New OFCCP rules amending the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans Readjustment and Assistance Act and Section 503 of the Rehabilitation Act are expected to be effective March 24, 2014. OFCCP has published a set of forms that are to be used in implementing the new rules, which are available in this client alert from Husch Blackwell’s OFCCP compliance team.

As we have discussed in several earlier posts, the new rules represent an aggressive move by OFCCP. They impose significant new recordkeeping obligations on federal contractors and subcontractors. They set high placement goals and hiring benchmarks for veterans and individuals with disabilities. They authorize OFCCP to obtain more contractor information during compliance reviews.

One of the key issues with the new rules is that they require federal contractors and subcontractors to ask job applicants and current employees whether they are individuals with disabilities. Such questioning is normally prohibited by the Americans with Disabilities Act.  Needless to say, there has been a lot of opposition to the new OFCCP rules.

Congressional and industry response

Some of the more interesting responses to the new OFCCP rule have taken place before the House Education and Workforce Committee, chaired by John Kline (R-MN) and Workforce Protection Subcommittee chairman Tim Walberg (R-MI). The December 4, 2013 subcommittee hearing includes an appearance by OFCCP director Patricia Shiu.

What has been particularly vexing for OFCCP is the litigation initiated by the Associated Builders and Contractors. ABC’s complaint [pdf] seeks a declaration that the OFCCP’s new rule is unlawful and an injunction blocking portions of the rule that “impose unauthorized or otherwise unlawful data collection and/or utilization analysis requirements and/or goals on construction contractors.”

The parties have filed cross-motions for summary judgment. We anticipate that the court will rule on these motions in the near future—most likely before the March 2014 effective date. Whatever the District Court’s conclusion, implementation will likely be placed on hold pending appeal to the D.C. Circuit.