To implement the provisions of Chapter 2016-3, Laws of Florida. The proposed rule adds provisions requiring affirmative action planning for individuals who have a disability, clarifies the requirements for affirmative action planning for women and ...

 

DEPARTMENT OF MANAGEMENT SERVICES

Personnel Management System

RULE NO.:RULE TITLE:

60L-40.002Equal Employment Opportunity and Affirmative Action

PURPOSE AND EFFECT: To implement the provisions of Chapter 2016-3, Laws of Florida. The proposed rule adds provisions requiring affirmative action planning for individuals who have a disability, clarifies the requirements for affirmative action planning for women and minorities, and adds language providing for the voluntary self-identification of individuals who have a disability.

SUMMARY: The proposed rule provides amendments that implement Chapter 2016-3, Laws of Florida; create or revise provisions regarding affirmative action planning; and adds language regarding voluntary self-identification of individuals who have a disability.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 110.1055, 110.112(2)(a) and (3)(f), 110.1221, 110.201(1) FS.

LAW IMPLEMENTED: 110.105(2), 110.112, 110.1221 110.233(1), 110.403(1)(h), 110.605(1)(d) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Martina Rogers, [e-mail] or [phone].. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Martina Rogers, [e-mail] or [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

60L-40.002 Equal Employment Opportunity and Affirmative Action.

(1) The Department shall assist agencies in ensuring equal employment opportunity (EEO) through affirmative action. Toward this end, the Department shall:

(a) Provide technical assistance and training in agencies’ development and implementation of the affirmative action plan required by subsection 60L-40.002(4), F.A.C.

(b) Provide technical assistance and training in equal employment opportunity and affirmative action principles for agency supervisory employees. The Department may provide these services directly or contract for them, with each participating agency reimbursing the Department for costs incurred through such contract. Once the Department approves the content of any training program, the Department may delegate the training to the agency.

(c) Report to the Governor each year on the implementation, continuance, revision, and results of each agency’s affirmative action plan for the previous year. At the Department’s request, agencies shall provide information necessary for this report.

(2) Each agency’s affirmative action plan shall include the following provisions related to women, minorities and individuals who have a disability:

(a) A cover page that provides the agency name and address; name, title and phone number of person completing the plan; name, title, phone number and signature of the agency head and AA/EEO Officer; the source of data cited in the plan, and plan year.

(b) A table of contents that lists the major sections of the affirmative action plan and reflects the starting page number for each section.

(c) An organizational profile that displays the agency’s organizational structure, identifying each major organizational unit. The agency shall provide demographic information for all supervisors and employees within each unit and shall provide a total employee count; a count by gender; a count by race or ethnicity; and a count of individuals who have a disability.

(d) An affirmation of policies on EEO, anti-harassment, and individuals who have a disability that states the agency’s commitment to equal employment opportunity, promoting the employment of individuals who have a disability, providing reasonable accommodations, maintaining a work environment free of unlawful discrimination and harassment. The agency shall also include provisions that inform employees of the agency’s complaint procedures and affirmative action program.

(e) A dissemination of policy statement that explains internal and external dissemination of the agency’s equal employment opportunity policies.

(f) An outline of the agency’s training plan for all employees on the principles of equal employment opportunity, including disability-related workplace issues designed to promote an inclusive culture. The outline of the training plan for managers and supervisors must show that the training includes the principles of equal employment opportunity and affirmative action.

(g) An identification of the individual(s) accountable for directing and implementing the affirmative action plan and a description of their duties and responsibilities as they relate to implementation of the affirmative action plan.

(h) A description of the agency’s plan to periodically review its personnel processes to ensure equal access. The plan shall include a description of the personnel processes reviewed and any necessary modifications or development of new processes.

(i) An identification and description of the agency’s audit and reporting system that is used to measure the effectiveness of its affirmative action program.

(j) The agency’s statement as to the degree to which its goals and objectives are being met.

(k) The agency’s identification of any needs for remedial action.

(l) An identification of the agency’s impediments to providing equal employment opportunity.  The agency shall include an analysis of the agency’s employment processes to include personnel procedures and activities (e.g., hires, promotions, separations, accommodations, return-to-work, etc.), and any other areas that the agency finds may impact the success of the affirmative action program.

(m) A description of the steps the agency will take to eliminate or reduce the impact of the agency’s impediments to providing equal employment opportunity.

(n) An evaluation of the progress made in reaching the agency’s goals for the prior year. The agency shall provide a statistical representation of placements made toward the goals, a narrative explanation of goals met, and “good faith efforts” made in instances in which the agency was unable to meet its goals.

(o) An analysis that estimates the number of qualified minorities, women, or individuals with a disability available for employment in a given EEO job category, expressed as a percentage of all qualified persons available for employment in the EEO job category. In order to determine whether barriers to equal employment opportunity may exist within a particular EEO job category, the agency must use this availability determination to establish a benchmark against which the demographic composition of the agency’s workforce can be compared.

(p) A comparison between the agency’s actual workforce and the qualified available workforce in the relevant labor market. The agency shall establish goals where the agency has identified an underutilization in the workforce using an industry recognized calculation method for determining underutilization.

(2) Agencies shall not discriminate or take retaliatory action against an individual because that individual has opposed an unlawful employment practice or has made a charge, testified, or participated in any manner in an investigation, proceeding, or hearing relating to equal employment opportunity or affirmative action.

(3) Each agency shall include in its affirmative action plan as described in (2) the following additional components regarding individuals who have a disability:

(a) Documentation of the agency’s review of physical and mental job qualification standards to ensure that physical and mental job qualification standards are job-related and consistent with business necessity. The agency shall also explain any actions it intends to take based on this review.

(b) The process by which the agency will review a request for an accommodation from an individual who has a disability and provide a reasonable accommodation in response to such a request.

(c) A description of how the agency will promote employment opportunities for individuals who have a disability.  This description must include a description of the agency’s strategies for outreach, recruitment, hiring and retention.

(d) Data collected on hiring and selection practices that have assisted the agency in identifying problem areas and meeting the reporting requirements of 110.112(2)(e), (3)(c)2., and (d), F.S. The agency must also provide data reports which must include:

1. A report on the number of requisitions, applicants, applicants interviewed, and applicants hired.

2. A report on the number of agency applicants, new hires, promotions, separations, demotions and original appointments.

(3) Each agency shall conduct an analysis of its work force to determine whether underrepresentation exists, that is, whether the percentage of an EEO group within an occupation or an EEO job category is lower than the corresponding percentage in the available labor market. If underrepresentation exists, the agency shall establish annual affirmative action goals in an effort to achieve full utilization of EEO groups underrepresented in its work force.

(4) When an individual is provided the opportunity to voluntarily self-identify whether he or she has a disability, the following options must be presented for the individual’s selection:

(a) I do not have a disability;

(b) I do have a disability; or

(c) I choose not to answer.

(4) Each agency shall develop and implement a written plan to promote equal employment opportunity and to meet the agency’s established affirmative action goals. The plan shall include the following elements:

(a) Effective date of the plan and the time period that it covers.

(b) Signature of agency head and EEO/AA officer.

(c) EEO/AA officer information.

(d) Policy statement concerning an internal agency complaint procedure, which procedure shall include provisions to advise employees of the procedure and to prohibit retaliation for employing the procedures.

(e) Description of agency organization.

(f) A list of the supervisory personnel to receive training and a schedule for such training.

(g) Work force analysis, which shall include:

1. Statistical comparison of current work force with available labor market in the relevant geographic recruitment area.

2. Previous year’s goals and a statement as to whether these goals were met.

3. Measurable goals for the applicable time period for all EEO job categories with underrepresentation. Measurable goals may also be established in occupations with underrepresentation.

4. Recommendations for corrective action, where necessary.

(5) The opportunity for an individual to self-identify whether he or she has a disability under (4) shall advise the individual of the following:

(a) The information will be used solely in connection with affirmative action obligations and efforts;

(b) The information is being requested on a voluntary basis;

(c) The information will be kept confidential as medical information in accordance with the Americans with Disabilities Act (ADA); and

(d) The refusal to provide this information will not subject the individual to any adverse treatment.

Rulemaking Authority 110.1055, 110.112(2)(a), 110.112(3)(f)(2)(a), 110.1221, 110.201(1)(a), 110.403(1), 110.605(1) FS. Law Implemented 110.105(1)(2), 110.112(2)(a)(1), 110.112(3)(f)110.1221, 110.233(1), 110.403(1)(h), 110.605(1)(d) FS. History–New 1-1-02, Amended 4-3-03, Formerly 60L-33.007, Amended                  .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Sharon D. Larson, Director

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Erin Rock, Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 8/29/2018

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 2, 2018