OFCCP Under Fire in Congressional Oversight Hearing

Employment Law, Inclusion and Diversity

Testimony by HR Policy before a packed House subcommittee oversight hearing this week examining the Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) drew strong support from House Republicans, who demanded answers from OFCCP Director Patricia Shiu about the cost, implementation and even legality of her agency's new affirmative action rules for veterans and persons with disabilities.  Testifying on behalf of HR Policy Association, former Acting Solicitor of Labor, David Fortney said, "employers want to ensure, for both legal and ethical reasons, that it is clear to applicants that they are being considered entirely on the basis of their ability to perform the job, not on whether they have a disability."  He also noted that it is still unclear how contractors can legally be required to ask new hires whether they have a disability when such inquiries are explicitly prohibited under the Americans with Disabilities Act.  Education and the Workforce Committee Chairman, John Kline (R-MN), picking up on that issue, asked Director Shiu if OFCCP would assist in defending employers with amicus briefs should they be sued under the ADA for having to comply with the OFCCP rule.  Shiu declined to answer, saying only that DOL’s Solicitor’s office would have to be consulted.  House Workforce Protections Subcommittee Chairman Walberg said "we should be developing enforcement policies that promote the best interests of workers and the best use of taxpayer dollars. . .  Regrettably, the Obama administration has pursued a different agenda."  Separately, Chairman Walberg (R-MI) introduced a bill (H.R. 3633) that would prevent OFCCP from exerting jurisdiction over health care providers simply because they are providing health care services to individuals under Medicare, Medicaid, TRICARE or other federal health care programs.