by David Morgan, Amanda Shapiro, and Eric Dunleavy, Ph.D., DCI Consulting Group

The U.S. House of Representatives' Committee on Education and the Workforce held a hearing on April 18, 2012 entitled "Reviewing the Impact of the Office of Federal Contract Compliance Programs' Regulatory and Enforcement Actions". The hearing was organized by the Subcommittee on Health, Employment, Labor, and Pensions, which is chaired by Representative Phil Roe (R-TN). As noted in a previous post, the hearing was scheduled to address the committee's concerns regarding the potential effects of OFCCP's proposed regulatory revisions on the federal contractor community. Congress has not held an oversight hearing regarding OFCCP since 1996. The Committee offered a live webcast of the hearing, in addition to the sixty-seat capacity in the main room. Approximately fifty people attended in-person (including 5 from DCI Consulting Group Inc.). Four witnesses testified at the hearing, including Jeffery Norris from EEAC; Dana Bottenfield from St. Jude Children’s Research Hospital, Fatima Goss Graves from the National Women’s Law Center, and Alissa Horvitz from Littler Mendelson.

Among the issues and concerns raised by the Committee was whether or not the OFCCP’s policies and pending regulations will move the federal contractor community in the right direction. The witnesses were each able to give a five minute testimony, which was then followed by questions from each Subcommittee member.

There were seven Subcommittee members who attended the hearing, including: Rep. David P. Roe (R-TN), Rep. Dennis J. Kucinich (D-OH), Rep. Todd Rokita (R-IN), Rep. Robert C. Scott (D-VA), Rep. John F. Tierney (D-MA), Rep. Rush D. Holt (D-NJ), and Rep. Dale Kildee (D-MI).

In his testimony, Jeffrey Norris provided a brief overview of the major changes coming from OFCCP, as well as issues that may result. Mr. Norris discussed significant changes involving compliance evaluations, regulations for veterans and individuals with disabilities, and compensation. He focused on the significant time and economic burdens that the new regulations would create while at the same not increasing the likelihood of success for the mission of the OFCCP. He noted that this is opposite to the recent call from OMB to harmonize current and proposed rules.

Next, to provide the perspective of a current Federal contractor, Dana Bottenfield from St. Jude’s Hospital in Memphis, TN gave an overview of the time, money, resources, and manpower that goes into developing and implementing an affirmative action plan, which is separate from the time and money that is involved in responding to OFCCP audits. She also emphasized that despite best practices among a number of EEO/AA dimensions, OFCCP seemingly ignores the positive efforts of federal contractors in audits and instead focuses on narrow areas where statistical analyses show some disparity.

Fatima Goss Graves’ testimony focused on the necessity of OFCCP and highlighted the importance of the agency for disadvantaged groups (women in particular) during this tough economic period. She offered recent high profile OFCCP settlements as background and noted that the proposed changes only stand to improve worker protections.

Alissa Horvitz’s testimony focused on the onerous burdens that OFCCP places on federal contractors, from both current and proposed regulations. She suggested that a lack of transparency in the current agency and the negative tenor of recent audits may impede the mission of OFCCP from being achieved.

Members of the Subcommittee were particularly interested in the OFCCP’s role in ensuring equal opportunity for veterans returning to the workforce, as well as individuals with disabilities. In his questioning, Rep. Dennis Kucinich (D-OH) noted that veterans returning home tend to have a high rate of unemployment, and countered panel testimonies that many contractors are concerned with overall burden and record-keeping obligations associated with pending requirements by providing examples of contractors that welcome them. However, Dana Bottenfield provided compelling testimony of examples in which hefty burdens and costs may be incurred—particularly during OFCCP audits.

Rep. Todd Rokita (R-IN) was “amazed” to hear some of the figures that Bottenfield discussed, such as the cost of an 8-month audit including an on-site visit, which ultimately closed with no issues identified. Rep. Rokita questioned the benefit of pouring costs into resources and person hours for paperwork exercises, versus being utilized more effectively elsewhere. He went on to ask the panel whether or not proposed changes to Section 503 self identification requirements would be inconsistent with the Americans with Disabilities Act (ADA), as amended raising the “uncomfortable perspective” of exposing disabilities. Panelist Jeffery Norris replied that the proposed changes would in fact “feature” one’s disability on an annual basis, as opposed to minimizing one’s disability, as the ADA is intended. Rep. Tierney (D-Mass) voiced concern that the hearing was held prematurely, since no new regulations have been finalized. He noted that the proposed regulations are still pending and the contractor community was afforded the opportunity to comment, he suggested that a discussion about proposed regulations was not necessary.

In addition to the proposed changes, the Subcommittee focused on supporting the purpose of OFCCP by citing findings of discrimination that they believe to be occurring in the country. Rep. Rush Holt (D-NJ) noted that enforcement and record-keeping are necessary because relying on the good faith efforts of companies is not enough. Ms. Graves reiterated that enforcement is needed in order to eliminate discrimination and that record-keeping is essential as numbers are not enough to prove discrimination. Mr. Norris echoed that oversight is important; however OFCCP and contractors should be working together and not wasting time on paperwork exercises and outdated methods. Chairman Roe noted that there is a delicate balance between requiring contractors to comply with regulations and stymying business as a result of paperwork exercises. He reiterated that everyone wants to avoid situations where contractors do not do business with the government or are unable to achieve their mission. Chairman Roe concluded the discussion by thanking the witnesses for their time. The session ended without indication of further action by the Subcommittee after the meeting. Stay tuned.

A link to the hearing webcast and submitted testimony can be found at:

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