
* * * * *
Dated: June 26, 2025.
Catherine Eschbach,
Director, Office of Federal Contract Compliance Programs.
[FR Doc. 2025-12233 Filed 6-30-25; 8:45 am]
BILLING CODE 4510-CM-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.