Construction association sues to stop OFCCP’s new affirmative action rule

On November 19, 2013, Associated Builders and Contractors (ABC), a national association for the construction industry, filed a request for an injunction in the U.S. District Court for the District of Columbia to stop the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) final rule affecting federal government contractors, including construction contractors. The final rule implementing Section 503 of the Rehabilitation Act dramatically alters federal contractors’ existing affirmative action and nondiscrimination obligations for individuals with disabilities. The rule is schedule to go into effect March 24, 2014.

According to ABC, the association filed the lawsuit because “OFCCP exceeded its statutory authority, altered longstanding precedent, and imposed wasteful and burdensome data collection and reporting requirements on government contractors without any supporting evidence from the agency that contractors weren’t meeting the previous requirements.” ABC claims that the new rule “is especially burdensome for construction contractors that will be required to maintain written documentation and track whether the percentage of protected employees meets affirmative action requirements for federal projects. Such paperwork and reporting provisions are completely new to the construction industry—a fact that was not taken into account in OFCCP cost estimates.”

Instead of promoting the employment of individuals with disabilities, ABC Vice President of Federal Affairs Geoff Burr states 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.”

ABC also pointed out that construction contractors face especially negative impacts under this rule because the industry is heavily comprised of small businesses and has a workforce that OFCCP itself has referred to as “fluid and temporary,” compared to nonconstruction supply and service contractors.

For more information about the new OFCCP rules, check out California Employment Law Letter editor Mark Schickman’s analysis, “A new affirmative action obligation.”