Contractors Get Affirmative Action Exemption

From the NY Times:

By JONATHAN D. GLATER
Published: September 20, 2005

The Labor Department has temporarily suspended government requirements that its contractors have an affirmative action plan addressing the employment of women, members of minorities, Vietnam veterans and the disabled if the companies are first-time government contractors working on reconstruction in the wake of Hurricane Katrina.

While employment lawyers said it was not clear how strong an impact the exemption would have, the move comes as President Bush has tried to address the perception of unfairness in the government's response to the hurricane.

Under the rules that normally apply to companies hired by the government, businesses with more than 50 employees working on contracts for more than $50,000 must develop an affirmative action plan. But according to a memorandum on the Labor Department's Web site, dated Sept. 9, the goal of the exemption in the case of recovery work associated with Hurricane Katrina is to reduce the burden of paperwork on government contractors and so encourage more companies to jump into assisting with rebuilding from the storm damage.

The exemption is to last for three months, unless it is extended.

"It does not waive affirmative action requirements, it does not waive job posting requirements, it does not waive their obligation not to engage in discrimination," said Charles E. James, deputy assistant secretary at the Labor Department. "It's very, very limited."

The announcement by the Labor Department came the day after President Bush announced the suspension of a law that requires employers to pay the locally prevailing wage to construction workers on federally financed projects. The order applies to parts of Louisiana, Mississippi, Alabama and Florida. In explaining the move, the proclamation stated that "the conditions caused by Hurricane Katrina constitute a 'national emergency.' "

The Labor Department affirmative action memorandum, which Mr. James signed, specifically states that laws against discrimination continue to apply to federal contractors, as do requirements that employers keep records and post notices stating that "equal opportunity is the law." The memorandum only affects the requirement that employers develop a written affirmative action program, Mr. James said.

The memorandum received little attention in the media frenzy over the aftermath of the storm and hearings on the nomination of Judge John G. Roberts Jr. to the Supreme Court. Protests against it began circulating online late last week.

"It is not simply a paperwork exercise," said Shirley J. Wilcher, deputy assistant secretary for federal contract compliance in the Clinton administration who is now the interim executive director of the American Association for Affirmative Action. "It is the basis for companies to be mindful of their obligation not to discriminate."
But it is not clear how the exemption may, in practice, affect employment practices at companies, said B. Scott Silverman, an employment lawyer at Morrison & Foerster in Los Angeles. Its impact depends on how much affirmative action plans actually affect short-term hiring, he said.

"The only companies that will end up being completely excused are those that are not doing business with the federal government now and might not otherwise try to do business with the government," Mr. Silverman said.
He added that he thought a three-month exemption would probably not affect employment practices greatly, especially in light of the dire need for employees to rebuild.

"I don't think this exemption is going to restrict those opportunities in any way, shape or form," Mr. Silverman said.