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 WIR, we will cover:
- Personnel changes coming under the Trump Administration that are of significance to employment & civil rights matters
- EEOC issues its FY2016 Performance & Accountability Report (PAR), citing backpay collections down 10%
- Recommended reads: Comprehensive and detailed explanation discussing how to properly undertake compensation analyses; and an important and overlooked development involving the US Department of Labor’s solicitation of Applicant and Employee Complaints
- Coming EEOC changes will affect your EEO-1 report
Monday, November 16, 2016: Personnel Changes of Significance to Employment & Civil Rights Matters in the Coming Trump Administration So Far Favor First Term Reagan Appointees
Last week brought two pieces of important news which will affect the U.S. Department of Labor and the OFCCP, specifically:
First, Vice-President-Elect Pence (R-IND), the head of President-Elect Trump’s Transition Team, last week appointed Steve Hart (not the CBS journalist) to lead the Trump Transition Team at the U.S. Department of Labor. Mr. Hart is the Chairman of Williams & Jensen, a prominent lobbying firm in Washington D.C.), and held several appointed positions in the first Ronald Reagan presidential term. Mr. Hart’s primary role during the Reagan first term was vetting potential candidates for consideration for Presidential appointment to the federal courts. Mr. Hart was known to have a litmus paper test for potential judicial candidates, including whether they endorsed employment preferences based on race or gender (not a good answer). Mr. Hart is a lawyer by training (Georgetown), is very intelligent, and has a specialty in tax and ERISA matters. Mr. Hart’s appointment is a bad omen for OFCCP.
Second, President-Elect Trump announced his intention to submit the name of Alabama Senator Jeff Sessions to the United States Senate Judiciary Committee to obtain its Advice and Consent (colloquially called the “confirmation process”) to appoint Senator Sessions to be the next Attorney General of the United States. Senator Sessions’ biography confirms that he is a strong “law and order” proponent and has achieved much in his lifetime, first as an Eagle Scout, Army reservist, and then for 12 years as the US Attorney for the Southern District of Alabama (first term Reagan appointee) and then as the Attorney General for the State of Alabama, before running for the United States Senate in 1996 where he has served for the past 20 years as the junior Senator from Alabama (most recently elected without opposition to a fourth term). In another bad omen for OFCCP, Senator Sessions strongly opposes Affirmative Action and believes Executive Order 11246’s “Goals” are in fact unlawful “quotas.” Civil rights groups across the country immediately objected to Senator Sessions’ pending appointment before his colleagues on the Senate Judiciary Committee where Senator Sessions has been the third ranking Member of the Majority (Republican). Do not expect Senator Sessions’ Nomination Hearing to be “old home week,” however. Liberal Senators Leahy (D-VT), Schumer (D-NY), Feinstein (D-CA) and Franken (D-MN) all currently sit on the Judiciary Committee and are expected to return to the Committee on January 3, 2017 when the next United States Congress (the 115th Congress) is set to convene (for the two-year period 2017-2019). Expect some sharp questioning, and possibly “fireworks” (and certainly protesters and marchers) as Democrats seize on this nomination to try to publicly frame an immigration and civil rights agenda for the Trump Administration. Also, expect Senator Sessions and Republican Members of the Committee to rejoin the Democrat’s attack by detailing their perception of the lack of civil rights progress during the Obama Administration. OFCCP will almost undoubtedly come up in the questioning. Fasten your seat belts and prepare for turbulence.
Wednesday, November 16, 2016: EEOC Issued its FY2016 “Performance and Accountability Report” (PAR); EEOC Generally Very Happy with Itself but Backpay Collections Down Almost 10%
In sharp contrast to the OFCCP’s difficult enforcement and productivity results for Fiscal Year 2016 (which just closed September 30, 2016), the EEOC’s productivity was high during FY2016, other than the small dip in back pay collections.
Highlights Of The EEOC’s PAR:
- The EEOC’s Proudest Claim: The number of Charges resolved increased by 6.5% from 91,449 in FY2015 to 97,443 in FY2016.
Since the Commission received only 91,503 Charges in FY2016 (Federal/state/private sector/public sector), the Commission was able to reduce its backlog (which it now calls “Workload”) by 2,900 Charges (3.8%) from 76,408 to 73,508.- The EEOC’s weakest performance metric was in back pay collections which dropped about $45 million (almost 10%) to $482.1 million, The EEOC nonetheless trumpeted its $482 million collection number since it sounds inherently high, even if not in the context of history.
- The EEOC’s mediation program was particularly successful in FY2016 in resolving 76% of Charges (usually the “B” and “C” Charges) submitted to the Mediation Program. This is more than double the percentage of successful mediations in FY2015 and brought up the average of Charges successfully resolved via Mediation to 44% over combined over FY2015 & FY2016.
- The EEOC’s systemic discrimination Charge enforcement system has been a surprising success in a very short period of time. Trying to piggy-back on the OFCCP’s signature attacks on “systemic” discrimination (which The Commission describes as “where a discriminatory pattern, practice, or policy has a broad impact on an industry, company or geographic area”), the EEOC in recent years has created and staffed “Systemic Charge Units” in selected EEOC District Offices across the country. Eclipsing prior year systemic discrimination back pay collections, the Commission this year reported it resolved 273 systemic investigations and collected $20.5M in back pay in these systemic investigations (almost 3 times OFCCP’s total back pay collections for the same Fiscal Year). Of those 273 systemic discrimination investigations, The Commission also issued “reasonable cause” determinations in 113 of them (41%: compared to OFCCP’s 1-2% alleged violation rate) and successfully conciliated 71 of them.
Note 1: Missing from the PAR was discussion of the EEOC’s controversial litigation program which in recent years came under heavy criticism from employers and from Capitol Hill and then condemnation in the federal courts as The Commission lost several highly publicized cases. In some cases, The Commission was forced to pay the attorneys’ fees of the innocent companies which the federal courts found The Commission had improperly subjected to vitriolic yet baseless lawsuits. The EEOC remains defensive to this day about the mixed success of its litigation program during the Obama Administration and contends that its mission justified The Commission to try to “stretch the law” and not just “enforce the law.”
Week of November 12, 2016: Important Links to Blogs We Recommend You Read
- Cynthia Hackerott at Wolters Kluwer (CCH) published last week the most comprehensive and detailed explanation we have yet seen discussing how to properly undertake compensation analyses. Cynthia also discusses commonly misunderstood limits on compensation analyses which renders them legally useless. See Cynthia’s story in the Employment Law Daily blog.
- Our friend Cara Yates Crotty at the Constangy, Brooks, Smith & Prophete, LLP law firm also published a Blog alerting the country to an important and overlooked development involving the US Department of Labor’s solicitation of Applicant and Employee Complaints on a newly activated Labor Department website. See Cara’s story in the JD Supra Business Advisor blog.
Week of November 12, 2016: Coming EEOC Personnel Changes Will Affect the EEO-1 Report
President-Elect Trump will have the first opportunity in July 2017 to control the EEOC through his appointments of Republican Commissioners (assuming none of the Democrat Commissioners terminate before their current terms expire). The President has the power to identify a Chair from among the sitting Commissioners, so it is unclear whether the current Chair, Jenny Yang (DEM), will remain as Chair for the remaining 6 months of her term after President-Elect Trump assumes office. Pursuant to Title VII, no more than three Commissioners may be of the same political party. Here are the expiration dates of the current terms of the sitting Commissioners:
| Name | Term Expires |
|---|---|
| Jenny R. Yang, Chair (DEM) | 7/2017 (Opening Looming) |
| Chai R. Feldblum, Commissioner (DEM) | 7/2018 |
| Charlotte S. Burrows, Commissioner (DEM) | 7/2019 |
| Victoria A. Lipnic, Commissioner (REP) | 7/2020 |
| Constance S. Barker, Commissioner (REP) | 7/2016 (Opening looming)* |
*(Originally appointed by President George W. Bush to fill out an expiring 5-year term; President Obama re-nominated Ms. Barker for a second full 5-year term and then re-nominated her for a third term, but her nomination is currently on hold until re-confirmed, or the Senate adjourns in December without confirming her.)
As a result of this unique form of agency administration, employers which file EEO-1 Reports may have to wait until early Fall 2017 before (then) President Trump will have wrested back political control of the EEOC and will have had time to cause The Commission to withdraw the EEO-1 Report Component 2 (Summary Pay Data) reporting provision. It will take an act of courage and patience, however, for many HR managers to wait to see if the “new” EEOC pulls back Component 2 of the EEO-1 Report, and when. Remember, though, no Component 2 reporting will be due until March 31, 2018 AT THE EARLIEST, even if the EEOC somehow sticks with the Component 2 Reporting requirement. So, it looks like there is plenty of time to wait to see how this drama will play out.
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.
