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EXAMINING RECENT ACTIONS BY THE 

OFFICE OF FEDERAL CONTRACT 

COMPLIANCE PROGRAMS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, DECEMBER 4, 2013 

Serial No. 113–41 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 

CEWDOCROOM with DISTILLER

(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Susan W. Brooks, Indiana 

Richard Hudson, North Carolina 

Luke Messer, Indiana 

George Miller, California, 

Senior Democratic Member 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Juliane Sullivan, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Tom Price, Georgia 

Duncan Hunter, California 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Richard Hudson, North Carolina 

Joe Courtney, Connecticut, 

Ranking Member 

Robert E. Andrews, New Jersey 

Timothy H. Bishop, New York 

Marcia L. Fudge, Ohio 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Mark Pocan, Wisconsin 

CEWDOCROOM with DISTILLER

(III) 

C O N T E N T S 

Page 

Hearing held on December 4, 2013 ........................................................................ 1 

Statement of Members: 

Courtney, Hon. Joe, Ranking member, Subcommittee on Workforce Protections ........................................................................................................... 4 

Prepared statement of ............................................................................... 6 

Walberg, Hon. Tim, Chairman, Subcommittee on Workforce Protections ... 1 

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

Fitzgerald, Brian, Chief Executive Officer Easter Seals Disability Services .................................................................................................................. 59 

Prepared statement of ............................................................................... 61 

Fortney, David, Co-Founder, Fortney & Scott, LLC, H.R. Policy Association ................................................................................................................. 20 

Prepared statement of ............................................................................... 22 

Kirschner, Curt, Partner, Jones Day, The American Hospital Association . 67 

Prepared statement of ............................................................................... 69 

Shanahan, Thomas C., Vice President for Legal Affairs & General Counsel, The University of North Carolina ......................................................... 47 

Prepared statement of ............................................................................... 49 

Shiu, Patricia A., Director, Office of Federal Contract Compliance Programs, Department of Labor ........................................................................ 7 

Prepared Statement of .............................................................................. 10 

Additional Submissions: 

Mr. Courtney: 

The Women’s Legal Defense and Education Fund, letter dated Dec. 

3, 2013 .................................................................................................... 143 

Graves, Fatima G., Vice President, Education and Employment, National Women’s Law Center, prepared statement of .......................... 145 

Henderson, Wade, President and CEO, The Leadership Conference 

on Civil and Human Rights, prepared statement of ........................... 150 

Consortium for Citizens with Disabilities, letter dated Dec. 3, 2013 ... 153 

Fudge, Hon. Marcia L., a Representative in Congress from the State 

of Ohio: 

Question submitted for the record ........................................................... 185 

Kline, Hon. John, Chairman, Committee on Education and the Workforce: 

Question submitted for the record ........................................................... 180 

Miller, Hon. George, Senior Democratic Member, Committee on Education and the Workforce: 

Chambers, Gregory T., President, The American Association for Affirmative Action, prepared statement of .............................................. 161 

Kirlin, Eileen, International Executive Vice President, prepared 

statement of ........................................................................................... 164 

Maatz, Lisa, Vice President of Government Relations, American Association of University Women, prepared statement of ...................... 167 

McMahon, Shawn, Acting President/CEO, Wider Opportunities for 

Women, prepared statement of ............................................................. 170 

Wojahn, Patrick, National Disability Rights Network, prepared statement of .................................................................................................... 173 

Ms. Shiu: 

Response to questions submitted for the record ..................................... 186 

Chairman Walberg: 

Associated General Contractors of America, letter dated Dec. 4, 2013 88 

American Hospital Association, letter dated Dec. 6, 2013 ..................... 177 

CEWDOCROOM with DISTILLER

Page

IV 

Additional Submissions—Continued 

Chairman Walberg—Continued 

Questions submitted for the record ......................................................... 180 

CEWDOCROOM with DISTILLER

(1) 

HEARING ON RECENT ACTIONS BY THE 

OFFICE OF FEDERAL CONTRACT 

COMPLIANCE PROGRAMS 

Wednesday, December 4, 2013 

House of Representatives, 

Subcommittee on Workforce Protections, 

Committee on Education and the Workforce, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:00 a.m., in Room 

2175, Rayburn House Office Building, Hon. Tim Walberg [chairman of the subcommittee] presiding. 

Present: Representatives Walberg, Kline, Hunter, Rokita, 

Bucshon, Hudson, Courtney, Fudge, and Pocan. 

Staff present: Molly Conway, Professional Staff Member; Ed 

Gilroy, Director of Workforce Policy; Benjamin Hoog, Senior Legislative Assistant; Marvin Kaplan, Workforce Policy Counsel; Nancy 

Locke, Chief Clerk; Daniel Murner, Press Assistant; Brian Newell, 

Deputy Communications Director; Krisann Pearce, General Counsel; Alissa Strawcutter, Deputy Clerk; Juliane Sullivan, Staff Director; Alexa Turner, Legislative Assistant; Joseph Wheeler, Professional Staff Member; Tylease Alli, Minority Clerk/Intern and 

Fellow Coordinator; Jody Calemine, Minority Staff Director; Melissa Greenberg, Minority Staff Assistant; Julia Krahe, Minority 

Communications Director; Richard Miller, Minority Senior Labor 

Policy Advisor; Megan O‘Reilly, Minority General Counsel; Michael 

Zola, Minority Deputy Staff Director; and Mark Zuckerman, Minority Senior Economic Advisor. 

Chairman WALBERG. A quorum being present, the committee will 

come to order. 

Good morning. I would like to thank our witnesses for joining us. 

I would also like to extend a special welcome to Director Shiu. 

This is our first opportunity to hear from you, and I appreciate 

your willingness to sit down further, beyond this. That is always 

helpful. Thank you for taking the time to be with us today as we 

examine your agency’s regulatory actions. 

The Office of Federal Contract Compliance Programs is charged 

with enforcing the affirmative action and nondiscrimination employment requirements governing federal contractors. It is a tremendous responsibility that affects more than 20,000 businesses 

and roughly one out of every five American workers. Any government agency with this much influence should exercise its authority 

judiciously, especially at a time when so many cannot find full-time 

employment. 

CEWDOCROOM with DISTILLER

2 

I hope my colleagues will keep this in mind as we examine two 

regulations adopted by OFCCP in September. 

Last year a number of witnesses shared their concerns about the 

proposed regulations with the committee. They described how the 

rules would add an unprecedented amount of new paperwork on 

top of existing reams of reporting requirements. 

Regulations would also set arbitrary hiring goals for certain 

classes of workers, but the agency has the power to revoke a contract if employers fail to meet those so-called goals. In addition, 

witnesses discussed the fact that the agency is essentially requiring 

workers to disclose a disability before they have been offered employment, even though the Americans with Disability Act clearly 

prohibits this type of invasive inquiry. 

Unfortunately, OFCCP failed to address these and other concerns 

in the final regulations. Today’s witnesses will discuss in greater 

detail why the regulations remain problematic and how they will 

impact the nation’s workplaces. 

I also hope to discuss why workers and job creators deserve a 

completely new regulatory approach. Dana Bottenfield, a witness 

at a previous hearing, accurately described the problems that exist 

in the current process. As a human resources professional for St. 

Jude Children’s Research Hospital, Dana characterized the current 

structure as, and I quote—‘‘all stick and no carrot.’’ 

Dana explained existing rules, and I quote again—‘‘impose a 

level of expense of time and money that is far in excess of what 

is necessary to accomplish effective affirmative action.’’ She concluded her statement by saying, quote—‘‘Our team is not focused 

on providing a fair and diverse workplace, but instead, surviving 

our next audit.’’ 

No doubt the experience of St. Jude is similar to the vast majority of federal contractors: They want to follow the rules and do the 

right thing, but too often they are tied up in unnecessary investigations or tripped up by excessive red tape. 

Director Shiu, we should be working together to find ways to 

streamline this regulatory mess. We should be discussing solutions 

that would make it easier for employers to follow the law and easier to identify those who don’t. We should be developing enforcement policies that promote the best interests of workers and the 

best use of taxpayer dollars. 

Regrettably, the Obama administration has pursued a different 

agenda. Instead of simplifying the process, the administration creates more confusion and uncertainty. Instead of working together, 

the department refuses to provide adequate responses to our most 

basic oversight questions. Delivering documents weeks late on the 

eve of a national holiday and days before an oversight hearing that 

are ultimately nonresponsive is an insult to this committee and its 

oversight responsibilities. 

Finally, instead of smart enforcement practices, the administration is doing less with more. Since 2009 OFCCP has received a 30 

percent funding increase and hired roughly 29 percent more staff. 

Yet compared to the prior administration, OFCCP is conducting 

fewer compliance evaluations and fewer audits. 

Even more striking are the outcomes. Between 2004 and 2008 

the Bush administration recovered more than $250 million in fiCEWDOCROOM with DISTILLER

3 

nancial remedies. However, the Obama administration has collected a total of just $57 million. 

In the face of all these challenges, OFCCP wants to expand its 

reach through regulatory fiat. Health care providers now fear they 

will be forced to inherit OFCCP’s regulatory burden because they 

serve some of our nation’s most vulnerable citizens. 

I have introduced legislation, H.R. 3633, that will ensure hospitals and doctors reimbursed through federal health care programs are not unilaterally designated contractors and subject to 

OFCCP’s dictates. I hope my colleagues will oppose this bureaucratic overreach by supporting the Protecting Health Care Providers from Increased and Administrative Burdens Act. 

Federal contractors have a moral and legal obligation to ensure 

employment discrimination is not tolerated in their workplaces. 

OFCCP has an obligation as well, to enforce the law fairly and effectively. Unfortunately, more regulations, more spending, more 

staff, and fewer results have become the agency’s track record. The 

men and women who rely on OFCCP to enforce these critical policies deserve better. For their sake, I strongly urge the administration to change its course. 

With that, I will now recognize the senior Democratic member of 

the subcommittee, my friend Representative Joe Courtney, for his 

opening remarks. 

[The statement of Chairman Walberg follows:] 

Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on 

Workforce Protections 

Good morning. I’d like to thank our witnesses for joining us. I would also like to 

extend a special welcome to Director Shiu. This is our first opportunity to hear from 

you. Thank you for taking the time to be with us today as we examine your agency’s 

regulatory actions. 

The Office of Federal Contract Compliance Programs is charged with enforcing 

the affirmative action and nondiscrimination employment requirements governing 

federal contractors. It is a tremendous responsibility that affects more than 20,000 

businesses and roughly one out of every five American workers. Any government 

agency with this much influence should exercise its authority judiciously, especially 

at a time when so many cannot find work. I hope my colleagues will keep this in 

mind as we examine two regulations adopted by OFCCP in September. 

Last year a number of witnesses shared their concerns about the proposed regulations with the committee. They described how the rules would add an unprecedented amount of new paperwork on top of existing reams of reporting requirements. The regulations would also set arbitrary hiring ‘‘goals’’ for certain classes of 

workers, but the agency has the power to revoke a contract if employers fail to meet 

these so-called goals. In addition, witnesses discussed the fact that the agency is essentially requiring workers to disclose a disability before they’ve been offered employment, even though the Americans with Disabilities Act clearly prohibits this 

type of invasive inquiry. 

Unfortunately, OFCCP failed to address these and other concerns in the final regulations. Today’s witnesses will discuss in greater detail why the regulations remain 

problematic and how they will impact the nation’s workplaces. I also hope to discuss 

why workers and job creators deserve a completely new regulatory approach. 

Dana Bottenfield, a witness at a previous hearing, accurately described the problems that exist in the current process. As a human resources professional for St. 

Jude Children’s Research Hospital, Dana characterized the current structure as ‘‘all 

stick and no carrot.’’ Dana explained existing rules ‘‘impose a level of expense of 

time and money that is far in excess of what is necessary to accomplish effective 

affirmative action.’’ She concluded her testimony by saying, ‘‘Our team is not focused 

on providing a fair and diverse workplace, but instead surviving our next audit.’’ 

No doubt the experience of St. Jude is similar to the vast majority of federal contractors: They want to follow the rules and do the right thing, but too often they 

are tied up in unnecessary investigations or tripped up by excessive red tape. 

CEWDOCROOM with DISTILLER

4 

Director Shiu, we should be working together to find ways to streamline this regulatory mess; we should be discussing solutions that would make it easier for employers to follow the law and easier to identify those who don’t; we should be developing 

enforcement policies that promote the best interests of workers and the best use of 

taxpayer dollars. 

Regretably, the Obama administration has pursued a different agenda. Instead of 

simplifying the process, the administration creates more confusion and uncertainty. 

Instead of working together, the department refuses to provide adequate responses 

to our most basic oversight requests. Delivering documents weeks late, on the eve 

of a national holiday, and days before an oversight hearing that are ultimately nonresponsive is an insult to this committee and its oversight responsibilities. 

Finally, instead of smart enforcement practices, the administration is doing less 

with more. Since 2009 OFCCP has received a 30 percent funding increase and hired 

roughly 29 percent more staff. Yet compared to the prior administration, OFCCP is 

conducting fewer compliance evaluations and fewer audits. Even more striking are 

the outcomes. Between 2004 and 2008, the Bush administration recovered more 

than $250 million in financial remedies. However, the Obama administration has 

collected a total of just $57 million. 

In the face of all these challenges, OFCCP wants to expand its reach through regulatory fiat. Health care providers now fear they will be forced to inherit OFCCP’s 

regulatory burden because they serve some of our nation’s most vulnerable citizens. 

I have introduced legislation, H.R 3633, that will ensure hospitals and doctors reimbursed through federal health care programs are not unilaterally designated contractors and subject to OFCCP’s dictates. I hope my colleagues will oppose this bureaucratic overreach by supporting the Protecting Health Care Providers from Increased Administrative Burdens Act. 

Federal contractors have a moral and legal obligation to ensure employment discrimination is not tolerated in their workplaces. OFCCP has an obligation as well, 

to enforce the law fairly and effectively. Unfortunately, more regulations, more 

spending, more staff, and fewer results have become the agency’s track record. The 

men and women who rely on OFCCP to enforce these critical policies deserve better. 

For their sake, I strongly urge the administration to change course. 

I will now recognize the senior Democratic member of the subcommittee, Representative Joe Courtney, for his opening remarks. 

Mr. COURTNEY. Thank you, Mr. Chairman, and thank you for 

holding this hearing today and for the witnesses for all joining us 

this morning and to talk about what I think is the primary focus, 

which are two new regulations which have been issued by the Department of Labor after a protracted process, which again got, actually, pretty high marks from groups and individuals as diverse 

as former Governor Tom Ridge, who complimented the department 

for listening to some of the input, which again, was recounted here 

by the chairman at prior hearings and came out with an outcome 

today that basically strengthen job discrimination protections for 

individuals with disabilities and men and women who have served 

this country in the armed forces. 

These rules, which are primarily nonpunitive and aspirational 

goals to help federal contractors monitor and evaluate their 

progress to ensure that they are abiding by civil rights laws. Taken 

together, these rules have a very simple message: If you are a veteran who served our country as a volunteer, even if you suffered 

a disabling injury, we have your back. 

These rules say that you deserve a fair shot to compete for a private sector job free of discrimination or bias based on your veteran 

status or disability. And these rules also say that if you are one of 

more than 50 million disabled Americans you, too, should deserve 

a fair shot at a job with a federal contractor, free of discrimination 

against you because of a disability. 

With the cooperation of federal contractors, the Department of 

Labor’s rules are a game-changer for veterans and disabled individCEWDOCROOM with DISTILLER

5 

uals, providing them with 715,000 additional private sector job opportunities. And as you can see from the chart across the room, 

based on extensive analysis, the Department of Labor estimates 

that there will be over 200,000 job opportunities for veterans, particularly those from Iraq and Afghanistan, and over 500,000 for individuals with disabilities because of this rule. 

Mr. Chairman, the many challenges veterans and individuals 

with disabilities face in the job market are well-documented. The 

household wages of those with disabilities is less than half of those 

of households without a disability, and almost a third of those individuals have incomes below the poverty level, compared to 12.5 

percent of those who do not. 

As we will hear today, recent veterans face significantly higher 

unemployment rates than nonveterans, despite the fact that Congress has passed the Hiring Our Heroes Act and the Veterans Hiring Tax Credits. I see those initiatives, which, again, give incentives to employers to hire veterans, as dovetailing perfectly with, 

again, these nonpunitive aspirational goals which the department 

has put forth. 

For male Gulf War-Era II veterans 18 to 24 the unemployment 

rate today is 20 percent, four points higher than nonveterans in 

that age group. For all Gulf War-Era II veterans the unemployment rate is almost 10 percent. 

This is simply unacceptable for the brave men and women who 

served our country and we need to do much more. 

As many of you heard me at a number of other hearings, I am 

lucky enough to represent a district with a shipyard—an electric 

boat shipyard, which, in my opinion, builds the most complex vessels in the world that sustains human life in an environment that 

does not sustain human life, and does it with a nuclear powered 

system. Almost 20 percent of that workforce are veterans. 

Again, they didn’t just seek to achieve the aspirational goals that 

we are discussing here today; they doubled it. And frankly, if they 

had the opportunity to hire more veterans, even those who carry 

combat-related disabilities, they would do it in a heartbeat because 

the fact of the matter is that the skills of teamwork, discipline, specialized skills that are imparted in the military, are something that 

America’s workforce should not view as a burden or employers as 

a burden, but frankly, as an opportunity of growth and fulfilling, 

again, some of the workforce challenges that our nation faces. 

And again, these rules, which again, I want to emphasize, are 

nonpunitive and aspirational, are a good start to achieve that goal. 

I commend all the advocates in the disability community and veterans community that have helped support the issuance of these 

final rules. 

Now again, the chairman has raised some issues that maybe are 

not directly related to these particular regulations which were 

issued, and again, I think they deserve a very thorough vetting 

here today and look forward to working with you in terms of addressing some of those issues. 

But again, this morning there was a shipbuilding caucus, which 

is a bipartisan group of members that General James Amos, who 

is the commandant of the Marine Corps, spoke for an hour, and I 

was telling him about a disabled veteran in my district who lives 

CEWDOCROOM with DISTILLER

6 

in the next town over who is a double amputee, stepped on a landmine in Afghanistan—very difficult, challenging recovery. Again, 

the general visited him on numerous occasions at Walter Reed, 

which was unbelievably appreciated by his family. 

But I was telling him that he and I played golf the other day— 

Corporal Cairn, double amputee. He was hitting the ball 250 yards 

off the tee straight down the middle, much to my dismay, because 

I was in his foursome. 

But, you know, to me, again, it just demonstrated that, you 

know, you give people the opportunity and again, with some of the 

unbelievable advances in medicine that have taken place right 

now, these are folks that have a lot more to give, not only to themselves and their families but also to our country. And that really 

should be the focus of today’s hearing is to try and work with these 

rules to take advantage of just great Americans who can do a lot 

for our country. 

And with that I yield back. 

[The statement of Mr. Courtney follows:] 

Prepared Statement of Hon. Joe Courtney, Senior Democratic Member, 

Subcommittee on Workforce Protections 

Mr. Chairman: 

I want to thank the witnesses for their participation and testimony today regarding civil rights and federal contracting. 

The main topics of discussion today are two rules recently finalized by the Department of Labor to strengthen job discrimination protections for individuals with disabilities and the men and women who serve their country in the armed forces. 

Specifically, the rules set forth non-punitive, aspirational goals to help federal 

contractors monitor and evaluate their progress to ensure that they are abiding by 

civil rights laws. 

Taken together, these rules have a very simple message. If you are a veteran who 

served our nation for love of country, even if you suffered a disabling injury, we 

have your back. 

These rules say you deserve a fair shot to compete for a private sector job, free 

of discrimination or bias based on your veteran status or disability. 

And these rules also say, if you are one of the more than 50 million disabled 

Americans, you too should deserve a fair shot at a job with a federal contractor, free 

of discrimination against you because of your disability. 

With the cooperation of federal contractors, the Department of Labor’s rules are 

a game changer for veterans and disabled individuals, providing them 715,000 additional private sector job opportunities. 

As you can see from the chart across the room, based on extensive analysis, the 

Department of Labor estimates there will be over 200,000 job opportunities for veterans, and over 500,000 for individuals with disabilities because of this rule. 

Mr. Chairman, the many challenges veterans and individuals with disabilities 

face in the job market are well documented. 

The household wages of those with disabilities is less than half of those households without a disability. Almost a third of individuals have incomes below the poverty level, compared to 12.5 percent of those who do not. 

As we will hear today, recent veterans face significantly higher unemployment 

than non-veterans. 

For male Gulf War-era II veterans, 18 to 24, the unemployment rate is now 20 

percent, 4 points higher than non-veterans in that age group. For all Gulf War-era 

II vets, the unemployment rates is almost 10 percent. 

This is simply unacceptable for the brave men and women who served our country, and we need to do much more. 

These rules are good start. And I commend all the advocates in the disability community and veteran community that helped support the issuance of these final 

rules. 

I look forward to hearing the testimony today. 

CEWDOCROOM with DISTILLER

7 

Chairman WALBERG. I thank the gentleman. I thank you for 

bringing an important face to this hearing, as well—and not the 

face of necessarily—how in the world did you golf in that cold state 

at this time of year anyway? Michigan we couldn’t do that, but no, 

seriously, to bring a face to what we are trying to deal with in the 

most appropriate way is a great thing. Thank you. 

Pursuant to rule 7(c), all members will be permitted to submit 

written statements to be included in the permanent hearing record. 

And without objection, the hearing record will remain open for 14 

days to allow statements, questions for the record, and other extraneous material referenced during the hearing to be submitted into 

the official hearing record. 

It is now my pleasure to introduce our distinguished witnesses. 

First and foremost, Ms. Patricia Shiu is Director of the Office of 

Federal Contract Compliance Programs at the Department of 

Labor. 

Thank you for being with us today. 

Mr. David Fortney is cofounder of the law firm Fortney & Scott 

in Washington, D.C., and is testifying on behalf of the H.R. Policy 

Association. 

Welcome. 

Mr. Thomas Shanahan is vice president and general counsel of 

the University of North Carolina in Chapel Hill, North Carolina. 

Mr. Brian Fitzgerald is president and chief executive officer of 

Easter Seals New Jersey in East Brunswick, New Jersey. 

Welcome. 

Mr. Curt Kirschner is a partner at Jones Day in San Francisco, 

California and is testifying on behalf of the American Hospital Association. 

Welcome. 

Before I recognize each of you to provide your testimony let me 

briefly explain our lighting system. You will have 5 minutes to 

present your testimony. The lights are according, starting out with 

green; yellow being 1 minute remaining; red, we hope you have 

wrapped up by then. If not, please do it as quickly as possible. 

The same will be true for the questioning of my colleagues and 

myself to keep it to the 5-minute, especially when we have a full 

panel like this and a topic of great concern and interest to discuss. 

At this point I recognize Director Shiu for her testimony. Thank 

you. 

Microphone, please. Hit the microphone. 

STATEMENT OF MS. PATRICIA A. SHIU, DIRECTOR, OFFICE OF 

FEDERAL CONTRACT COMPLIANCE PROGRAMS, DEPARTMENT OF LABOR, WASHINGTON, D.C. 

Ms. SHIU. There we go. 

Chairman WALBERG. Great. 

Ms. SHIU. Okay. Good morning, Chairman Walberg, Ranking 

Member Courtney, and distinguished members of the subcommittee. Thank you for inviting me to discuss the critical work 

of the Office of Federal Contract Compliance Programs, which I 

have been privileged to lead since 2009. 

It is an honor to testify before the elected representatives of the 

American people we both serve—with Mr. Fitzgerald, a veteran 

CEWDOCROOM with DISTILLER

8 

who now serves people with disabilities in New Jersey and with my 

other colleagues on this panel. 

OFCCP enforces the civil rights of the nearly one-quarter of 

American workers who work for federal contractors and subcontractors. We enforce three longstanding laws that prohibit employment discrimination by contractors and require them to take 

affirmative action to advance employment opportunities for qualified women, minorities, veterans, and people with disabilities. Our 

jurisdiction covers almost 200,000 business establishments which 

receive $500 billion in federal contracts. 

When we find discrimination we take action to correct it and provide relief to the affected workers. Over the past 5 years we negotiated $57 million in back wages and interest and nearly 10,000 job 

offers on behalf of 90,000 workers affected by discrimination. 

Today I would like to focus on two of the laws we enforce, known 

as VEVRAA and Section 503. These laws require equal employment opportunity and affirmative action for protected veterans and 

people with disabilities. 

The regulations under these two laws have not always worked to 

improve employment opportunity as Congress had intended. We 

are far from fulfilling what Vice President Biden called our sacred 

obligation to our returning veterans who have sacrificed so much 

and who deserve good jobs when they return home. Yet post-9/11 

veterans are still more likely to be unemployed than nonveterans 

and people with disabilities are still disproportionately found 

among the unemployed and those too discouraged to look for work. 

In September, OFCCP updated these rules to increase dramatically their effectiveness by clarifying expectations and facilitating 

compliance with the law. These rules provide, for the very first 

time ever, specific aspirational metrics for hiring qualified veterans 

and people with disabilities—metrics that are similar to those that 

have long been used to promote equal opportunities for women and 

minorities. 

I believe that what gets measured gets done, and metrics are essentially management tools that measure progress and inform decision-making. 

These new rules are a win-win. If contractors achieve the 

metrics, more than 200,000 veterans and almost 600,000 workers 

with disabilities could have new job opportunities in the first year 

alone. 

According to the Department of Defense, more than 1 million 

members of the armed services will be transitioning to civilian jobs 

over the next 5 years—roughly 200,000 per year. Our new rule 

could dramatically improve the employment prospects of many of 

those returning veterans each year. 

In addition, the new rules will benefit contractors by helping 

them successfully identify, hire, and retain well-qualified workers, 

as well as increasing their access to new markets. 

These outcomes benefit not only our workers and workplaces, but 

ultimately, our communities and the national economy, as well. 

The VEVRAA rule requires contractors to use either a national 

hiring benchmark of 8 percent or an alternative benchmark that 

they select based on various factors. The Section 503 rule sets a naCEWDOCROOM with DISTILLER

9 

tional 7 percent goal for individuals with disabilities in every job 

category. 

Neither the benchmark nor the goal is a rigid or inflexible quota. 

Quotas are expressly forbidden. 

Instead, the metrics are used to measure the effectiveness of contractors’ outreach and recruitment efforts. When we find companies 

that have not achieved these metrics we work with them to review 

the critical steps that lead to the successful identification, hiring, 

and retention of qualified vets and people with disabilities. 

And I am particularly proud of our rule-making process. We conducted a 4-year-long open and transparent process that included 

town halls and advanced notice of proposed rule-making, two 

NPRMs, hundreds of comments, countless meetings, and we engaged the full panoply of OFCCP stakeholders. And we listened, as 

evidenced by the many changes we made to the proposed rules in 

response to our stakeholders’ concerns. 

I was pleased to see those efforts recognized by former Secretary 

of Homeland Security Tom Ridge in an op-ed that appeared in the 

Wall Street Journal 1 week after the rules were published. He commended OFCCP for following a model process to create a rule that 

has a real impact on improving employment while at the same time 

providing flexibility to companies in how best to achieve the new 

hiring standards. 

We know that workers are our nation’s greatest resource and the 

United States has among the most talented, innovative, and hardworking people in the world, and they are the engine of our economic recovery. That is why the Department of Labor and OFCCP 

are so fully committed to ensuring that American workers have the 

opportunities that would allow them and their employers to flourish. 

Mr. Chairman, that concludes my statement. Thank you very 

much, again, for the opportunity to testify. I am happy to answer 

any questions you may have. 

[The statement of Ms. Shiu follows:] 

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Chairman WALBERG. Thank you. 

We recognize Mr. Fortney now for your 5 minutes of testimony. 

STATEMENT OF MR. DAVID FORTNEY, CO–FOUNDER, FORTNEY 

& SCOTT, LLC, WASHINGTON, D.C., TESTIFYING ON BEHALF 

OF H.R. POLICY ASSOCIATION 

Mr. FORTNEY. Thank you, and good morning. Chairman Walberg 

and Ranking— 

Chairman WALBERG. Microphone on? Thank you. 

Mr. FORTNEY. And good morning again, Chairman Walberg, 

Ranking Member Courtney, and honorable members of the Subcommittee on Workforce Protections. Thank you again for your interest in these very important developments. 

And I am appearing today on behalf of the H.R. Policy Association to discuss specifically the 503 regulations addressing individuals with disabilities. Let me briefly take a moment to introduce 

the H.R. Policy Association, which has a longstanding and very 

proud history of being supportive and involved in assisting individuals with disabilities to find meaningful employment. 

The association is comprised of 350 of the largest corporations in 

the United States. These companies employ more than 10 million 

employees in the U.S. and nearly 9 percent of the private workforce, and indeed, offer employment to 20 million employees worldwide. 

The H.R. Policy members have a strong history of supporting affirmative action and have been intimately involved in the development of effective programs to deal with individuals with disabilities, including the recent amendments to the Americans with Disabilities Act that have been widely accepted. In the initial statement, in the limited time I have, I would like to focus on several 

areas of concern, though, that we do have with respect to the 503 

regulations. 

First, let me note that the regulations are an improvement from 

what had been proposed in some of the initial concerns. With that 

being said, though, there still are remaining concerns. 

With respect to the goal, and with all due respect to Director 

Shiu, our concern remains that the goal, as it is administered, may, 

in fact, become a quota. And let me tell you why we have the concern. Because the language, although it states that it will be a goal, 

look beyond and, in fact, how the goals historically have been administered. Because as Director Shiu has explained, and certainly 

the OFCCP carries out in the field, what gets measured is what 

gets done. 

We know in the field and in practice that if you fall short of that 

7 percent, what is going to happen? The agency is going to impose 

what is called a conciliation agreement and require that a numerical goal be achieved. That effectively operates as a quota. 

Now, that is not just supposition on our part. We have an example under the law today involving a contractor, G–A Masonry, involving veterans. 

The department determined that their outreach efforts were insufficient. The answer was, ‘‘Here is a numerical target. You must 

hire the following number of veterans in order to demonstrate you 

are making sufficient outreach efforts.’’ 

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That, we submit, is how a goal becomes a quota. That should not 

be allowed to proceed and we are concerned. 

Second, under these new rules contractors will be required to ask 

every applicant whether he or she has a disability, and this is before they are offered a job. Now, that has not been the requirement 

of this land for over 30 years. The Americans with Disabilities Act 

specifically prohibits that type of inquiry and we have a longstanding, proud culture where we have focused on individuals’ 

abilities, not their disabilities, in assessing whether they meet the 

basic qualifications of the job. 

These are concerns that we have expressed repeatedly. We have 

asked for a safe harbor to be made. If this is going to be required, 

at least amend the ADA. Do something to make clear that we won’t 

as a result of complying with the regulation, now face litigation as 

a result. 

What we have received so far is a letter from staff counsel at the 

EEOC saying, ‘‘I think this will not violate the ADA.’’ I might add, 

her letter failed to note that the same counsel in 1996 wrote a letter stating it would violate the ADA to make such inquiries. 

And unfortunately, when we have asked the Department of 

Labor whether in the event that our member companies comply 

with this new regulation and face litigation, will the department 

have our back, will they come and file an amicus brief to support 

us in court, we have been told no, the department can’t make that 

commitment either. 

So we are concerned. This is an issue that could easily and 

should have been addressed; it would have avoided these concerns. 

I think that one of the aspects that would assist so that these 

issues don’t pile up and get sorted out through prolonged litigation 

that costs members needless resources would be if there could be 

periodic reporting to this committee by this agency. That way, we 

could know in real time, perhaps every 6 months, what the agency 

is doing and how they are implementing these rules. 

So with that, I thank you and be happy to answer any questions 

you may have. 

[The statement of Mr. Fortney follows:] 

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Chairman WALBERG. Thank you. 

Mr. Shanahan, welcome and recognize you for 5 minutes of testimony. 

STATEMENT OF MR. THOMAS C. SHANAHAN, VICE PRESIDENT 

AND GENERAL COUNSEL, THE UNIVERSITY OF NORTH 

CAROLINA, CHAPEL HILL, NORTH CAROLINA 

Mr. SHANAHAN. Thank you, Mr. Chairman and members of the 

subcommittee. I appreciate the opportunity to testify today regarding the impact of OFCCP compliance on the mission and operations 

of the 17-campus University of North Carolina system. 

The university is strongly committed to equal opportunity in employment. We enroll more than 220,000 students across our 17 

campuses and we employ 55,000 people in hundreds of different job 

classifications. 

We share the goals that underlie OFCCP’s regulatory activities 

and the university’s policies and employment practices reflect our 

commitment. But as part of the higher education sector, UNC institutions are also part of one of the most highly regulated industries 

in the United States and we face increasing regulations with significant compliance costs. The laws and regulations within 

OFCCP’s enforcement authority are just a few among hundreds of 

regulations and other requirements at the federal level alone that 

apply to the university system. 

What this means is that our campuses have to allocate limited 

resources to employ compliance specialists and other professionals 

in order to understand and meet regulatory requirements imposed 

across numerous areas. And we have to do this while addressing 

serious budget challenges. 

The university receives much of its financial support from the 

state of North Carolina, and by necessity the budgets adopted by 

North Carolina’s General Assembly over the last 5 years have contained significant reductions in appropriations per student. We 

have responded to these challenges by prioritizing core academic 

and teaching programs and allocating cuts primarily to operational 

areas, but when it does become essential to fill compliance-related 

positions, our campuses face the difficult choice of allocating scarce 

resources to compliance rather than to teaching, research, or service—part of our mission. 

UNC institutions devote significant resources to OFCCP compliance now. We estimate we employ at least 30 individuals whose 

primary duties involve OFCCP-related compliance across our campuses. 

This estimate doesn’t include efforts of academic administrators 

and other staff whose work includes tasks that are tied to the requirements found in Executive Order 11246 and the statutes enforced by OFCCP. It also doesn’t account for the I.T. systems and 

business processes that have been purchased, modified, and improved over time in order to perform these compliance functions in 

an efficient manner. 

In recent years a small number of UNC campuses have undergone compliance evaluations by OFCCP and we have responded to 

the agency in a prompt and comprehensive manner and have found 

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OFCCP investigators to be knowledgeable and professional in their 

conduct. 

We also find that the process of preparing for and responding to 

compliance evaluations is lengthy, time-consuming, and resourceintensive. The time from the beginning of a review until its conclusion can extend for 2 years or more, and during that time thousands of hours of UNC staff time can be consumed in responding 

to requests for information and documents from OFCCP. At some 

campuses these compliance evaluations have consumed one or more 

full-time employees for extended periods of time. 

Based on input from our campuses, the multiple new and enhanced record keeping, data collection, and compliance requirements contained in the Section 503 and VEVRAA final rules will 

further increase our compliance costs. And our campuses believe 

that these costs will include hundreds of hours of staff time ranging from 100 or more hours at our smallest units to several hundred hours at our larger research institutions. 

We appreciate that OFCCP adjusted its annual compliance cost 

and effort estimates based on comments received during the rulemaking process, but we still project the need to devote the equivalent of an estimated 20 additional full-time personnel to revising 

systems to comply with the new regulations and to complying with 

the requirements once those new systems are established. 

In addition, we expect that the new requirements will require the 

expenditure of yet more funds to reprogram, purchase, or upgrade 

existing management systems, alter record-keeping practices, and 

to revise current operational procedures, resulting in several thousand dollars in additional costs. 

Once again, we support the efforts to increase employment opportunities for individuals with disabilities and protected veterans. 

Moreover, in keeping with its mission for and on behalf of the people of the state of North Carolina, the university is committed to 

ensuring that employment opportunities are extended to individuals without regard to race, gender, disability, or protected veteran 

status. 

It is far from clear, however, that the substantial data collection, 

record keeping, and other process requirements prescribed by 

OFCCP in the final rules will achieve these desired outcomes without substantial cost burdens to the university. 

Thank you. 

[The statement of Mr. Shanahan follows:] 

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Chairman WALBERG. Thank you. 

Mr. Fitzgerald, welcome, and you are recognized for your 5 minutes. 

STATEMENT OF MR. BRIAN FITZGERALD, CHIEF EXECUTIVE 

OFFICER, EASTER SEALS NEW JERSEY, EAST BRUNSWICK, 

NEW JERSEY 

Mr. FITZGERALD. Mr. Chairman and members of the subcommittee, my name is Brian Fitzgerald. I am the president and 

CEO of Easter Seals New Jersey, a nonprofit that helps individuals 

with disabilities, veterans, and other New Jersey residents achieve 

their potential, including helping them find employment. Thank 

you for inviting me to testify how final rules announced by the Department of Labor will help veterans and people with disabilities 

have meaningful opportunities to compete for jobs with federal contractors. 

My entire professional career has focused on the employment for 

people with disabilities and veterans. I joined Easter Seals in 1975 

as a vocational counselor, where I helped people with disabilities 

develop skills to find and maintain jobs. In 1989 I became CEO of 

Easter Seals New Jersey. 

Over these nearly 40 years I have relied on the training, decision-making, and responsibilities I learned in the military. In 1967 

I joined the United States Army and served as an infantry officer 

until 1972. 

When I left I struggled to translate my military skills to the civilian workforce. I spent several months job hunting but I failed to 

get noticed to prove I was qualified. 

I ran into the barriers veterans face today when their only previous work experience is the military. I had leadership; I had skills; 

I had discipline. But I couldn’t turn that experience into a job. 

My first break came thanks to a college buddy. His company had 

an open position and he asked me to apply. My friend went to bat 

for me. I got a call for an interview and later a job offer. 

My buddy’s intervention didn’t guarantee me a job or even an 

interview, but that warm handoff to a willing recipient ensured my 

resume got noticed and was fairly considered. 

The Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act help ensure job applicants with disabilities 

and who are veterans have a fair shot at employment. These laws 

prohibit employment discrimination and require federal contractors 

to affirmatively recruit and hire qualified veterans and individuals 

with disabilities. 

The final rules represent the logical step in meeting our nation’s 

longstanding commitment of promoting and protecting employment 

opportunities for these populations. They set a hiring benchmark 

for veterans and a utilization goal for people with disabilities, as 

well as the data categories contractors can use to measure their recruitment and hiring strategies. 

Some may ask whether we need to set measures and hiring goals 

and benchmarks since the protections and affirmative action rules 

are already in place. The answer is yes. I have been in management long enough that what gets measured gets done. 

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Employment is critical to a veteran’s successful transition. It is 

the foundation to their successful transition to civilian life. Once 

employed, health care and ability to have a home follows. 

Employment also leads to greater independence for individuals 

with disabilities. Despite national efforts and good intentions, people with disabilities continue to face double-digit unemployment 

and veterans still struggle to find jobs. 

My written testimony features a female veteran from New Jersey 

who struggles to find work. She is depressed and frustrated that 

no one will give her a chance. We are helping her through our new 

women veterans program. 

Why do these two populations struggle to find work? The female 

veteran pointed out to stigma, bias, and fear on the part of prospective employers. 

Unfamiliarity with veterans is also an issue. My written testimony highlights a company interested in hiring veterans, yet their 

H.R. manager questioned whether veterans fit into the company’s 

participatory culture, given the command and control and top-down 

culture of the military. 

Older veterans and workers with disabilities often find similar 

employer apprehension. 

Easter Seals works to match qualified job seekers with New Jersey businesses. When we do, companies come back looking for similarly-qualified candidates, but the key was getting the company to 

first consider the person. The final rules will ensure companies are 

actively recruiting and reviewing candidates from these populations. 

Like from my first experience, these changes don’t guarantee a 

job or an interview, but they help assure contractors are effectively 

recruiting these candidates and that qualified candidates are seriously considered. These rules will provide veterans and people with 

disabilities with the chance to compete for jobs at companies that 

receive federal funding. 

Thank you for the opportunity to testify. I will be pleased to answer any questions. 

[The statement of Mr. Fitzgerald follows:] 

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Chairman WALBERG. Thank you, Mr. Fitzgerald. 

Mr. Kirschner, recognized for your 5 minutes of testimony. 

STATEMENT OF MR. CURT KIRSCHNER, PARTNER, JONES DAY, 

SAN FRANCISCO, CALIFORNIA, TESTIFYING ON BEHALF OF 

THE AMERICAN HOSPITAL ASSOCIATION 

Mr. KIRSCHNER. Good morning, Chairman Walberg, Ranking 

Member Courtney, and distinguished members of the subcommittee. I am Curt Kirschner, a partner of the Jones Day law 

firm, and today I am testifying on behalf of the American Hospital 

Association, with its over 5,000 member hospitals. Thank you for 

the opportunity to testify. 

My comments today will briefly summarize a critical issue facing 

our nation’s hospitals. A more thorough discussion of this issue is 

included in AHA’s written testimony submitted to the subcommittee, which I request to be introduced into the record. 

Recently, the OFCCP has sought to expand aggressively its jurisdiction over hospitals without advance notice to those hospitals and 

without their agreement or consent. The agency’s attempt to expand its jurisdiction is based on hospitals providing medical care 

pursuant to federally funded health benefit plans, including 

TRICARE, the health benefit plan for servicemembers and their 

families; and FEHBP, the health plan covering federal employees 

and their families. 

The OFCCP is seeking to cover hospital providers participating 

in the managed care plan options within TRICARE and FEHBP despite the fact that the government agencies that actually administer those programs—the Department of Defense and the Office of 

Personnel Management—continue to assert, through their own regulations, that such hospitals are not government contractors. 

To be clear, the concerns of our nation’s hospitals with the 

OFCCP’s position has nothing to do with being subject to nondiscrimination laws. Hospitals already are and will continue to be 

governed by numerous federal, state, and local nondiscrimination 

laws regardless of whether they are considered federal contractors. 

Rather, the concerns expressed here are based on the massive 

record-keeping obligations and sometimes crushing regulatory burdens that the OFCCP unknowingly imposes on hospitals as a result 

of their being deemed federal contractors as a result of providing 

medical care to servicemembers and federal employees. 

The OFCCP’s position is a significant departure for the agency. 

For many years, including both the Clinton and Bush administration, the agency’s position on this issue has been consistent with 

that of the DOD and the OPM—that is, that hospitals participating 

in TRICARE or FEHBP are not considered federal contractors. 

Now the OFCCP’s current position conflicts with both the regulations of the OPM and the DOD, and it also conflicts with the Grant 

Act, the U.S. law that excludes payments such as those received 

from federally funded health benefit plans from the definition of 

what constitutes a federal procurement contract. 

The OFCCP’s recent expansion of jurisdiction over hospitals is 

untenable for a number of other reasons. First, there is no reasonable explanation for the agency’s abrupt change in position. The 

federal benefit plans at issue have been—including their managed 

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care components—have been consistent and not substantively 

changed for many years. 

In fact, the only recent legal change that occurred was the 2011 

adoption of section 715 of the National Defense Authorization Act, 

which explicitly sought to limit the OFCCP’s jurisdiction over hospital providers participating in TRICARE. Despite this new limiting statute, the OFCCP has argued that this law does not actually deprive the agency of jurisdiction over hospitals participating 

in the TRICARE program. 

The agency’s proposed dichotomy between managed care and feefor-service plans makes no sense. Under the agency’s view, a medical procedure performed at one hospital, pursuant to a TRICARE 

plan that is participating in a plan with managed care options, 

would cause the hospital to be considered a federal contractor. 

On the other hand, the same procedure performed at a hospital 

that participates in a TRICARE plan that is a fee-for-service plan 

would not cause the hospital to be a federal contractor. Such different treatment of hospitals providing essentially the same care is 

illogical. 

Moreover, the ambiguity created by the OFCCP’s position will inevitably lead to costly and unnecessary litigation over the agency’s 

jurisdiction, diverting precious resources that would otherwise be 

available for patient care. 

In conclusion, the delivery of patient care, whether provided as 

part of a fee-for-service or managed care contract, should not be 

deemed to be a federal contract. Therefore, the AHA fully supports 

H.R. 3633, the Protecting Health Care Providers from Increased 

Administrative Burdens Act, introduced yesterday by Chairman 

Walberg. This bill would help maintain a robust network of health 

care providers for servicemembers, federal employees, and their 

families by providing clear legal guidance that the care rendered to 

them under federally funded programs would not unknowingly and 

incorrectly classify the providers as federal contractors. 

Thank you for the opportunity to provide these comments. 

[The statement of Mr. Kirschner follows:] 

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Chairman WALBERG. Thank you. 

And I thank all of the panelists for your testimony. Give us a lot 

to work with in our questioning. 

And before I recognize my colleagues for their 5 minutes of questioning, without objection, I ask that this letter from the Associated 

General Contractors of Americas addressing their concerns with 

the regulations be inserted in the record. 

[The information follows:] 

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Chairman WALBERG. Without objection, so ordered. 

I now recognize the chairman of Education and Workforce full 

committee, Mr. Kline, for his 5 minutes of questioning. 

Mr. KLINE. Thank you, Mr. Chairman. 

Thank you to the witnesses. We are very pleased that Director 

Shiu could be with us today. 

My colleague, the ranking member on the full committee, Mr. 

Miller, said in a hearing we had the other day that this is a little 

bit like a tale of two cities, where you—Director Shiu says one 

thing and Mr. Fortney says another thing and there are two different cities, apparently. But there are regulations that we are trying to get at here that cause some confusion. 

So, Director Shiu, I just want to get this clear on the record. Mr. 

Fortney was expressing some concerns about individual right to 

sue. As I understand it, both the OFCCP and the Equal Employment Opportunity Commission have asserted that inviting applicants to self-identify as disabled at the pre-offer stage does not violate the Americans with Disabilities Act. I understand that is your 

position and EEOC’s. 

But because there is a right to sue under the Americans with 

Disability Act, Mr. Fortney was proposing that OFCCP join as 

amici and defend follow contractors who face private suits pursuant 

to the Americans with Disabilities Act. Will OFCCP join as amici 

in such a case? 

Ms. SHIU. Thank you for your question. I would be happy to discuss that with my solicitors. 

We firmly believe that—and as the EEOC has stated—that you 

can—a contractor, in furtherance of affirmative action—in furtherance of affirmative action, that is the key there—can ask somebody 

before they are offered a job whether they have a disability. That 

person doesn’t have to answer the question nor does that person 

have to disclose the disability. 

And the reason why we are trying to do that is so that both contractors can begin to get the baseline data that they need in order 

for them to measure how well they are doing in— 

Mr. KLINE. All right. Forgive me for interrupting. I have got a 

few more questions here. 

But the question remains, I mean, they have concerns that it 

looks like in the language under ADA that you cannot—cannot— 

in the pre-offer stage, inquire about disability. Even though it is 

self-identifying, they believe businesses would believe that they can 

be sued, and certainly they can be sued. And that costs money and 

time. 

And so the question is, because it is your opinion that it is okay 

to do that, will you join as amici and defend federal contractors 

who face these suits? Just a— 

Ms. SHIU. I would be happy to discuss that with the solicitors 

and— 

Mr. KLINE. Okay. Thank you. 

Let me move on here a little bit. Let’s talk about veterans. 

One of two ways, according to your regulations, which a contractor may fulfill the requirements of the new veterans regulations is to set an across-the-board 8 percent hiring benchmark. 

OFCCP states this 8 percent number is reflective of the number of 

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veterans currently in the civilian workforce. Although the benchmark is based on all veterans, the regulation pertains only to covered veterans, a subset of all veterans. 

Are you aware of any data on the number of covered veterans in 

the civilian workforce and did you take that into account? 

Ms. SHIU. We looked at all the available data that was—that we 

could get our hands on, and it is my understanding that VEVRAA 

covers a majority of veterans. But I cannot give you a specific number with respect to the difference. But yes, it is something that we 

did look at. 

Mr. KLINE. You did look at but you don’t actually know what 

that number is? 

Ms. SHIU. Because it doesn’t exist, sir, as far as I can—as I understand. 

Mr. KLINE. So it is a somewhat arbitrary number, then? Okay. 

Thank you. 

Mr. Shanahan, you are here representing the University of North 

Carolina. My time is about to run out, so the simple question is, 

what makes a university system unique, as compared to other government contractors, when undergoing and responding to an 

OFCCP audit? 

Mr. SHANAHAN. I think one of the things that would make the 

University of North Carolina unique compared to other contractors, 

Congressman, might be some of the technical differences in our 

workforce. 

So for example, promotions of faculty who are on tenure track 

when they achieve tenure or they move from assistant professor to 

an associate professor, that is not the typical promotion you would 

see; it is not the sort of typical competitive event you would see in 

another contractor establishment or, say, in the private sector, or 

even in other government sector employment relationships. Sometimes that has been an issue that has had to be explained in compliance evaluations to OFCCP investigators. 

Mr. KLINE. Okay. Thank you. 

I see my time is expired. I yield back. 

Chairman WALBERG. I thank the gentleman. 

And now I recognize the gentlelady from Ohio, Ms. Fudge, for 

her 5 minutes of questioning. 

Ms. FUDGE. Thank you very much, Mr. Chairman. 

And thank all of you for being here today. 

Just want to make a statement and then I am going to actually, 

Ms. Shiu, allow you to respond to the questions that were asked 

of you just a few moments ago. 

But it is interesting to me that as we talk on both sides of the 

aisle about accountability and transparency that we would not 

want to fill out some forms, that we would not want to assist those 

who have served this nation. I am concerned about what we are 

doing here today. 

Certainly you have gone through the rule-making process. It has 

been open, as you talked about all of the hearings and how you listened. 

I don’t know why we are even having this hearing today since 

we can’t change it. It is nothing, to me, more than just politics. We 

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are doing what is necessary as a government to ensure that those 

who we provide a contract to follow certain rules. 

You know, I heard the chairman talk about the job creators. We 

are the job creators. The federal government is creating the jobs. 

The contractors are not. 

And so I think that it is incumbent upon us all to understand 

why we are here, and that is to ensure that taxpayers’ dollars do 

go to assist those persons who we believe are important. 

And so with that, I am going to ask Ms. Shiu if you want to answer the questions that were asked of you of the chairman earlier? 

Ms. SHIU. Yes. First of all, let me say that there would be huge 

benefits that would inure to the economy, to people with disabilities, and veterans, just by having these rules. 

The creation of jobs means the creation of a new taxpayer base. 

It means that we would diminish government entitlements to people who otherwise would not be able to work. It means that there 

is going to be a whole new treasure trove, if you will, of people who 

are available for contractors to hire. 

I do want to address one thing, if you would, which is these are 

aspirational goals, and the reason why they are not quotas is because nobody is going to be found in violation of the law if they do 

not hit the goal or the benchmark. But you have to try. You have 

to put into place systems. 

You have to measure what you are doing to determine whether 

you are doing enough outreach, doing enough recruitment, hiring 

people, retaining them. You are going to have to look and measure 

every step of the way. You are going to have to look at policies. 

The idea is to create a culture where individuals with disabilities 

and vets are welcome, okay? That is really what this is about, 

where people are unafraid to self-disclose, to disclose they have a 

disability and they are not going to fear retaliation. 

I do want to make one comment, if I might, Congresswoman, in 

response what Mr. Fortney has said. In discussing this G&K case, 

which I understand is subject to discussion with my solicitors, I 

don’t want you to get the impression that this is somehow typical— 

although I have not been totally briefed on it—of what the OFCCP 

does. 

It is important for people to know that in discrimination cases 

we are not proceeding based on whether the contractor has or has 

not met a utilization goal. Instead, we are looking at a substantial, 

usually statistically significant pattern of one protected group getting treated much worse in the hiring process than the favored 

group, as well as other evidence from our investigations and interviews to draw that conclusion. 

So I don’t want you to draw the assumption that somehow failing 

to meet the goal, one leads to violation and something that we 

would sue for. 

Also, if I might answer one other question. Chairman Walberg, 

with all due respect, I think that the numbers with respect to the 

previous administration versus this administration are not accurate in so far as the previous administration included in its numbers the value of every job that they negotiated for, regardless of 

whether anybody actually got that job. In fact, we have decided not 

to use that approach and I would be happy to brief you. 

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We have done 6 percent more audits; we have a higher findings 

of discrimination—triple—with respect to vets, much higher with 

respect to Section 503. But we have done it in a more quality way 

and we have recovered more per year on behalf of victims of discrimination. 

Ms. FUDGE. Thank you very much. 

I just want to say that it is—there are many, many people who 

want to do business with the federal government. There are many 

people who would be willing to provide the information that we are 

requesting today. 

Thank you, and I yield back. 

Chairman WALBERG. I thank the gentlelady. 

And I thank Director Shiu for offering to discuss those numbers. 

We would be delighted to discuss those. It is our intention to be 

accurate and to work off of accuracy in issues. At present we don’t 

agree, but willing to discuss further. 

I am delighted now to recognize my colleague from Indiana, Mr. 

Rokita, for your 5 minutes of questioning. 

Mr. ROKITA. I thank the chairman. 

Ms. Shiu, thank you for being here. Picking up on the discussion 

that you referenced that—with Mr. Fortney, or his testimony, rather, does a conciliation agreement, in your opinion, have the force 

and effect of law or not? Right? If there is a conciliation agreement, 

according to Mr. Fortney’s testimony, that has a quota, that has a 

number in it, and that is violated, quote-unquote, or that is not followed through, are there not consequences? Would you not enforce 

that somehow? 

Ms. SHIU. It depends on the other provisions of the agreement. 

I am not— 

Mr. ROKITA. You wouldn’t enforce a conciliation agreement? 

Ms. SHIU. It depends on whether there are provisions to enforce 

it, yes. It depends on what is in it. Sometimes conciliation agreements— 

Mr. ROKITA. Mr. Fortney, with your experience with conciliation 

agreements what have you found with regard to my question? 

Mr. FORTNEY. Rigorous and demanding insistence by the agency 

that all the terms be met as scheduled. 

Mr. ROKITA. Right. 

It is a contract. It has the force and effect of law. I certainly disagree with your earlier statement and I am concerned, as a person 

who used to run five agencies in a previous life, that the head of 

an agency would be that misinformed about the force and effect of 

an agreement that their agency enters into on almost probably a 

daily or weekly basis, and your ability to enforce and your intention to enforce such agreements. 

Would you say, speaking of your agency, that it is more efficient 

or less efficient than it was during the previous administration? 

Ms. SHIU. Definitely more efficient. 

Mr. ROKITA. By what metric would you say that it is more efficient? 

Ms. SHIU. By looking at the number of audits that we do, by 

looking at the quality of the audits, by looking at the breadth— 

Mr. ROKITA. How do you measure quality of the audit? 

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Ms. SHIU. We measure quality in a number of different ways depending on things that we call deficiencies—technical deficiencies 

or other deficiencies, timeliness. We have worked very hard to reduce the timeliness—the time it takes for us to investigate cases, 

the amount of recoveries we get, the amount of jobs that we have 

recovered, whether we have been able to save money in litigation— 

Mr. ROKITA. Let me stop you there. Let me stop you there at 

timeliness. It seems like an investigation, if it is an honest one, at 

least when I used to be responsible for hundreds of investigations, 

you weren’t put on a time schedule because that could lead to short 

circuiting, that could lead to cutting corners. 

An investigation takes as long as it needs to find the truth. That 

is what an honest investigation does, so I would question—and I 

appreciate what you are saying, and in fact, I agree with it, and 

apparently other witnesses share the same feeling. What measured 

is what gets done, and you only have to ask my previous employees 

and current employees about what we do in terms of strategic planning. But you have to have honest metrics, in my opinion. 

One way to do that, I think, is to measure budgets, and we are 

going to pick up this discussion, perhaps, where the chairman left 

it and your response to it. It is true that the President’s fiscal year 

2014 budget request was around $27 million more than in the final 

year of the previous administration. Is that accurate? You questioned some accuracy, and I am not sure if that is what you were 

talking about or not. 

Ms. SHIU. I don’t know that to be the case, but if you say so I— 

we can work off of that premise. 

Mr. ROKITA. Well, I have figures of—for the record—$81 million in 2008 to $108.5 million in 2014. So assuming that is true, you 

are saying that you have gotten $41 million in financial remedies 

on behalf of 80,000 workers—$512 per worker. 

Ms. SHIU. I believe I said $57 million— 

Mr. ROKITA. Okay. 

Ms. SHIU.—on behalf of— 

Mr. ROKITA. But the previous administration got $171 million for 62,000 workers—$2,630 per worker. But you are saying there is a 

difference in how you measure that? 

Ms. SHIU. There is a difference, sir, because we do not count the 

amount of the value of a job if we negotiate extra jobs as part of 

the conciliation agreement, which, by the way, is a contract. I think 

I was reading too much into your question, sir. We don’t count the 

value of that job— 

Mr. ROKITA. Okay. It is a contract, meaning that you enforce it? 

My question was do you not enforce the contracts, because you said 

this would not be a quota, that these would be aspirational, and 

my question was, if you get into a conciliation agreement— 

Ms. SHIU. Yes. 

Mr. ROKITA.—and it doesn’t meet the number that is in the 

agreement—we have testimony where you said there was an actual 

number—will you not then enforce that agreement? 

Ms. SHIU. Well, it depends on what the agreement says. What we 

anticipate the agreements will say— 

Mr. ROKITA. It says that there is a number that you have to hire 

so many people with disabilities and/or veterans. 

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Ms. SHIU. What we will enforce, sir, is whatever deficiencies have 

not been worked on with respect to hiring, retention— 

Mr. ROKITA. Like if you didn’t meet the number that is in the 

conciliation agreement, would you enforce on that? 

Ms. SHIU. We will not enforce on the goal or the benchmark 

alone, no. 

Mr. ROKITA. Chairman, I yield back. I see that I am out of time. 

Chairman WALBERG. Thank the gentleman. 

I now recognize the ranking member for his 5 minutes of questioning. 

Mr. COURTNEY. Thank you, Mr. Chairman. 

Mr. Kirschner, I just wanted to cover one point. Again, your 

focus was on the impact of hospitals participating in fee-for-service 

managed care programs that are financed through TRICARE and 

FEHB. 

If a hospital was contracting with the federal government directly for an NIH grant or any other type of department funding, 

you know, again, for research, clinical trials, whatever, again, as a, 

you know, direct contract between a hospital and the federal government, that is a sort of different sort of kettle of fish, right? I 

mean, that is not really what your concern is today. I just want to 

clarify that— 

Mr. KIRSCHNER. That is completely correct. If a hospital enters 

into a contract, whether it is a research grant that would qualify 

as a federal contract or if some other relationship with the federal 

contract where it is clear that is—the parties are entering into that 

knowing that is a federal contract, then they are knowingly entering into an arrangement with the federal government and should 

be subject to the obligations of being a federal contractor. 

Now, they may have concerns similar to those expressed by other 

employers with respect to the burdens imposed there, but that is 

not what our concern is today. 

Mr. COURTNEY. Right. 

Mr. KIRSCHNER. Our concern is where hospitals enter into a contract where on its face it says that this does not make you a federal 

contractor, where the regulations of the entity that is operating— 

Mr. COURTNEY. I appreciate that clarification. And again, I just, 

in terms of the legislation which was mentioned earlier, I mean, it 

is your understanding of that bill that it does not, again, change 

that situation at all, right? I mean, that is— 

Mr. KIRSCHNER. It does not change that. In fact, the— 

Mr. COURTNEY. Just wanted to clarify that point. 

Mr. Fitzgerald, as the witness here today who is on the ground 

dealing with people affected by these regulations, you know, again, 

I think for some people listening to this they might find it kind of 

incredible that employers resist hiring veterans or people with disabilities who obviously, you know, have the education and training 

and even job experience and the background. I mean, tell us how 

these regulations will help, since they, in some respect they are 

being sort of presented as, again, not mandates or quotas, but how 

will they dovetail with the efforts that Easter Seals is doing on the 

street? 

Mr. FITZGERALD. I think by the aspirational goals will create opportunities for veterans and people with disabilities. I think that 

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employers, if they are working towards achieving a goal, create 

more opportunity, so that I think that qualified veterans will have 

more opportunity to go before an employer, sell their skills, show 

what they can do, and increase the opportunity to hire. 

Given the rate of unemployment for people with disabilities and 

for veterans, the current approach is not working as well. So I 

think, once again, you know, it is a cliche but it is proven to be 

true, what measured gets done. 

And I would like to just mention a cost of not providing employment. I have eight Vietnam veterans in my residential program 

and we spend on annually $60,000 per year for these eight veterans. That comes out to about $480,000 for veterans whose aspirations were never met. 

I am a success story. They weren’t successful. They didn’t find 

the job. They lost hope. And then as the lost hope they ran into 

trouble. 

And today we serve them and support them but there is a cost 

to not creating that opportunity. Employment is kind of the foundation and the success mark particularly for veterans in transition, 

and once they have that—so there is a cost in not moving towards 

this. 

And industry today, you know, the new trend is analytics, and 

everything is about developing analytics for smart business decisions. Why not have analytics for smart business decisions to employ veterans who have served their country proudly? And I think 

we owe them. We owe them opportunity. 

Mr. COURTNEY. Right. 

So when you described in your initial testimony, you know, resistance by some H.R. folks who weren’t sure whether somebody 

who comes out of a military experience, you know, would fit into 

the culture of the company that is there, is there other examples 

that you can cite in terms of resistance by companies when a veteran shows up at their doorstep in terms of whether or not they 

really should be hired? 

Mr. FITZGERALD. I don’t have any other specific examples. I think 

it is the unfamiliarity. 

At an earlier age many more people served in the military so 

they understood military training and could relate it to civilian 

work experience. There are less people that have that experience 

today, so I feel for veterans today, particularly if you are in—were 

in the combat arms, it is harder to translate that military experience into civilian occupation. 

Mr. COURTNEY. Right. 

Mr. FITZGERALD. So I think that is the—it is more difficult today. 

Mr. COURTNEY. Right. Thank you. 

Chairman WALBERG. I thank the gentleman. 

I turn to the good doctor from Indiana, Mr. Bucshon, for your 5 

minutes. 

Mr. BUCSHON. Thank you, Mr. Chairman. 

First of all, I would like to completely disagree that anyone here 

today is being resistant to hiring veterans. I find that everyone I 

talk to out there of course has great respect for what veterans have 

done for their country and wants every one of them to be employed, 

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and I disagree with the previous statements that are to the contrary. 

Ms. Shiu, the question I have—and I am concerned about the 

Americans with Disabilities Act—do you think an employer should 

ask a woman when she comes to be employed whether or not she 

plans to have a family or not? 

Ms. SHIU. No. 

Mr. BUCSHON. Okay. Do you think that there are some people 

out there who are employers that may consider that a potential— 

having a potential impact on their future employment of that individual? 

Ms. SHIU. Perhaps. 

Mr. BUCSHON. Okay. Then why do you think that it is okay for 

businesses now to ask people if they have a disability or not? 

Ms. SHIU. Because the ADA says so. 

Mr. BUCSHON. They can ask, you can ask people—I ran a medical 

practice that had 100 employees and 15 physicians and I can tell 

you that we never—those type of questions in the initial pre-offer 

stage were not the type of things that we would ask. Why? Because 

it violates the law. 

Ms. SHIU. If it is in furtherance of affirmative action, sir, then 

they are permissible questions. 

Mr. BUCSHON. You know, I think you are talking out of both 

sides of your mouth on this issue—I will be frankly honest with 

you—because I have serious concerns about, on one hand, saying 

that employers—people are allowed to have people voluntarily say 

whether they have a disability, but on the other hand, saying that, 

well, it depends on the circumstance, that could be a violation of 

the law. I do think it leaves employers wide open to individual lawsuits. 

As a previous employer—and I can tell you that my wife—I have 

four children. My wife is a working mother. She is an anesthesiologist. I have direct experience with this, and I don’t think that employers should be able to ask women whether they plan to have a 

family or not. I think it should be a violation of the law because 

it is discriminatory, potentially. 

So I have serious concerns about what you said today about accepting the fact that now, because you want to set a quota, the only 

way to do a quota is to have people self-determine whether or not 

they have a disability so that you can use that to establish a quota. 

That is the issue I have, because I think personally it leaves people 

open to violation of the law, and I just think that is a serious problem. 

And I think your intent is—I am not talking about your intent 

or your motivation; I am just thinking, particularly based on the 

law, that you are changing precedent where now people—so say 

what happens, an employer comes in and they asked someone that 

has a disability and the person says, ‘‘I refuse to answer that question.’’ 

Ms. SHIU. That is a perfectly appropriate answer. 

Mr. BUCSHON. Right. And so say that person is someone who— 

is someone who was told to go in to a particular employer because 

they knew they were going to get asked that question and when 

they walked out of the room their attorney filed a lawsuit saying 

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that they were discriminated against because the employer didn’t— 

say they didn’t get the job. 

The employer says, ‘‘You didn’t get the job because you are not— 

you don’t have the requirements.’’ They say it is because they refused to answer whether they have a disability or not. Would that 

be a violation of—would that be a lawsuit that would be something 

you would agree with that they could do that? 

Ms. SHIU. It is certainly not a lawsuit I would have taken as a 

plaintiff’s lawyer. 

Mr. BUCSHON. Why not? 

Ms. SHIU. Because you have to have proof that there was an intent to discriminate against someone solely because of their disability. 

Mr. BUCSHON. Well if somebody comes in— 

Ms. SHIU. There is no nexus— 

Mr. BUCSHON.—and you ask them the question and they—as it 

turns out, they say—say they do have a disability but they refuse 

to answer the question— 

Ms. SHIU. Just because a pregnant woman applies for a job 

doesn’t mean that if she doesn’t get the job it is because she was 

pregnant. I mean, there is an analysis that has to go and I would— 

I find that to be very thin on the facts and the law, sir. 

Mr. BUCSHON. Yes, well I find your testimony to be very thin on 

the facts, also. 

Mr. Kirschner, I want to ask you a question. Your testimony 

states that over 3,300 hospitals and clinics provide coverage to almost 10 million TRICARE beneficiaries that an expansion of 

OFCCP’s jurisdiction to classify these hospitals as a federal subcontractor will cover almost 60 percent of the registered hospitals in 

the United States. 

If OFCCP is successful in its assertion of jurisdiction over hospitals, how do you expect this potentially will affect the care for our 

nation’s servicemembers and veterans? 

Mr. KIRSCHNER. Well, each hospital would need to make its own 

decision, but what the DOD has already found in a published report is that hospitals are becoming more resistant to signing up to 

participate in TRICARE programs out of a concern that they could, 

after the fact, be found to be federal contractors. 

Mr. BUCSHON. So what you are saying is it is going to limit access to health care? Because I was a heart surgeon before. I know 

about health care. What you are going to say is maybe a lot of community hospitals in smaller communities just aren’t going to mess 

with it. 

Mr. KIRSCHNER. Correct. If they are not otherwise federal contractors and therefore, just participating in TRICARE or FEHBP 

would cause them to, by that—by performing that medical care, become federal contractors, hospitals could make a decision to say, ‘‘I 

don’t want that burden—that administrative burden, and so therefore we are not going to provide care for either servicemembers or 

for federal employees and their families.’’ 

Mr. BUCSHON. Thank you. 

Mr. Chairman, I yield back. 

Chairman WALBERG. I thank the gentleman. 

I recognize myself for my 5 minutes of questioning. 

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And, Director Shiu, I appreciate the opportunity to sit down, 

hopefully soon, with the issues of the results and the data that is 

there. We simply took— 

Ms. SHIU. Of course. 

Chairman WALBERG.—data as communicated by your office on 

the results for the past as well as the present, so without understanding any changes that might be there, it is difficult to determine. 

I noted earlier our frustration with the administration’s lack of 

cooperation with our oversight specifically on this important issue. 

On September 19th we sent the Department of Labor an oversight 

request. Unfortunately, we did not receive a response until last 

Wednesday, right before the holiday. 

I am confused as to why the department was so late in delivering 

a wholly inadequate response, and I state that way because the department failed to answer all of our questions or provide the internal documents we requested. Based on what we did receive, am I 

to understand the department did not communicate with OMB regarding the rule-making and no one was denied a meeting with the 

administration regarding this rule-making? 

Ms. SHIU. Chairman Walberg, the DOL’s Office of Congressional 

and Intergovernmental Affairs guides the process for responding to 

congressional oversight matters. I have not been specifically involved in that but I do understand that hundreds of pages of documents have been turned over and questions were, in fact, answered. 

I also understand that there are ongoing discussions between 

your staff and their staff and I certainly hope we can get this resolved and get you the information that you want. 

Chairman WALBERG. Well, that is not my understanding. 

Ms. SHIU. Oh, okay. 

Chairman WALBERG. In February we held a hearing on guidance 

issued by the department concerning the WARN Act and sequestration. In response to similar frustrations with a lack of oversight cooperation, Assistant Secretary Oates stated that the OCIA handles 

the oversight requests and her agency was not involved in the process. 

I would hate to think that the department is obstructing our 

oversight. Will you assure us that by December 13 we will receive 

a complete and adequate response to our oversight request, including all requested materials, documents, and communications? 

Ms. SHIU. I will confer with OCIA and our solicitors. On our staff 

we have had people who have been working with OCIA on the 

oversight request, just to allay that one particular fear. 

Chairman WALBERG. Well, in our deliberative process we need 

those issues resolved. And so I would continue to push for that to 

be made. And I know there are a lot of pushes that go on, but it 

is my responsibility and this subcommittee’s responsibility to get 

the answers that we need to make accurate decisions. 

The Department of Defense stated in 2010 that it was impossible 

to achieve the TRICARE mission of providing affordable health 

care for our nation’s active duty and retired military members and 

their families if onerous federal contracting rules were applied to 

more than 500,000 TRICARE providers in the United States. Are 

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you at all concerned, Ms. Shiu, about the lack of access to care the 

Department of Defense believes our nation’s servicemembers and 

veterans will face if OFCCP continues to assert jurisdiction over 

health care providers, along with testimony we received from Mr. 

Kirschner today about the practical ramifications to the hospital industry? 

Ms. SHIU. Of course I am concerned that everybody has appropriate health care, but I don’t believe that it is—OFCCP has not 

expanded our jurisdiction. Whatever people may think, we just 

not—we have not expanded our jurisdiction over TRICARE-covered 

subcontractors nor do we believe that all health care providers that 

participate in TRICARE are subcontractors. 

In fact, our subcontractor coverage is determined on a case-bycase basis. The necessary to performance prong of the definition at 

issue in the TRICARE case has been in the regulations since 1978. 

Chairman WALBERG. Well, let me jump in there and ask again, 

then, Mr. Kirschner, why would you disagree with that? 

Mr. KIRSCHNER. On several points, Chairman. 

First of all, the OFCCP has expanded its jurisdiction. The 

OFCCP had previously issued directives—internal directives—stating that, for example, that coverage under the FEHBP would not 

make you a federal contractor. The OFCCP has rescinded that. 

The OFCCP has also taken the position that participation in 

TRICARE in a managed care component of TRICARE would make 

hospitals a government contractor. That is a new position. Previously, TRICARE participation like FEHBP, like Medicare, was 

treated as a federal financial assistance that did not result in the 

hospital being a federal contractor. 

The OFCCP’s current position, which is, as stated by Director 

Shiu, a case-by-case basis, is completely unworkable from a hospital’s perspective. When the hospital enters into a— 

Chairman WALBERG. I am going to have to cut it off here. I wish 

we could go on, and we will, on this issue and others related to it 

in the future. 

But I think what I did want to get at was that while there is 

a statement from the department’s position, yet the practical ramifications and impressions out in the field are so much different, 

and we need to deal with that. 

But my time is expired, so I will try to hold myself to that, as 

well. 

I thank the panel for your participation today. 

And now I turn to my ranking member for final comments. 

Mr. COURTNEY. Thank you, Mr. Chairman. Again, before making 

my remarks I just want to introduce a joint letter which was 

signed by the Bazelon Center for Mental Health Law, National Disability Rights Network, Epilepsy Foundation, VetsFirst, Paralyzed 

Veterans of America, the National Down Syndrome Congress, 

Easter Seals, the National Council on Independent Living, and 

Source of America—again, a joint letter in support of the two rules 

that we have been discussing here today. 

Also, a separate letter from the Women’s Legal Defense and Education Fund, the National Women’s Law Center, and the Leadership Conference on Civil and Human Rights. So if I can submit 

those? 

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[Additional Submissions by Mr. Courtney follow:] 

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Chairman WALBERG. Without objection, and hearing none, they 

will be added to the record. 

Mr. COURTNEY. Great. Thank you. 

Again, I want to thank the witnesses. This has been a very, I 

think, healthy, somewhat adversarial or—at times, but that is the 

way our system is set up, and again, I think there has been some 

good information that we have elicited from today’s hearing, and I 

am sure there will be more follow up with the agency, particularly 

in terms of the question of just enforcement, which I think is a legitimate concern that people really should, again, get some more 

guidance from you in terms of how these rules would be enforced. 

But I also think it is important that we recognize, you know, that 

chart over there, as well, which is that there are hundreds of thousands of Americans who I think are prepared to contribute to this 

country, and we, again, and particularly in the area of federal contracts, need to really ensure that we are—in a way that is not intrusive or excessive mandates, trying to advance a goal which I 

think most Americans would support. 

You know, I would say, you know, Mr. Fitzgerald’s comments regarding the obstacles that veterans face, which again, were challenged, the fact of the matter is the unemployment rate for veterans, particularly Iraq and Afghanistan War veterans, exceed both 

their own age group and the country as a whole. That is unacceptable. 

And, you know, when Admiral Mullen, who was chairman of the 

Joint Chiefs, left military service, he gave his farewell address, 

which was a remarkable speech, in my opinion, but he really 

warned about the fact that our military, as Mr. Fitzgerald said, has 

become the 1 percent. We talk a lot about the 1 percent, the 99 

percenters, but there is no question—you know, numbers don’t 

lie—that the fact of the matter is that the—particularly with an all 

volunteer force, which is so valuable in so many ways—but the fact 

of the matter is that the interaction between the vast, vast majority of our country, including employers and some who, again, benefit from federal contracts, and their exposure to people who serve 

in the military—as Admiral Mullen—you can’t get more credible 

than Mike Mullen, is very limited just because of just the way 

things have developed over time in terms of how we raise our 

forces for our country. 

So the unemployment rate, which again, is unacceptably high for 

people leaving the military despite the best efforts for tax incentives for employers, and I am sure a lot of members, including all 

who are on the committee who do the best to promote, at job fairs 

and what not, hiring these folks, we are falling short here. And to 

say that we can’t set up some system where federal contractors can 

sort of be part of that solution, again, I think is something that we 

really should do better. 

I mean, we really need to use our best, balanced, reasonable approach to try and, again, help these folks who have done so much 

over the last 12 years—longest military conflict in American history with an all volunteer force. Unemployment rate that, again, 

far exceeds the norm. You know, that just is not something that 

I think any American would find to be satisfactory or acceptable. 

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159 

So again, hopefully this dialogue which we started here today 

will answer some of the questions that have been brought forth. 

Again, Mr. Kirschner has raised, I think, some important issues 

about impact on programs that have—that help our TRICARE military retirees and active duty folks, in terms of making sure that 

we maintain access for hospital services. 

And again, I want to compliment the chairman for holding this 

hearing and look forward to working with you in the future to try 

and, again, work out some of the kinks that have come forward 

here today. And with that, I yield back. 

Chairman WALBERG. I appreciate those comments and I respect 

them because I know they are true. And I look forward to working 

together on it. 

This is an important issue, and I appreciate the attention to this 

hearing today—each of you in the room as well as those of you in 

the panel. There is no one in this room at this dais or who has left 

this room that does not want to create more jobs, more opportunity 

for everyone in our great nation. 

And that includes those that would be considered disabled for 

whatever reason, and certainly those who have served our country 

in settings that many of us can only assume about the extent of 

what that means but appreciate it nonetheless. 

We want to encourage growth. We want to encourage opportunity. 

We want to encourage hope in our society that indeed, in this 

country, of any country on the face of the earth, there is still that 

wonderful dream called the American dream that can still be 

achieved and that there are entities in our governmental system 

that will do their best to assure that unnecessary roadblocks are 

kept out of the way, not allowed to be there, but also that same 

government and its system will recognize the reality of what 

human frailty and options and challenges that are out there in the 

real world put in the way of well-meaning people that still must 

have certainty reign in order to produce jobs and hope and economy for all people. 

Our nation has been successful in doing that better than any 

other nation, and that is why a hearing like this is put in place 

for oversight to make sure that we don’t vault ourselves backwards. 

And so I would say thank you, certainly, to a panel that is made 

up of people who live in that real world, whether it be in health 

care, which is, frankly, frustrated right now with all sorts of uncertainty in how to go forward in dealing with a health care plan that 

isn’t just a Web site but is a product that has produced a lot of uncertainty right now; with entities that deal with veterans and their 

specific needs and realizes the outcomes and the breakdown when 

we don’t meet those needs and find now secondary solutions that 

have to be undertaken for their lives; educational systems that are 

challenged with costs to both students and the institutions to get 

back on track still as a world leader but, nonetheless, in a global 

challenge now that we have not had before—to meet those needs 

and still deal with bureaucratic challenges to your handling of that; 

and then ultimately, to human resource people who have to have 

Solomon’s sword in hand at times to try to split through questions 

that come because of competing catch-22 situations put in law by 

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well-meaning entities that need the touch of reality that comes 

from the real world. 

And then, Ms. Shiu, your response with doing the job you have 

been asked to do, and that is why we are here to help you do that 

and I hope that will continue to be the process that we can work 

together on. 

Having said all of that, we look forward to additional response, 

potentially additional hearings, roundtables, whatever it might 

take to make the system work for our people for which we at this 

dais have been elected to represent. There being no further business, the committee stands adjourned. 

[Additional Submissions by Mr. Miller follow:] 

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[Additional Submissions by Mr. Walberg follow:] 

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[Questions submitted for the record and their responses follow:] 

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[Whereupon, at 11:25 a.m., the subcommittee was adjourned.] 

Æ 

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