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which specialize in training or educat- the Guides shall be used only to detering handicapped individuals.
mine the existence of impairment (9) The contractor should use all without regard to the degree of imavailable resources to continue or es pairment. tablish on the job training programs.
(43 FR 49276, Oct. 20, 1978; 43 FR 51402, (j) Sheltered workshops. Contracts
Nov. 3, 1978) with sheltered workshops do not constitute affirmative action in lieu of em $ 60-741.8 Listing of employment openployment and advancement of quali
ings. fied handicapped individuals in the
Contractors should request State contractor's own workforce. Contracts
employment security agencies to refer with sheltered workshops may be in
qualified handicapped individuals for cluded within an affirmative action
consideration under their affirmative program if the sheltered workshop
action programs. trains employees for the contractor and the contractor is obligated to hire 8 60-741.9 Labor unions and recruiting trainees at full compensation when
and training agencies. such trainees become qualified as
(a) Whenever performance in ac"qualified handicapped individual” as defined in $ 60-741.2.
cordance with the affirmative action
clause or any matter contained in the [43 FR 49276, Oct. 20, 1978; 43 FR 51402,
regulations in this part may necessiNov. 3, 1978]
tate a revision of a collective bargain
ing agreement, the labor union or $ 60-741.7 Determination of handicap.
unions which are parties to such (a) Any handicapped individual
agreements shall be given an adequate filing a complaint with the Director
opportunity to present their views to under this part shall submit with his
the Director. or her complaint a signed statement (b) The Director shall use his or her specifying the handicapping impair best efforts, directly or through conment or situation (see $ 60-741.2 defi
tractors, subcontractors, local officials, nition of “handicapped individual”). If
vocational rehabilitation facilities, and the Director determines that further
all other available instrumentalities, documentation is necessary, he or she
to cause any labor union, recruiting may require the complainant to pro
and training agency or other reprevide additional information.
sentative of workers who are or may (b) Any contractor requiring a deter
be engaged in work under contracts mination of an applicant's or employ
and subcontracts to cooperate with, ee's handicap may require the appli
and to assist in, the implementation of cant or employee to provide medical
the purposes of the Act. documentation of the impairment or, in the alternative, may require the ap
Subpart B-General Enforcement and plicant or employee to undergo a medical examination at the contrac
Complaint Procedure tor's expense. (c) Any determination of handicap
$ 60-741.20 Subcontracts. required pursuant to paragraph (b) of Each nonexempt prime contractor this section must meet the require and subcontractor shall include the afments of $ 60-741.5(c) and must be for firmative action clause prescribed in the purpose of affirmative action and $ 60-741.4 in each of their nonexempt proper job placement. Information ob subcontracts. The clause may be incortained therefrom shall not be used to porated by reference in accordance exclude or otherwise limit the employ with $ 60-741.22. ment opportunities of qualified handicapped individuals.
$ 60-741.21 Adaptation of language. (d) All medical documentation re- Such necessary changes in language quired under this section shall be may be made to the affirmative action based upon the American Medical As- clause (see $ 60-741.4) as shall be apsociation Guides to the Evaluation of propriate to identify properly the parPermanent Impairment, provided that ties and their undertakings.
$ 60-741.22 Incorporation by reference.
the alleged violation, unless the time The affirmative action clause and
for filing is extended by the Director
for good cause shown. the regulations contained in this part
(b) Referral to contractor. When a may be incorporated by reference in
complaint is filed by an employee of a all contracts and subcontracts.
contractor and the contractor has an $ 60-741.23 Incorporation by operation of
applicable internal review procedure, the Act and agency regulations.
the complaint shall be referred to the
contractor for processing under that By operation of the Act, the affirma
procedure. The complaint and all active action clause shall be considered
tions taken thereunder shall be kept to be a part of every contract and sub
confidential by the contractor. If contract required by the Act and the
there has not been a resolution of the regulations in this part to include such
complaint under that procedure satisa clause, whether or not it is physical
factory to the complainant within 60 ly incorporated in such contracts and
days of the referral, the Department whether or not there is a written con
of Labor will proceed as provided in tract between the agency and the con
this section. tractor.
(c) Contents of complaints. Com
plaints must be signed by the com$ 60–741.24 Duties of agencies.
plainants or their authorized repre(a) General responsibility. Each sentatives and must contain the folagency shall cooperate with the Direc
lowing information: (1) Name and adtor in the performance of his or her dress (including telephone number) of responsibilities under the Act. Such
the complainant, (2) name and address cooperation shall include the responsi
of the contractor or subcontractor bility to insure that contractors are who committed the alleged violation, fully cognizant of their obligations
(3) a description of the act or acts conunder the Act and this part, to provide
sidered to be a violation, (4) a signed the Director with any information statement that the individual is han which comes to its attention that the
capped or has a history of a handicap contractor is not in compliance with
or other documentation of impairment the Act or this part, and to take such or was regarded by the contractor as actions for noncompliance as set forth
having an impairment, and (5) other in $ 60-741.28 as may be ordered by
pertinent information available which the Director.
will assist in the investigation and res(b) (Reserved)
olution of the complaint, including the
name of any known Federal agency $ 60-741.25 Evaluations by the Director.
with which the employer has contractThe Director shall be primarily re ed. sponsible for undertaking such investi. (d) Incomplete information. Where a gations of complaints and other mat complaint contains incomplete inforters as well as evaluations of contrac- mation, the Director shall seek the tor and agency performance as may be needed information from the comnecessary to assure that the purposes plainant. If the information is not furof section 503 of the Rehabilitation nished to the Director within 60 days Act of 1973 are being effectively car- of the date of such request, the case ried out.
may be closed.
(e) Investigations. The Department 8 60-741.26 Complaint procedures.
of Labor shall institute a prompt in(a) Place and time of filing. Any ap vestigation of each complaint, and plicant for employment with a con shall be responsible for developing a tractor or any employee of a contrac- complete case record. A complete case tor may, personally or by an author- record consists of the following: (1) ized representative, file a written com Name and address of each person inplaint with the Director alleging a vio- terviewed, (2) a summary of his or her lation of the Act or the regulations in statement, (3) copies or summaries of this part. Such complaint must be pertinent documents, (4) a narrative filed within 180 days from the date of summary of the evidence disclosed in
the investigation as it related to each existence of a violation of the affirmacharge, and (5) recommended findings tive action clause or these regulations, and resolution.
the matter should be resolved by in(f) (Reserved]
formal means, including conciliation, (g) Resolution of matters. (1) If the and persuasion, whenever possible. complaint investigation shows no vio- This will also include establishing a lation of the Act or regulations in this corrective action program in accord. part, or if the Director decides not to ance with $ 60-741.26(g)(2). Where the initiate administrative or legal pro apparent violation is not resolved by ceedings against the contractor, the informal means, the Director shall complainant shall be so notified. proceed in accordance with the enWithin 30 days, the complainant may forcement procedures contained in request review by the Director of such this part. a finding or decision.
(b) Judicial enforcement. In addition (2) Where an investigation indicates to the administrative remedies set that the contractor has not complied forth herein, the Director may, within with the requirements of the Act or the limitations of applicable law, seek this part, efforts shall be made to appropriate judicial action to enforce secure compliance through concilla- the cortractual provisions set forth in tion and persuasion within a reason $ 60-741.4 including appropriate inable time. Before the contractor or junctive relief. subcontractor can be found to be in
(c) Withholding progress payments. compliance, it must make a specific With the prior approval of the Direccommitment, in writing, to take cor
tor so much of the accrued payment rective action to meet the require due on the contract or any other conments of the Act and this part. The
tract between the government prime commitment must indicate the precise
contractor and the Federal Governaction to be taken and dates for com
ment may be withheld as necessary to pletion. The time period allowed
correct any violations of the provisions should be no longer than the mini
of the affirmative action clause. mum period necessary to effect such
(d) Termination. A contract or subchanges. Upon approval of such com
contract may be canceled or terminatmitment by the Director, the contrac
ed, in whole or in part, for failure to tor may be considered in compliance
comply with the provisions of the afon condition that the commitments
firmative action clause. are kept.
(e) Debarment. A prime contractor (3) Where the complaint investiga
or subcontractor or a prospective contion indicates a violation of the Act or
tractor or subcontractor may be deregulations in this part (and the com
barred from receiving future contracts plaint has not been resolved by infor
for failure to comply with the provimal means), the Director shall afford
sions of the affirmative action clause. the contractor an opportunity for a hearing in accordance with $ 60-741.29. $ 60-741.29 Formal hearings. [43 FR 49276, Oct. 20, 1978; 43 FR 51402. (a) Hearing opportunity. An opporNov. 3, 1978)
tunity for a formal hearing shall be af.
forded to a prime contractor or a sub$ 60-741.27 Noncompliance with the af.
contractor or a prospective prime confirmative action clause.
tractor or subcontractor by the DirecNoncompliance with the prime con tor in any of the following circumtractor's or subcontractor's obligations stances: under the affirmative action clause is (1) An apparent violation of the af. a ground for taking appropriate action firmative action clause by a contractor for noncompliance as set forth in § 60- or subcontractor, as shown by any in741.28 by the Director, prime contrac- vestigation, is not resolved by informal tor, or subcontractor.
means and a hearing is requested; or
(2) The Director proposes to cancel $ 60-741.28 Actions for noncompliance.
or terminate the contract or withhold (a) General. In every case where any progress payments, or cause the concomplaint investigation indicates the tract to be canceled or terminated or
progress payments to be withheld, in tor after such actions have been taken. whole or in part, on a contract or con- No agency may issue a waiver under tracts, or to require cancellation or $ 60-741.3(b)(1) to any contractor subtermination of a contract or subcon- ject to such action without prior aptract or withholding of progress pay. proval of the Director. ments; or
(3) The Director proposes to declare $ 60-741.31 Contractor ineligibility list. a prime contractor or subcontractor The Director shall distribute periodiineligible for further contracts or sub- cally a list to all executive departcontracts under the Act.
ments and agencies giving the names (b) Hearing practice and procedure.
of prime contractors and subcontrac(1) All hearings conducted under sec
tors who have been declared ineligible tion 503 of the Rehabilitation Act of under the regulations in this part and 1973, as amended, and the regulations the Act. in this part shall be governed by the Rules of Practice for Administrative $ 60-741.32 Disputed matters related to Proceedings to Enforce Equal Oppor the affirmative action program. tunity Under Executive Order 11246
The procedures set forth in the regcontained in 41 CFR Part 60-30 except
ulations in this part govern all disthat complaints shall be issued by the
putes relative to a contractor's compliAssociate Solicitor, Division of Labor
ance with the affirmative action Relations and Civil Rights, Office of
clause and the requirements of this the Solicitor, rather than by the So
Part. Any disputes relating to issues licitor of Labor.
other than compliance, including con(2) For the purposes of hearings pur
tract costs arising out of the contracsuant to this part 60-741, references in
tor's efforts to comply, shall be deter41 CFR Part 60-30 to “Executive
mined by the disputes clause of the Order 11246" shall mean section 503 of
contract. the Rehabilitation Act of 1973, as amended; to "equal opportunity clause" shall mean the affirmative
Subpart C—Ancillary Matters action clause published at 41 CFR 60741.4; and to "regulations" shall mean
$ 60-741.50 Reinstatement of ineligible the regulations contained in this part
contractors and subcontractors. 60-741.
Any prime contractor or subcontrac(3) The Administrative Law Judge's tor debarred from further contracts or recommended findings, conclusions subcontracts under the Act may reand decision shall be certified to the quest reinstatement in a letter directAssistant Secretary, Employment ed to the Director. In connection with Standards Administration rather than the reinstatement proceedings, the to the Secretary (see 41 CFR 60- prime contractor or subcontractor 30.27). Accordingly, exceptions to the shall be required to show that it has recommended decision (41 CFR 60- established and will carry out employ30.28) shall be filed with the Assistant ment policies and practices in compliSecretary, Employment Standards Ad- ance with the affirmative action ministration, and the final Adminis
clause. trative Order contemplated by 41 CFR 60-30.30 shall be issued by the Assist. § 60-741.51 Intimidation and interference. ant Secretary, Employment Standards The sanctions and penalties conAdministration. Except for these tained in this regulation may be exerchanges in procedure, all the other cised by the Director against any provisions of the rules of practice cited prime contractor or subcontractor, in this 41 CFR 60-741.29(b) shall who fails to take all necessary steps to remain in full force and effect.
insure that no person intimidates,
threatens, coerces, or discriminates $ 60-741.30 Notification of agencies.
against any individual for the purpose The Director shall notify the heads of interfering with the filing of a comof all agencies of any action for non plaint, furnishing information, or ascompliance taken against any contrac- sisting or participating in any manner
in an investigation, compliance review, hearing, or any other activity related to the administration of the Act.
$ 60-741.52 Recordkeeping.
(a) Each contractor and subcontractor shall maintain for a period not less than 1 year records regarding complaints and actions taken thereunder, and such employment or other records as required by the Director or by this Part and shall furnish such information in the form required by the Director or as the Director deems necessary for the adminstration of the Act and regulations issued under this Part.
(b) Failure to maintain complete and accurate records as required under this section or failure to update annually the affirmative action program as required by $ 60-741.5(b) constitutes noncompliance with the contractor's or subcontractor's obligatons under the affirmative action clause and is a ground for the imposition of appropriate sanctions.
such impairment, or is regarded as having such an impairment.
“Life activities” may be considered to in. clude communication, ambulation, selfcare, socialization, education, vocational training, employment, transportation, adapting to housing, etc. For the purpose of section 503 of the Act, primary attention is given to those life activities that affect employability.
The phrase "substantially limits” means the degree that the impairment affects employability. A handicapped individual who is likely to experience difficulty in securing, retaining or advancing in employment would be considered substantially limited.
"Has a record of such an impairment” means that an individual may be completely recovered from a previous physical or mental impairment. It is included because the attitude of employers, supervisors, and coworkers toward that previous impairment may result in an individual experiencing difficulty in securing, retaining, or advancing in employment. The mentally restored, those who have had heart attacks or cancer often experience such difficulty. Also, this part of the definition would include individuals who may have been erroneously classified and may experience discrimination based on this misclassification. This group may include persons such as those who have been misclassified as mentally retarded or mentally restored.
"Is regarded as having such an impairment” refers to those individuals who are perceived as having a handicap, whether an impairment exists or not, but who, because of attitudes or for any other reason, are regarded as handicapped by employers, or supervisors who have an effect on the individual securing, retaining or advancing in employment
$ 60-741.53 Access to records of employ.
ment. Each prime contractor and subcontractor shall permit access during normal business hours to its places of business, books, records and accounts pertinent to compliance with the Act, and all rules and regulations promulgated pursuant thereto for the purposes of complaint investigations, and investigations of perfo:mance under the affirmative action clause of the contract or subcontract. Information obtained in this manner shall be used only in connection with the administration of the Act.
$ 60-741.54 Rulings and interpretations.
Rulings under or interpretations of the Act and the regulations contained in this part 741 shall be made by the Secretary or his or her designee.
APPENDIX B 1. This employer is a government contractor subject to section 503 of the Rehabilitation Act of 1973, which requires government contractors to take affirmative action to employ and advance in employment qualified handicapped individuals. If you have such a handicap and would like to be considered under the affirmative action program, please tell us. Submission of this information is voluntary and refusal to provide it will not subject you to discharge or disciplinary treatment. Information obtained concerning individuals shall be kept confidential, except that (i) supervisors and managers may be informed regarding restrictions on the work or duties of handicapped individuals, and regarding necessary accommodations, (ii) first aid and safety personnel may be informed, when and to the extent appropriate, if the condition might require emergency treatment, and (iii) government
APPENDIX A-GUIDELINES ON THE APPLICA
TION OF THE DEFINITION “HANDICAPPED INDIVIDUAL'
The Rehabilitation Act of 1973, as amend ed, defines a handicapped individual for the purposes of the program as any person who has a physical or mental impairment which substantially limits one or more of such per son's major life activities, has a record of