ABC on Feb. 21 filed comments with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in response to a proposed rule that would set a national hiring goal for federal contractors to employ workers with disabilities, in addition to requiring greatly increased recordkeeping and affirmative action steps. Under the proposal, OFCCP would mandate federal contractors to set a goal of having persons with disabilities comprise at least 7 percent of their workforces. OFCCP is also considering an additional goal of having at least 2 percent of federal contractors’ employees comprised of persons with “certain particularly severe” disabilities. 

In its comments, ABC reiterated its support for OFCCP’s longstanding goal of nondiscrimination in federal contracting; however, ABC also called attention to the significant burden that would be placed on construction contractors if the proposal were implemented. 

Although OFCCP estimates that compliance with the proposal would take between 5-30 minutes and cost $81 million annually, ABC countered that those estimates are significantly understated for the construction industry, which will be required to perform utilization analyses on its workforce for the first time. 

A utilization analysis is when a contractor documents its workforce statistics to determine whether the percentage of “protected” employees meets the requirements dictated on the project. Currently, most federal contractors must perform these analyses for minorities and women; however, due to the fluid nature of employment in the construction industry that renders the effort useless, construction contractors are exempt from this requirement. That means performing the analysis for disabled workers, which is more difficult, would require new systems to be put in place, resulting in additional hours of work or the added cost of hiring an outside consultant. 

In its comments, ABC pointed out that this “one size fits all industries” rule is arbitrary and capricious and that it fails to take into account the very real differences between industries and the unique challenges confronting construction contractors in particular – including the fact that construction is still one of the most physically demanding and potentially dangerous industries. 

ABC also pointed out that not only does OFCCP lack statutory authority to implement the rule, but that it has failed to provide any evidence that federal contractors as a whole are currently failing to meet their obligations toward hiring persons with disabilities.  

“OFCCP has collected no data on which to support the premise that government contractors’ affirmative action efforts are failing to meet their objectives,” ABC wrote. “Even worse, OFCCP has ignored or unfairly minimized the regulatory burdens that the proposal will impose on government contractors, particularly small business contractors.” 

ABC concluded its comments by asking for a withdrawal of the proposal so it can be modified to maintain consistency with the OFCCP’s current practices regarding the construction industry.