In a recent post we noted that the OFCCP issued new regulations that will require contractors to collect data and track hiring efforts related to their hiring of disabled employees. Associated Builders and Contractors (ABC) filed suit last week seeking to stop the implementation of these regulations, not because ABC members disagree with the legitimate affirmative action and nondiscrimination objectives of the Rehabilitation Act, but because the new rules impose unprecedented, wasteful and burdensome data collection and utilization analysis requirements on government construction contractors.
In its recent press release, ABC Vice President of Federal Affairs Geoff Burr noted that the rule will do nothing to increase employment opportunities for individuals with disabilities. Instead, the new burdens it imposes mean many construction contractors are likely to stop pursuing government construction projects—particularly small businesses that currently provide services but lack the resources to meet the rule’s new burdensome requirements.
The ABC lawsuit points out that the new required data collection and analysis is an effort by the OFCCP to force construction contractors to meet a new established 7% workforce utilization goal for individuals with disabilities. But, that goal is not authorized by the Rehabilitation Act, section 503. The lawsuit also points out that the OFFCP is ignoring the very unique aspects of the construction industry in that the work force, as recognized by the OFCCP, is fluid and temporary. Because of these unique characteristics, the OFCCP has previously exempted the construction industry from certain types of utilization analysis and statistical data collection that the new rules are seeking to impose.
ABC will ask the court for a hearing on its injunction and the parties will then have an opportunity to argue their points and submit briefs to the court. The rule is not scheduled to go into effect until March 24, 2014, so the court should have an opportunity to rule before then.