Trade Association Sues OFCCP To Challenge New Rehabilitation Act Rule

Associated Builders and Contractors, Inc. (ABC), a construction trade association, has sued the director of the OFCCP and the Secretary of Labor seeking to exclude government contractors in the construction industry from the data collection and utilization review analysis requirements of the OFCCP’s new rule amending the requirements for government contractors under § 503 of the Rehabilitation Act. More after the break.

ABC claims the OFCCP’s new rule “imposes unprecedented, wasteful and burdensome data collection and utilization analysis requirements on government construction contractors, without statutory authority and in an arbitrary and capricious manner,” and that the Rehabilitation Act does not authorize the President or OFCCP to require data collection or analysis with regard to the hiring or employment of disabled individuals.

Further, the suit notes that the Act has been amended numerous times in the past four decades; however, unlike the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), Congress has never amended it to authorize any change in the affirmative action requirements for government contractors. Additionally, the lawsuit notes that in the past, the OFCCP has exempted construction contractors from similar forms of data collection because of the industry’s uniquely fluid and temporary workforce. Requiring contractors to track the application and hiring of individuals with disabilities is even more problematic for the construction because of the nature of construction industry.

The lawsuit argues what the government contracting community has been saying all along — that the new rule imposes burdens on small businesses that frequently do not have the staff to perform data collection and analysis. More to come on this one. The OFCCP has not issued a comment.