A proposed new rule that requires federal contractors to pay closer attention to their recruiting and hiring practices of individuals with disabilities has the contracting community up in arms about the potential cost burdens, so much so that now Congress is getting involved.

As Compliance Week earlier reported, The Office of Federal Contract Compliance Programs—the Labor Department division responsible for ensuring that federal contractors comply with Equal Employment Opportunity laws—proposed new rules in December that require federal contractors to heed an exhaustive list of obligations to ensure compliance with non-discrimination and affirmative action requirements regarding individuals with disabilities.

In response to those concerns, the House of Representatives' Committee on Education and the Workforce on Jan. 27 sent a letter to U.S. Department of Labor Secretary Hilda Solis requesting additional information and documentation to clarify issues raised by the OFCCP proposed rules.

The letter signals a “significant and encouraging development,” because it shows that Congress is “paying attention to the concerns of the contractor community and understands the vast repercussions that are associated with the massive changes to the disability regulations,” states a client alert from law firm Seyfarth Shaw.

Among one of the most controversial changes the agency has proposed is a provision that requires federal contractors and sub-contractors to set a 7 percent hiring goal for individuals with disabilities for each job group—such as management and operations—not just the workforce as a whole. In response, the Committee's letter questions the OFCCP's legal authority under Section 503 to establish a numerical hiring standard. “We also are concerned that a hiring standard would, in effect, institute a quota, which has been met with great scrutiny from the Supreme Court.”

Echoing another concern expressed by the contracting community, the Committee further took issue with contractors being required to ask job applicants to self-identify as disabled. This requirement appears to conflict with the American with Disabilities Act, which prohibits employers from asking disability-related questions before an offer for employment has been made.

Additionally, the Committee raises the potential burdens associated with the proposed rules' “myriad new paperwork and recordkeeping requirements.” The Committee urges the OFCCP to “weigh closely the related concerns of affected stakeholders, who are best able to quantify proposed burdens and anticipate unintended consequences,” the letter stated.

Included with the Committee's letter are instructions and definitions for responding to the Committee's Document Requests.

Six Specific Inquiries

In light of these concerns, the Committee seeks responses to six specific inquiries, as well as all documents and communications related to the following inquiries:

Identify and explain the OFCCP's statutory authority under Section 503 to establish a numerical hiring standard.

Identify and explain the basis for the OFCCP's decision that federal contractors' good-faith efforts are insufficient affirmative action under Section 503.

Identify and explain the basis for the 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.

The 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. Explain how the OFCCP determined the 30 minutes per year estimate.

The 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.”

The OFCCP failed to consider the economic burdens associated with discussing the rulemaking's new affirmative action requirements with all employees, during, for example, orientation and training events. Explain why the OFCCP failed to consider the costs of contractors' compliance with these provisions.

To provide sufficient time for the OFCCP to review the inquiries above, the Committee also is requesting that the OFCCP extend the comment period by 90 days from the current closing date of Feb. 7.