In a significant raising of the stakes in the debate over whether OFCCP will grant more time to file comments on the proposed 503 regulations, the House of Representatives Workforce Committee has requested that the comment period be extended by 90 days.  In a letter dated January 27, 2012, the Committee on Education and the Workforce requested that more time be provided to comment on the proposed affirmative action and non-discrimination regulations published by the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) under Section 503 of the Rehabilitation Act.  Those proposed regulations would constitute a self-described “sea change” in the structure and purpose of affirmative action, not least by imposing a 7% hiring “goal” for individuals with disabilities.

Specifically, the Workforce Committee letter asks OFCCP to provide an additional 90 days for comments beyond the current closing date of February 7, and to answer specific, fundamental questions by February 10 regarding the development of the rule and the OFCCP’s cost estimates and justifications.  The letter is signed by the full Committee Chairman John Kline and the Subcommittee on Health, Employment, Labor and Pensions Chairman Phil Roe.

The Congressional inquiry asks OFCCP to address six fundamental questions by February 10^th, including:

1. Identify and explain OFCCP's statutory authority under Section 503 to establish a numerical hiring standard.
2. Identify and explain the basis for OFCCP's decision that federal contractors' good faith efforts are insufficient affirmative action under Section 503.
3. Identify and explain OFCCP's statutory authority to require contractors to ask job applicants to self-identify as a qualified individual with a disability, given that the ADA prohibits disability-related questions before an offer of employment has been made.
4. 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.
5. Under proposed section 60-741.44(b), OFCCP assumes contractors would spend 30 minutes per year to draft and provide 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 OFCCP determined the 30 minutes per year estimate.
6. 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, under proposed section 60741.44(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).

OFCCP will not be able to rebuff Congress when it is exercising oversight functions and requesting additional time for the comment period, as OFCCP did in response to the extension requests from the federal contractor community and others.

Depending on OFCCP’s responses, these types of inquiries by Congress often can result in a follow-up hearing to further address the inquiries.  At a minimum, the Congressional inquiry is welcome news to the federal contractor community because it will require that OFCCP provide some basic information regarding how it can justify the far-reaching proposed affirmative action and nondiscrimination 503 regulations.  Frankly, we think that OFCCP is going to be hard pressed to provide credible explanations to some of these questions. 

Stay tuned for OFCCP’s responses!