OFCCP Week in Review: February 6, 2017
The 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. In today’s edition, we will cover:
- OMB approves OFCCP’s old Section 503 Self-Identification Form for continued use without change
- Victoria Lipnic appointed as Chair of EEOC
- White House Press Office indicates Trump Administration will leave Obama LGBTQ Executive Order Intact
- Andrew Puzder’s Senate confirmation hearing delayed indefinitely
- How Judge Neil Gorsuch’s Ascension to U.S. Supreme Court Will Change Administrative Law
- Full Senate Set To Vote on Senator Sessions’ nomination to be Attorney General: What It Means to Civil Rights Law
- End of the “Blacklisting Rule” now goes to Senate for a final vote
Monday, January 23, 2017: OMB Approved OFCCP’S Old Section 503 Self-Identification Form for Continued Use Without Change
Pursuant to the Paperwork Reduction Act, the Office of Management & Budget (“OMB”) must review and approve all paperwork federal executive agencies (like OFCCP) send to 10 or more members of the public or require 10 or more companies in its regulated community to use (like Government contractors subject to one or more of the three “statutes” OFCCP enforces). OMB usually authorizes the agency to continue to use the requested paperwork for three years before again reviewing and re-authorizing the agency to continue to use it and to continue to impose cost and time impacts on the regulated community through the requested paperwork. It is hard to believe that three years have now already gone by since OMB first approved for use on March 24, 2014 OFCCP’s mandatory “self-identification form” (known technically as form CC-305) to invite job-seekers, applicants and employees with disabilities to self-identify. Here is a link to the Employer Assistance and Resource Network report of OMB’s action: http://www.paproviders.org/archives/Pages/MR_Archive/OMB_Form_Approved_022414.pdf. You may find the newly approved form (making no changes to the form Government contractors have used for the past three years) here.
Tuesday, January 25, 2017: President Trump Appointed Victoria Lipnic to Chair the EEOC
Here is a link to the EEOC’s Press Release making the announcement: https://www1.eeoc.gov/eeoc/newsroom/release/1-25-17a.cfm. This was as expected, as we have been reporting, since the President has the right to appoint the Chair of the EEOC and Ms. Lipnic is the only Republican currently on the Commission. Change will come slowly at the EEOC since there is one vacancy on the five person Commission and three Democrats. As a result, The Trump Administration cannot currently control the Commission or set its direction. That will change, however, between now and sometime shortly after July 1, 2017 at which time President Trump will presumably have appointed someone he trusts to fill the vacant position and outgoing Chair Jenny Yang’s term will have expired allowing President Trump to thereafter appoint a third Member of the Commission then giving him control of it.
Tuesday, January 30, 2017: White House Press Office Written Statement Says Trump Will Leave Intact Obama LGBT Executive Order
Amid White House leaks that originally reported The White House was drafting an Executive Order to withdraw former President Obama’s Executive Order 13672 which Obama had signed into law on July 21, 2014, the White House strongly and categorically dismissed the suggestion that President Trump favored a roll back of LGBT rights. President Obama’s 2014 EO recognized legal protections for Lesbian, Gay and Transgender workers and citizens. The Trump White House Press Office published the following statement reiterating President Trump’s campaign statements that he favored both gay rights and “had no problems with” gay marriage to put the rumor to rest of an impending Executive Order to roll back such rights. You may read the full text here of the White House’s statements or you may read the key content as follows:
“President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community. President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election. The President is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression. The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump.”
Having briefly covered the White House as a news reporter and having worked with the White House for four years as a political appointee at OFCCP, the trail signs left from the two differing reports and the Press Office’s written refutation of the early leaks strongly suggests a deep rift had occurred among key advisors to the President. The President then decided to quickly end the debate in one fell stroke though the simple written statement his Press Office released. This statement also signals that President Trump is willing to stand up to conservative Republicans, evangelicals, and the Catholic and Baptist Churches on issues about which he feels strongly. Nonetheless, there are powerful Democrat and Republican political forces on the other side of the LGBTQ issue as ENDA (the Employment Non-Discrimination Act) has failed to pass the House and Senate 41 times in a row over the last 42 years (there was one year it was not introduced), including during terms when Democrats had control of the House, Senate and White House all at the same time. Whether President Trump can now combine his trademark stubbornness with his prowess for deal making to convince the House and Senate to follow him and enact ENDA will be a fascinating study in the collision of politics, power, deal making and religion.
Tuesday, January 31, 2017: Senate H.E.L.P. Committee Delayed Mr. Puzder’s Confirmation Hearing, Indefinitely
The Senate Health, Education, Labor and Pensions Committee (H.E.L.P.) delayed its confirmation Hearing for the fourth time after Ranking Member Patty Murray (D-WA) complained that Secretary of Labor nominee Andrew Puzder had not yet turned in all of his financial “paperwork.” The HELP Committee has stated it will wait to reschedule Mr. Puzder’s Confirmation Hearing until the Office of Government Ethics receives and submits to the Committee all the usual conflicts of interest paperwork (which in Mr. Puzder’s case is apparently voluminous because of his substantial business ownerships). Four re-sets and an indefinite delay of a confirmation hearing is unprecedented in modern history for cabinet nominees and is definitely a significant event.
In unrelated, but highly politically relevant actions, two moderate Republican Senators (Lisa Murkowski of Alaska and Susan Collins of Maine) on Wednesday February 1, 2017 stated they might break ranks with the Republican leadership and vote against President Trump’s nominee, billionaire Betsy DeVos, to be Secretary of the U.S. Department of Education. Republicans control the Senate by a slim majority (see below story concerning the “Beginning of the End of the Blacklisting Rule”) and can afford to lose only three votes on the Senate floor. The Murkowski/Collins announced defections from Republican voting ranks was the opening bell signaling that intense lobbying is indeed underway on Capitol Hill to defeat several of the more controversial of the President’s nominees, including DeVos and Puzder. It is entirely possible, too, that Mr. Puzder will simply choose to “take his ball and go home” fed up with the politics of Washington and feeling he could do more on the outside through his prolific writings on the current poor state he perceives of Labor policies in the United States. What this continued delay in the seating of a new Secretary of Labor means for the Labor Department is that the Department is having a slow transition to the Trump Presidency. Indeed, most of the former Obama Administration policies and operations day-in and day-out continue as before without the Trump influence. “Business as usual.”
Tuesday, January 31, 2017: Trump Nominated Conservative 10th Circuit Judge Neil Gorsuch to the U.S. Supreme Court_Fist Fight to Follow
While Democrats and political commentators in the press complained that President Trump was “changing the channel” so quickly in his blitz of daily new Executive Orders and policy initiatives, The President nominated conservative and distinguished 10TH Circuit Judge Neil Gorsuch (49 years of age) to sit on the Supreme Court of the United States (“SCOTUS”). If confirmed, Judge Gorsuch would fill the seat of former SCOTUS Justice Antonin Scalia who died in office last year. Judge Gorsuch has sat on the Tenth Circuit bench for 10 years (since 2006). (The United States Court of Appeals for the Tenth Circuit covers the western states of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming). Judge Gorsuch is an ivy-leaguer who graduated from Columbia University, the Harvard Law School class of 1991 (where he was a classmate of Barack Obama), went on to a prestigious Scholarship to attend Oxford after his legal education, and then clerked on the SCOTUS for both former Justice Byron White and then currently sitting Justice Anthony Kennedy. Like the Tenth Circuit Court generally, Judge Gorsuch is known as a reliably employer-friendly judge. Nonetheless, Judge Gorsuch has also ruled in favor of two employees in retaliation cases, one pregnancy discrimination case and one political bias case (state employee). Judge Gorsuch’s two most important case decisions have come in the Administrative Law arena and in interpreting the federal Religious Freedom Restoration Act in the famous “Hobby Lobby” case which eventually went to the U.S. Supreme Court. Burwell (Secretary of HHS) v. Hobby Lobby Stores, Inc. , 573 U.S. ___ (2014). The U.S. Supreme Court affirmed Judge Gorsuch’s concurring opinion in favor of Hobby Lobby. (Hobby Lobby upheld a business owner’s religious objection to pay for workers’ contraception costs the Affordable Care Act (i.e. Obamacare) requires employers to pay.
If confirmed to a seat on the SCOTUS, however, Judge Gorsuch could have the greatest impact of federal administrative law to reign in the era of federal executive agency dominance of the Congress. (The Congress passes about 100 statutes per year into law while the federal Executive Branch agencies issue an average 4,000 final Rules (i.e. regulations) per year). Indeed, Judge Gorsuch appears to have come to the attention of the Trump Administration because of his lead opinion in Gutierrez-Brizuela v. Lynch , 834 F. 3d 1142 (August 2016). Even The Washington Post took notice of Judge Gorsuch’s concurring decision and the day after the Court reported the decision The Post ran an article specifically about Judge Gorsuch’s opinion and the battle-on for Chevron deference….a key concept underlying the work of almost every Washington Post subscriber. The Washington Post instantly understood that the legal battle of our decade and the threat to Washington’s power was now front and center. This very recent case decision involves head-on the very important (although obscure to even lawyers unfamiliar with Administrative Law) legal issue of so-called “Chevron deference.” Just prior to his death, Justice Scalia wrote in an important USDOL case before the SCOTUS that he was hopeful to bring on a case finally challenging “Chevron deference” to administrative regulations and overturning the Chevron case holding. Judge Gorsuch may well be the torchbearer to carry that flame forward. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc , 467 U.S. 837 (1984) established the Administrative Law principle that courts interpreting a Congressional statute could not overrule an administrative agency interpretation of the statute it was charged to enforce if the agency’s interpretation, embodied in a Rule (i.e. regulation) was not plainly in error. In other words, an agency could enlarge or even ignore Congressional direction in a statute so long as there was some plausible basis for the agency’s position and interpretation, however unlikely and far-fetched that interpretation might be. Rather, the Courts had to “defer” to the agency’s even head-scratching and hard to imagine interpretation and the Court could not substitute it’s reading of the statute for that of the agency’s interpretation unless the agency was just plainly wrong. Huge power shift to the federal agencies and the President. Then along came the case of National Cable & Telecommunications Assn. v. Brand X Internet Services , 545 U.S. 967 (2005) which shocked to their core those who advocate limited government. The SCOTUS held in Brand X that a federal agency could even overrule a SCOTUS’ decision interpreting a statute differently than the agency IF the agency merely issued a final Rule after the SCOTUS’ opinion interpreting the statute at issue differently than the SCOITUS had previously interpreted the statute. WHOA! Gasoline on the fire for small government advocates. The SCOTUS says the statute means X. The agency then issues a Final Rule that the statute means anti-X and the SCOTUS cannot over-rule the agency unless there is no possible way to read the statute to mean anti-X? The Obama Administration, interested in expanding the reach of the federal government, then came along and took Brand X and ran with it, causing numerous judicial collisions with companies over the last 8 years upset that federal regulators were making our laws and not the federal Legislature. Then, along came Judge Gorsuch last year during the Presidential political campaign in the Gutierrez case. Here is Judge Gorsuch in his own plain (no pun intended) words commenting on how he feels about Chevron deference and Brand X: and how he understands the role of the federal Executive Branch of government.
“Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design….
In enlightenment theory and hard won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers. In the avowedly political legislature, the framers endowed the people’s representatives with the authority to prescribe new rules of general applicability prospectively. In the executive, they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people. And in the judiciary, they charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes. This allocation of different sorts of power to different sorts of decision makers was no accident…. [T]o resolve cases and controversies over past events calls for neutral decision makers who will apply the law as it is, not as they wish it to be.
Even more importantly, the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment—and raising along the way, too, grave due process (fair notice) and equal protection problems…It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers….
Yet this deliberate design, this separation of functions aimed to ensure a neutral decision maker for the people’s disputes, faces more than a little pressure from Brand X. Under Brand X‘s terms, after all, courts are required to overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies. [case omitted] By Brand X‘s own telling, this means a judicial declaration of the law’s meaning in a case or controversy before it is not ‘authoritative,’ … but is instead subject to revision by a politically accountable branch of government….
Quite literally then, after this court declared the statutes’ meaning and issued a final decision, an executive agency was permitted to (and did) tell us to reverse our decision like some sort of super court of appeals. If that doesn’t qualify as an unconstitutional revision of a judicial declaration of the law by a political branch, I confess I begin to wonder whether we’ve forgotten what might.”
Chevron Deference is one of the most important legal issues of our day and addresses one of the defining core differences between Democrats and Republicans harking back to the 1790s to the days of Jefferson (small federal government states’ rights advocate and leader of the Anti-Federalists movement) and Hamilton (strong central government advocate and leader of the Federalists movement). Watch for Democrats to try to stall Judge Gorsuch’s nomination so that this issue can hopefully be decided in his absence (and thus not cycle through the court again for another 10 years or so). The ultimate problem, though, for big government advocates is that Judge Gorsuch is only 49 years old and Ruth Bader Ginsburg (a big government advocate) is almost 84 years old (and will be 88 before President Trump’s 4 year term of office is complete). So, even apart from attempting to delay Judge Gorsuch’s arrival at the SCOTUS, the Democrats will dig in for a ferocious toe-to-toe dirt fight to try to keep Judge Gorsuch off the court since he represents a bigger threat to big government advocates than does even President Trump.
Wednesday, February 1, 2017: Senate Judiciary Committee Sends Senator Sessions Nomination to be Attorney General to Senate for Full Vote
Senate Majority Leader Mitch McConnell has not yet scheduled the date of the Senate vote to confirm Senator Jeff Sessions (R-AL) to be the next Attorney General following the Senate Judiciary Committee’s February 1 vote (along party lines) to send Senator Session’s name to the full Senate for a Confirmation vote. While the median time from Committee approval to full Senate floor vote confirming the nominee has historically been one day, Senator McConnell chose to proceed cautiously as to Senator Sessions given the continuing unrest and public discourse throughout the country about President Trump’s Executive Order banning travel into the United States from seven Middle Eastern countries with known terrorist populations and reportedly poor internal terrorist vetting policies and procedures. The Justice Department has a central role in immigration policy and enforcement and is already in federal court litigation over the travel ban. As of press time, Democrats in the U.S. Senate have been very successful in delaying Committee and floor votes to advance into office Trump nominees subject to the “Advise and Consent” of the Senate. At press time, the Senate had confirmed only six Cabinet nominees [Mattis (98-1); Haley (96-4); Chao (93-6); Kelly (88-11); Pompeo (66-32) and Tillerson (56-43), each with a shrinking margin of success.].While it seems like it has been longer, the President has been in office slightly more than only two weeks, however. Nonetheless, six Senate confirmations in two weeks is a far cry from the “six or seven” Senator McConnell hoped to have the full Senate confirm on Inauguration Day. Moreover, this is the slowest start in seating Cabinet nominees in modern history and foreshadows probably another two months of head-knocking on Capitol Hill over Trump Administration nominees subject to “Advice and Consent.”
Thursday, February 2, 2017: The Beginning of the End of the “Blacklisting Rule” Began with a House Vote to End It; Now Goes to the Senate for a Vote
The Final Rule in question is technically known as the “Fair Pay and Safe Workplaces” Rule, although federal contractors pejoratively have called it the “Blacklisting Rule” even before the FAR Council (i.e. U.S. Department of Defense, General Services Administration and the National Aeronautical and Space Administration) published it’s Rule in Final form August 25, 2016, along with U.S. Department of Labor “Guidance” (see August 29, 2016 WIR). The FAR Council and the USDOL drafted their Final Rule and Guidance, respectively, pursuant to former President Obama’s direction to do so contained in his July 31, 2014 Executive Order 13673. The Executive Order, Final Rule and Guidance became the number one legislative target for the business lobby to defeat last year so it comes as no surprise the House has now passed—almost as the first order of substantive business in the new Congress– along party lines (236-187) its half of a Joint Resolution (disapproving this highly controversial Final Rule). Click here for a link to the Congress.gov report of the House vote. Click here for a copy of the text of H.J. Res 37 as The House passed it to forward to The Senate for a vote. Click here for the House Education and The Workforce Committee Press Release slamming the Fair Pay and Safe Workplaces Final Rule led by a stinging statement from Committee Chair Virginia Foxx (R-NC).
The measure now goes to the Senate for a vote, which was not yet scheduled at press time. A simple majority vote would then send the measure forward to President Trump to sign into law repealing the FAR Council Final Rule. Because Republicans now control the Senate 52-46 (with two independents who caucus with the Democrats), supporters of the Final Rule would have to cause three Republicans to vote against the Joint Resolution (NOTE: that math works out once you recall that the Vice President votes in case of a tie) AND hold all Democrats in opposition to the measure (even though many Democrat Senators expressed their discomfort about the Final Rule to former President Obama). Withdrawal of the FPSW Rule thus seems momentarily inevitable. President Trump is expected to sign the measure into law if and when it reaches his desk and to also issue an Executive Order repealing and withdrawing former President Obama’s Executive Order 13673. If the President does sign the measure into law, its immediate effect would be two-fold:
- to immediately dismiss and end the “Paycheck Transparency” and anti-arbitration components of the Final Rule, along with all other parts of the Fair Pay and Safe Workplaces Final Rule; and
- to cause the U.S. Department of Justice to withdraw its defense of the litigation it is currently defending and affirmatively ask the Court to dismiss the pending case in Texas (as now moot) currently challenging the Final Rule and Executive Order 13673 on several different legal grounds. NOTE: On October 24, 2016, an Obama appointed federal District Court Judge in the federal District Court in Beaumont, Texas enjoined (see October 31, 2016 WIR) all parts of the FAR Council Final Rule OTHER THAN the “Paycheck Transparency” and anti-arbitration components which components went into legal effect January 1, 2017. The federal District Court would then undoubtedly dismiss the lawsuit to bring a final end to all aspects of the so-called “Blacklisting Rule” (including the “Paycheck Transparency and anti-arbitration components: see #1 above)
Federal Contractors which complied with the January 1, 2017 deadline to initiate the Paycheck Transparency and anti-arbitration components of the Final Rule will have to consider whether to cease doing so after the President signs H.J.Res 37 into law, or whether to continue to comply given the changes the company has already accomplished to its pay stubs in compliance with the Paycheck Transparency Final Rule and the changes it may have made as to its arbitration clauses, if any.
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 firstname.lastname@example.org with your ideas.