In August 2013, the Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) issued an affirmative action rule related to hiring disabled workers. In November, ABC filed an injunction against the rule. Below are a set of frequently asked questions on both OFCCP’s rule and ABC’s challenge to that rule.

What is OFCCP’s affirmative action rule?
This Office of Federal Contract Compliance Programs’ has issued a rule that sets new nondiscrimination and general affirmative action requirements, in addition to requirements that apply to affirmative action programs. (Federal contractors were already required to comply with a number of requirements under previous OFCCP rules; but the new rule imposes a number of additional burdens that caused ABC to file its legal challenge).

The new rule establishes arbitrary “goals”—that are essentially quotas—of 7 percent for hiring disabled workers.  The new rule also imposes burdensome data collection requirements on federal contractors, including a new requirement to solicit “self-identification” of disabilities from all employee applicants. 

For construction contractors, the rule also means they will have to create written utilization analyses for the first time. These analyses require federal contractors to document their workforce statistics to determine whether the percentage of “protected” employees meets affirmative action requirements for federal projects. In addition, contractors that fail to hit the 7 percent goal will have to create a plan to address any problems found in the analysis.

The rule is scheduled to go into effect March 24, 2014.

*COMPLIANCE NOTE: Contractors with a previous written Affirmative Action Program (AAP) for disabled workers and protected veterans in place on March 24 may maintain that AAP until the end of their AAP year and delay their compliance with the new AAP requirements of Subpart C of the Final Rule until the start of their next AAP cycle. In addition, contractors are reminded that they must comply with the other requirements of the Final Rule, in subparts A, B, D and E, by the effective date.

Who does the rule impact?
The nondiscrimination and general affirmative action requirements impact all government contractors with contracts or subcontracts greater than $10,000.

The affirmative action program requirements, including the new information gathering requirements and written utilization analyses, impact federal contractors with contracts or subcontracts of $50,000 or more and 50 or more employees. They particularly impact federal construction contractors because of the new requirements imposed on them related to documentation of “protected” employees.

Didn’t federal contractors already make an effort to hire disabled workers?

Yes. Federal contractors already were required to engage in affirmative action to hire individuals with disabilities and industry studies show that these individuals already are appropriately represented in the federal contracting sector. 

Why is ABC concerned with the rule?
Section 503 of the Rehabilitation Act already required federal contractors and subcontractors to maintain affirmative action and nondiscrimination programs and there was no evidence that contractors weren’t already meeting their obligation. There is also nothing to support the arbitrary “goals” and burdensome data gathering requirements listed in the final rule related to hiring persons with disabilities.

ABC is particularly concerned about the provisions requiring construction contractors and subcontractors to maintain written documentation and track workforce statistics to determine whether they are meeting these “goals.” Not only are the paperwork and reporting requirements completely new to the construction industry, OFCCP failed to take that fact into account in when releasing cost estimates for complying with the rule. 

OFCCP also ignored the unique nature of the construction industry and its workforce, which the agency itself has characterized as ‘fluid’ and ‘transitory.’ Historically, this unique workforce has warranted a unique approach toward affirmative action compliance.

In addition, requirements that applicants and employees self-identify as having a “disability,” is confusing, intrusive and unworkable, and violates both the letter and the spirit of the Rehabilitation  Act.

What is ABC’s lawsuit about?
ABC filed a request for an injunction in the U.S. District Court for the District of Columbia Nov. 19 against the OFCCP rule that drastically alters federal contractors’ existing affirmative action and nondiscrimination obligations for individuals with disabilities. The lawsuit points out that OFCCP exceeded its statutory authority when it issued the rule. If granted, the injunction would stop the rule from going into effect in March 24, 2014. 

Why did ABC file this lawsuit?
ABC supports OFCCP’s statutory mission to address employment discrimination against individuals with disabilities and remains committed to placing these people in good construction jobs. ABC believes this rule will do nothing to increase employment opportunities for individuals with disabilities because the new burdens it imposes mean many construction contractors are likely to stop pursuing government construction projects. Particularly impacted are likely to be small businesses that currently provide services but lack the resources to meet the rule’s new burdensome requirements.

ABC also believes the OFCCP did not have the statutory authority to issue the rule.

Does ABC’s lawsuit address any other OFCCP rules?
ABC’s lawsuit only addresses the OFCCP rule that imposes burdensome reporting requirements and sets arbitrary “goals” related to hiring individuals with disabilities.  ABC’s suit does not challenge in any way the separate OFCCP rule relating to hiring protected veterans.