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President's Perspective
In its continuing war
on private business,
Barack Obama is now
in the process of forcing
government contractors
to hire specific numbers
of disabled and severely
disabled workers.
Writing a column for
the Wall Street Journal
on April 8, 2012,
James Bovard wrote in
a column titled “The Wrong Way to Help the
Handicapped,” that the proposed regulations
would be a blessing for trial lawyers. “A deluge
of record-keeping requirements will provide
plenty of rope to hang contractors.”
National ABC had filed comments opposing this
legislation on Feb. 21 with the Department of
Labor’s Office of Federal Contract Compliance
Programs (OFCCP).
The proposed rule 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.
“All of that is about to change under the
Department’s NPRM,” wrote National ABC Vice
President for Federal Affairs, Geoffrey Burr.
“Notwithstanding the absence of any statutory
authority under Section 503 itself, OFCCP is
proposing to mandate arbitrary target quotas for
the hiring of disabled workers by all contractors
with a government contract or subcontract of
$50,000 or more and 50 or more employees—a
threshold that will impact more than 20,000
small businesses in all industries that currently
contract with the federal government. In
the Department’s own words, this is a ‘sea
change’ in the Department’s affirmative action
regulations.”
In ABC’s NEWSLINE e-newsletter on February
28, 2012, National ABC said that “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
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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.”
Is this requirement of 7% realistic? The HR
Policy Association wrote on its website www.
hrpolicy.org: “The 2010 Annual Report on the
Federal Work Force, Part II, shows that only 5.9
Mark P. Wylie
percent of federal employees report having a
disability and only 0.9 percent report having
a targeted disability. Yet, the Office of Federal
Contract Compliance Programs has proposed
that federal contractors meet a seven percent
goal in each job category for individuals with
disabilities generally and is considering a two
percent goal for "severe disabilities," which
would be defined almost identically to the
targeted disabilities in the federal goals. This
failure by the federal government to meet its
own goals lends credence to the argument that
such goals would be impossible to implement in
the private sector.” [See graphic]
Burr wrote in his letter to Patricia A. Shiu,
Director Office of Federal
Contract Compliance
Programs, “Reports
from ABC members and
our knowledge of the
construction industry
lead ABC to respectfully
submit that OFCCP has
significantly understated
the costs of compliance
with its proposal. The
time for compliance with
the paperwork burdens
(repeatedly cited by the
Department as taking
anywhere from five minutes
to 30 minutes) has been
understated by several
decimal points.
“In other words, ABC is
reliably informed by its members that the time
spent on training managers; interacting with
applicants about the self-identification process;
analyzing, documenting, and reporting on the
number of disabled individuals recruited, hired
and laid off; and the time spent analyzing,
documenting, and reporting the reasonable
accommodations, undue hardships and
direct threats to safety are more likely to take
hundreds, if not thousands, of hours.
“Most small contractors will be unable to
perform the analysis required at all, and will no
doubt instead be compelled to turn to outside
consultants at significant additional costs
in order to comply. OFCCP’s erroneous cost
estimates must be entirely reconsidered and
the NPRM withdrawn for further study in order
to determine the unique impact it will have on
the construction industry and on small federal
contractors generally,” Burr concluded.
If Obama is able to push this through, it will be
next to impossible for the Congress or future
administrations to role it back.
Like ObamaCare, the last resort for business
will be the U.S. Supreme Court, which Mr.
Obama so belligerently complained as “that
an unelected group of people” which could
“somehow overturn a duly constituted and
passed law”… or unconstitutional regulation.
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