The Office of Federal Contract Compliance Programs issued its revised regulations implementing Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act on September 24, 2013. Since then, contractors have had more questions than answers. What is troubling is the OFCCP’s apparent failure to think through many of the obvious issues now facing contractors, and instead of incorporating answers to these questions in the regulations before issuance, the OFCCP is now “regulating by fiat” or through its informal guidance.

It is important to remember the distinction between regulations and an agency’s informal interpretative guidance. Regulations have the force and effect of law – unless a court rules them to be invalid for some reason. Informal guidance issued by an agency, however, may be provided some deference by the courts, but generally guidance is just an agency’s current interpretation and is not bi