Thomas Perez, nominee for secretary of the U.S. Department of Labor, provided his views in writing to the Senate Committee on Health, Education, Labor and Pensions on several pending DOL proposals, including one for federal contractors to establish hiring goals for individuals with disabilities for every job group. The committee voted May 16, 2013, to send Perez’s nomination to the full Senate for consideration.
“The Office of Federal Contract Compliance Programs (OFCCP) proposal would require federal contractors to ask every applicant for employment to self-identify as an individual with a disability upon application as well as later in the hiring process and require contractors to survey their entire workforce each year to ascertain disability status,” Sen. Lamar Alexander, R-Tenn., noted.
Seemingly exasperated by the proposal, Alexander summarized it as essentially imposing “hiring quotas” on federal contractors in each of their job groups. “Do you believe a blanket quota system is good policy?” he asked.
“Courts have made clear that quotas—requirements that employers hire specified numbers of individuals from particular groups without regard to their qualifications or their availability in the relevant labor pool—are unlawful,” Perez answered. “No laws enforced by the Department of Justice or the Department of Labor require or permit quotas, and I have never hired employees based on quotas.
“Where Department of Labor regulations provide for goals, those goals are tied to the availability of qualified candidates and are intended to be used to evaluate the presence of artificial barriers to the employment of members of a particular group,” he continued. “I share employers’ goals of identifying and hiring highly qualified individuals for every job.”
But Alexander asked the nominee to explain how the proposed rule’s requirement that contractors ask every applicant to self-identify as an individual with a disability is compatible with the Americans with Disabilities Act (ADA).
“The existing rule includes a requirement that covered federal contractors invite self-identification at the post-offer stage of the employment process,” Perez replied.
“Independent economic analysis of the proposed rule shows the costs far exceeding what the Department of Labor proposed,” Alexander observed. “One study found that the proposed rule would cost federal contractors $510 million in the first year and $307 million in subsequent years. The Department of Labor estimated the rule would cost only $74 million in the first year and $49 million in subsequent years.”
‘Right to Know’ Regulation
Alexander also inquired about the status of so-called right-to-know regulations.
Under the right-to-know proposals, employers would have to provide all workers with an individualized written analysis of their employment status and an explanation of how their compensation is calculated. Businesses would have to keep a copy of each analysis for their records; the DOL’s Wage and Hour Division would require any company under investigation to provide these records.
“Do you have any plans to move this proposal back into active rulemaking?” Alexander asked, noting that the right-to-know regulation has been moved to the department’s “long-term-action” agenda.
“If confirmed, I look forward to learning more about this issue,” Perez said. “Should the department determine it will proceed to rulemaking on this issue, I look forward to working with members of this committee and all stakeholders in developing a balanced and comprehensive regulatory proposal, including, as with all regulations, a thorough economic analysis.”
Alexander also was concerned about a DOL requirement that could worsen the doctor shortage in poor areas that have many immigrants who aren’t proficient in English.
“Do you believe it is possible that the requirement that doctors must bear the cost of translation services to serve this population is a deterrent to practicing in medically underserved areas?” Alexander inquired. “Do you agree that a physician who does not speak the local language is better than no doctor at all?”
“Ensuring access to health care in underserved communities is an important societal priority,” Perez responded. “As I mentioned in my opening statement at my confirmation hearing, all of my siblings are doctors.
“Following their graduation they worked for a number of years in physician-shortage areas, and I have learned much from their experience,” he added. “They encountered people with limited English skills in their practice and were able to utilize their bilingual skills to assist many of the patients. Other colleagues were not bilingual, but they recognized the critical importance of being able to effectively communicate with patients. The failure to do so can have life-or-death consequences.
“Many providers make use of telephonic interpretation services, while others partner with organizations to secure qualified paid or volunteer interpreters,” he added.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
Senate Committee Approves Labor Nominee Perez, SHRM Online, May 2013