Congress Questions OFCCP’s Legal Authority to Establish a Numerical Hiring Standard
For the second time in as little as three months Congress has stepped in to shut down the Office of Federal Contract Compliance Program’s (OFCCP) aggressive efforts to expand their jurisdictional role. The first time being when Congress added provisions to the National Defense Authorization Act which removed pharmacies, medical institutions, and other health care providers who participate in the TRICARE network from OFCCP’s jurisdiction.
Most recently the House of Representatives’ Committee on Education and the Workforce (CEW) sent a letter, dated January 27, 2012, to U.S Department of Labor Secretary Hilda Solis outlining their concerns of OFCCP’s December 9, 2011 Notice of Proposed Rulemaking (NPRM) regarding the OFCCP’s legal authority under Section 503 that permits OFCCP to establish numerical hiring standards or quotas.
The letter questions OFCCP’s legal authority and points out conflicts with statutory language of the Americans with Disabilities Act.
OFCCP has been given a deadline of February 10, 2012 to respond to the following requests of CEW:
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Identify and explain OFCCP’s statutory authority under Section 503 to establish a numerical hiring standard.
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Identify and explain the basis for OFCCP’s decision that federal contractors’ good faith efforts are insufficient with regard to affirmative action under Section 503.
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Identify and explain the basis for OFCCP’s assumption that job applicants and contractors’ current employees would understand the legal definition of "disability," as defined in the NPRM’s prescribed self-identification notice.
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Under proposed section 60-741.44(b), OFCCP assumes contractors would spend 30 minutes per year to draft written "statement[s] of reasons explaining the circumstances for rejecting individuals with disabilities for vacancies and training programs.” Simple math would suggest the amount of time required would far exceed this estimate.
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Explain how OFCCP determined the 30 minutes per year estimate.
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Under proposed section 60-741.44(d), OFCCP failed to consider the costs federal contractors would incur to make their "electronic or online job application systems compatible with assistive technology commonly used by individuals with disabilities, such as screen reading and speech recognition software." Likewise,
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Under proposed section 60-741.44(g), OFCCP failed to consider the economic burdens associated with discussing the NPRM’s new affirmative action requirements with all employees, during, for example, orientation and training events. Explain why OFCCP failed to consider the costs of contractors’ compliance with these provisions of proposed sections 60-741.44(d) and (g).
What Contractors Should Do
It is clear that the OFCCP’s December 9, 2011 NPRM places an enormous burden on contractors as well as conflicts with existing ADA laws. Contractors should contact their congressional representatives or contact any of the representatives below and voice your concerns.
