[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
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
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Tom Price, Georgia Rubeen Hinojosa, Texas
Kenny Marchant, Texas Carolyn McCarthy, New York
Duncan Hunter, California John F. Tierney, Massachusetts
David P. Roe, Tennessee Rush Holt, New Jersey
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Rauul M. Grijalva, Arizona
Matt Salmon, Arizona Timothy H. Bishop, New York
Brett Guthrie, Kentucky David Loebsack, Iowa
Scott DesJarlais, Tennessee Joe Courtney, Connecticut
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Larry Bucshon, Indiana Jared Polis, Colorado
Trey Gowdy, South Carolina Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania Northern Mariana Islands
Martha Roby, Alabama Frederica S. Wilson, Florida
Joseph J. Heck, Nevada Suzanne Bonamici, Oregon
Susan W. Brooks, Indiana Mark Pocan, Wisconsin
Richard Hudson, North Carolina
Luke Messer, Indiana
Juliane Sullivan, Staff Director
Jody Calemine, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
TIM WALBERG, Michigan, Chairman
John Kline, Minnesota Joe Courtney, Connecticut,
Tom Price, Georgia Ranking Member
Duncan Hunter, California Robert E. Andrews, New Jersey
Scott DesJarlais, Tennessee Timothy H. Bishop, New York
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Larry Bucshon, Indiana Gregorio Kilili Camacho Sablan,
Richard Hudson, North Carolina Northern Mariana Islands
Mark Pocan, Wisconsin
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
Questions submitted for the record....................... 180
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.
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
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 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.
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
individuals, 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 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.
______
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 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 national 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.''
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 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 resource-intensive. 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
rule-making 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.
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 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
fee-for-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 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 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.
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?
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.
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 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, 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 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.
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 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-by-case 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?
[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.
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 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.]
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