OFCCP Week in Review: January 9, 2017

John C. Fox and Candee Chambers

OFCCP Week in Review: January 9, 2017

John C. Fox and Candee ChambersThe OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox and Candee Chambers.

Week of January 2, 2017: Senate Set the Following Confirmation Hearings for Trump Appointees

Note: Various Senate Committees hold confirmation hearings of about 1,100 of the approximately 4,000 political appointees the Trump Administration will appoint to public office to run the federal Executive Branch of government. The 1,100 are the most important of the appointees and pursuant to the balancing of power among the three Branches of the federal government our country’s Founders installed in the Constitution was the right of the Senate to provide its “Advice and Consent” to the President as the head of the Executive Branch of the federal government as to treaties, and numerous public servants the President appoints to run the Executive Branch of the federal government:

“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” See Article II, Section 2, Clause 2 of the United States Constitution

As a practical matter, the coming “confirmation hearings” of the 1,100 top Trump Administration political appointees serve many important purposes, including to allow the Senate to voice its confidence or displeasure with a particular appointment and thus seek to influence coming policy decisions, provide a platform for the political party out of power in the Senate to ask questions of the nominees designed to put on the record that party’s policy views, to introduce the public to the federal government’s coming leadership team and to educate the public about the pressing policy issues of the day as the new Administration takes its seat and picks up the reins of power. Most Confirmation Hearings last a few hours, or a day for an important position or a controversial nominee. A two-day Hearing is a trail sign of an important position and a controversial nominee.

The Senate divides its work by subject matter. Accordingly, the Senate Committee on the Judiciary (led by Chairman Sen. Chuck Grassley (R-IA) and Ranking (minority) Member Sen. Patrick Leahy (D-VT) will hold hearings as to all appointees responsible for enforcing the federal government’s civil and criminal laws. The Senate Committee on Health, Education Labor & Pensions (H.E.L.P.) chaired by Sen. Lamar Alexander (R-TN) and joined by Ranking Member Sen. Patty Murray (D-WA) will hold hearings as to all employment-related nominees. Having prepped many Republican and Democrat nominees for Senate Confirmation Hearings, I can tell you the prep is grueling, lasts weeks and is fraught with surprises. Many candidates the White House sends up to The Hill for courtesy preliminary interviews come back uncertain as to whether they want to continue. With some regularity, the Senate privately advises the White House that the candidate is just not up to the task and should be withdrawn, and the candidate is silently withdrawn. This does not happen so much with the top 100 “Big Dogs”, but does happen regularly to those seeking to fill lesser positions. Recruiters know that trying to fill 4,000 positions is a big job and that not all candidates will be suitable.

The timing of those Confirmation Hearings after the first wave will be uncertain as tradition requires the appointees to FIRST undergo a Top Secret background security check (many including “Yankee White” clearance checks allowing access to The President). With the “War on Terror” and the “War on Drugs” in full force, and with many e-mails still to read, the FBI is currently stretched to the limit. Security check completions will likely dictate schedules for the months after January.

Note: Any “fireworks” you may see in the televised Hearings are merely for public consumption since the conclusion as to almost all of the Hearings is a certainty since Republicans have enough votes on each Committee to “confirm” (that’s the verb) the nominee for office.

Committee on the Judiciary

Tuesday and Wednesday January 10-11 beginning each day at 9:30am: Sen. Jeff Sessions to be Attorney General of the United States

Trail signs: Early start to the day suggests LOTS of questions anticipated; 2-day Hearing. VERY controversial Nominee. Watch for fireworks and much media coverage at these Hearings

Committee on Homeland Security and Government Affairs

Tuesday January 10 beginning at 3:30pm: General John F. Kelly, USMC (Ret.), to be Secretary of Homeland Security

Trail Signs: Short Hearing. Afternoon start. A “walk in the park”, unless he unexpectedly says something off-script

Committee on Health, Education, Labor & Pensions

Wednesday January 11 beginning at 10am: Betsy DeVos, of Michigan, to be Secretary of Education

Trail signs: reasonable mid-morning start, but could go the entire day suggesting Democrats have some questions…meaning policy points they want to impress on Ms. DeVos and the public

Committee on Science and Transportation

Wednesday January 11 beginning at 10:15am: Elaine L. Chao

Trail signs: Late morning start; Former Secretary of Labor under George W. Bush (#43); married to Senate Majority Leader Mitch McConnell; first Asian female Cabinet Member in U.S. history; Harvard MBA. Done by lunch


THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at (866) 268-6206 (for DirectEmployers Association Members), or email Candee at candee@directemployers.org with your ideas.

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About the Author

John C. FoxJohn C. Fox, Esq. is President and Senior Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the four wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide.View all posts by John C. Fox »