OFCCP Week in Review: June 26, 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, Candee Chambers and Jennifer Polcer. In today’s edition they discuss:
- Current concerns raised by the proposed merger of the EEOC & OFCCP
- Department of Labor Secretary Alexander Acosta selects Wayne Palmer as his new Chief of Staff
- Senate Republicans released a “discussion draft” health care bill
Tuesday, June 20, 2017: Proposed Merger of EEOC & OFCCP Raises More Concerns
|Power to debar.
Could the administrative process for banning a company from government contracts become politicized at the EEOC?
|The OFCCP proactively audits government contractors for affirmative action and nondiscrimination compliance, has the power to initiate administrative actions that could result in contractor “debarment,” though that occurs rarely. OFCCP has never debarred a company which did not want to be debarred. If the contractor agrees to comply (create the AAP; pay the back pay, agree to permit the audit, etc), it will not and cannot be debarred.||The EEOC currently lacks the authority to cancel an employer’s government contracts or bar an employer from obtaining future contracts if it’s found to have discriminated against workers.|
|Different expertise of the DOL and EEOC attorneys. Per Patricia Shiu, the OFCCP’s director during the Obama administration:||The labor solicitor’s office is “extremely well-versed in all aspects of the OFCCP,” including historic protocols, policies, and procedures dealing with the handling of administrative complaints and debarment.||Although EEOC attorneys also deal with discrimination enforcement, that doesn’t mean they can assume the labor solicitor’s expertise and responsibilities easily.However, the EEOC is the lead federal discrimination law agency and has considerably more lawyers, discrimination law training and trial experience than the Solicitor’s Office at USDOL.|
|Different Conciliation Standards||The OFCCP must first try to settle, or conciliate, compliance issues that crop up during a contractor audit before an administrative complaint is filed. The agency must use “reasonable efforts” to conciliate.||Under a 2015 U.S. Supreme Court ruling, courts typically must defer to the commission’s pre-lawsuit conciliation efforts if the agency merely notified an employer of the claims against it and provided it with a chance to negotiate a resolution, and the parties failed to reach a settlement acceptable to the agency.|
Wednesday, June 21, 2017: Labor Secretary Acosta has Dubbed Wayne Palmer his new Chief of Staff
- Following Acosta, Palmer is the first major political hire at the Department of Labor (“DOL”).
- His considerable experience in Washington includes:
- A senior position at the Center for Presidential Transition.
- Chief of Staff to former Senator Rick Santorum.
- Most recently, a temporary political official in the Trump administration.
As Chief of Staff, Palmer will have significant influence within the DOL. His ability to oversee managerial operations, and facilitate the Secretary’s stakeholder outreach will allow him the opportunity to push policy and enable the DOL agenda.
Thursday, June 22, 2017: Senate Republicans Released a “Discussion Draft” Health Care Bill (142-page Senate bill)
It is largely intended to be a compromise bill between the ACA and the health care bill that House Republicans passed last month.
- It includes a cap on funding for Medicaid, one of the nation’s biggest entitlement programs.
- Like the House bill, it eliminates two central requirements of the ACA: that individuals provide proof of insurance and that companies with 50 or more employees provide health coverage for their workers.
- It does away with all ACA taxes except the so-called “Cadillac” tax on high-cost health plans.
- The Cadillac tax would be effective beginning in 2025 instead of 2020, as scheduled under current law.
- The bill would continue for two years to fund subsidies that help millions of Americans buy insurance through the ACA marketplaces.
Stay tuned – the bill is being fast-tracked with intentions to vote on the legislation next week, before the July Fourth recess.
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 Jennifer at email@example.com with your ideas.