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:
- Congress resumed work after its August Break
- DHS announced rescission of DACA Program resulting in 720,000 “Dreamer” work authorizations to expire and eventually not be renewed
- Eric Dreiband’s nomination hearing went off without fireworks
- Senate Appropriations Committee weighed in with USDOL and OFCCP budget, dividing Republicans on the “Administrative State”
- OFCCP merger proposal rejected
- Cornell survey for Section 503 study opened
Congress Returned from Its August Break and Resumed Work
|Monday, September 4, 2017|
|A full workload awaited the returning Congress, as hurricanes beat down on two coast lines:
The Trump White House had hoped to start September with Obamacare and the federal budget for FY2018 successfully behind it. Rather, The Congress returned with a full plate with none of the “big items” on its legislative agenda done, or even near done. Heavy sledding ahead is in the offing through the Winter.
DHS Announced Rescission of the “Deferred Action for Childhood Arrivals” (DACA) Program: 720,000 “Dreamer” Work Authorizations to Expire and Not Be Renewed Between Now and March 5, 2020–Including an Estimated Half Million Employees from the Fortune 25
|Tuesday, September 5, 2017|
|Please see our attached Blog explaining what DACA is, what the courts ruled, what lawsuits were threatened to bring things to a head last Tuesday, and what employers may do, may NOT do and should do in light of these fast-moving developments in Washington D.C. Read the below quick summary if you are a pro on DACA and then click on this link to be taken to John Fox’s Blog titled:
What Happened Last Week?
The Trump White House ordered Elaine Duke, Acting Secretary of DHS, to issue a September 5, 2017 “Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA)” and for Attorney General Sessions to announce it in a major Press Conference last Tuesday. The key points of the Trump Administration’s new position on DACA are:
Summary of Significant Dates:
Click here to see DHS’s new website (as of last Tuesday) devoted to the DACA work authorization program.
Eric Dreiband Nomination Hearing for Assistant Attorney General in Charge of the Civil Rights Division Went Off Without “Fireworks”
|Wednesday, September 6, 2017|
|Eric Dreiband, the Washington labor lawyer tapped to be the Trump administration’s top civil rights attorney offered assurances Wednesday that he is sensitive to voting rights and hate crimes, in the face of criticism of his record of defending large companies against discrimination claims.
Dreiband’s approach to civil rights law would surely differ from that of his Democratic predecessor, Vanita Gupta, a former ACLU attorney who oversaw the division as it pushed the boundaries of civil rights law, intervening in lawsuits on behalf of transgender people, prisoners and the homeless.
Dreiband’s supporters stress that he has experience on both sides of discrimination cases, giving him a well-rounded understanding of the law. As the top lawyer at the Equal Employment Opportunity Commission under President George W. Bush, Dreiband entered into class-action lawsuits on behalf of women and minorities, sometimes yielding major settlements.
The Senate Judiciary Committee has not yet set a date to vote on forwarding Mr. Dreiband’s nomination to the full Senate for confirmation. The full Senate confirmation vote will follow the Senate Judiciary Committee vote, but will not be scheduled, of course, until after the Senate Judiciary Committee has voted to confirm Mr. Dreiband.
It is now expected that Mr. Dreiband will win Senate confirmation and take his seat at the Justice Department within the next month, or so. (See the previous mention in OFCCP Week in Review: May 8, 2017)
Senate Appropriations Committee Weighed In with USDOL and OFCCP Budget Dividing Republicans on the “Administrative State”
|Thursday, September 7, 2017|
|The Senate Appropriations Committee has proposed only a 1.5% decrease in USDOL’s budget, as a whole, and only a proposed decrease to OFCCP’s budget of $1,875,000 (1.78%) from OFCCP’s last year’s $105,275,000 budget to arrive at a proposed $103,400,000 FY2018 budget for OFCCP (very slightly differentially worse than the USDOL decrease as a whole). While generally good news for OFCCP and giving it some hope that it will not shrink to below 500 employees in coming months, this still translates, in practice, to a loss of another approximately 30 Compliance Officers if enacted (and given the inescapable reality that OFCCP’s budgeted costs are expected to rise another approximately $1.4M, due to increased pension contributions). And, of course, The White House wanted OFCCP to shrink over 16% to $88M and The House Appropriations Committee wanted it to shrink to $94M for FY2018. So, all three parties now need to get together to hash out their differences and agree upon a Final budget for FY2018 (which begins October 1).
Since the Congress has only been able to pass one budget in the last 10 years by October 1, the beginning of the federal government’s Fiscal Year, it is doubtful this year will be any different. Also, there are rumors coming out of The White House this past week that the President is agreeable to NOT shutting the down the federal government on October 1st over the continuing budget disputes between both parties and between Republicans themselves, but will rather agree to a Continuing Resolution through early December in exchange for a commitment to fund the building of The Wall on our border with Mexico.
The Senate’s budget proposal also weighed in on The White House’s proposal to merge the OFCCP into the EEOC and noted:
The Senate Appropriation Committee’s instruction to OFCCP to report its infrastructure (i.e. office and personnel inventory) to The Committee is a signal the Committee intends to oversee OFCCP’s efforts to redesign itself given the new realities of the agency’s shrunken operating budget. The $15M difference between the Senate Appropriations Committee’s proposed budget for OFCCP and The White House proposed budget, and the almost $10M difference between the Senate Appropriations Committee’s proposed budget and The House’s proposed budget also signals a major dispute within the Republican Party about the fate of the “administrative state” President Trump believes he was elected to substantially reduce (15-20%) in size. If the prior two years are predictive of this coming FY2018 budget, no agreement will be achieved until the Spring of 2018. If so, a Continuing Resolution will ensue setting the FY2018 budget, in the interim until an agreement is reached, at the budget level of the previous budget year (which in OFCCP’s case is a fat $105,275,000).
The White House and House Republicans, however, appear to be in no mood to allow the status quo to continue. Accordingly, watch for political fireworks and many political stunts on all sides over the upcoming 6-8 months, or until a budget is finalized. However, Secretary Acosta may have already outmaneuvered the big government Republicans in The Senate by authorizing both financial incentives for voluntary resignations (known as “VSIPs”) and early voluntary retirements (known as “VERAs”). (See previous OFCCP Week in Review: August 28, 2017 discussing OFCCP’s buyouts)
OFCCP will process resignation requests on a first filed, first paid and terminated basis. Requests were due to OFCCP management by September 1. Accordingly, those OFCCP employees wishing to terminate now and receive incentive pay to do so are now known to senior OFCCP managers. Those employees will in fact have exited OFCCP by the end of this week…by Friday September 15. The voluntary early retirement requests are due this coming Friday September 15. OFCCP’s union reported that it had determined that 50-75 OFCCP personnel might be eligible for the “buyouts.” If OFCCP fully subscribes to the “buyouts,” OFCCP will need budget more closely aligned with The White House’s original $88M budget request to the Congress rather than either The House’s or the Senate Appropriations Committee’s proposed budgets. It will probably take until late September 2017 to know how many OFCCP employees are leaving/have left due to the buyouts and what the remaining headcounts are, and in which offices.
OFCCP Merger Proposal Rejected
|Thursday, September 7, 2017|
|The Senate Appropriations Committee rejected the Trump administration’s proposal to merge the EEOC and the Labor Department’s contractor compliance office. A merger won’t occur without Senate support, as a number of legislative and regulatory actions would be required to merge the agencies and to reconcile their different enforcement structures and approaches.
What’s next? Cost Cutting and Progress Reports
The Senate appropriations bill, which would fund the OFCCP at about $103.5 million for fiscal year 2018, urges the agency to “find efficiencies and cost savings, including the consolidation of offices, within its current budget structure.” The agency is currently funded at a little over $105 million.
Additionally, the agency must report to the committee within 180 days of enactment of the bill with a plan to “consolidate and right-size the agency,” the Senate bill says.
House appropriators also are requiring the OFCCP to report on the status of efforts to implement recommendations given to the agency last fall by the Government Accountability Office. That report would be due within 160 days of enactment of a funding bill.
The GAO analyzed the agency’s audits since 2010 and concluded that it needs to revise its contractor selection process to target employers at the “greatest risk” of not complying with their affirmative action and equal employment opportunity obligations.
For additional information and insight, visit: http://bit.ly/2f0eRvM.
Cornell Survey Opened for 503 Study–Get Your HRCI and Free Classes
|Thursday, September 7, 2017|
|What Works? Implementing Section 503
Survey Link: http://www.yti.cornell.edu/survey/NILG
Who should complete this survey?
Representatives of organizations that are federal contractors, specifically people who know about their organization’s efforts to implement the new regulations for Section 503 of the Rehabilitation Act.
What is asked in this survey?
Participants will be asked to anonymously provide some information about their organization.
This information will be compiled into an aggregated report, and organization names or individual information will NOT be shared.
When does this survey take place?
The survey will be open from September 7th to 29th, 2017. It should take approximately 15 minutes or less complete the survey.
Why should I participate?
The results will inform the design of tools, resources, and other assistance to support contractors in complying with Section 503.
Participants will receive access to the following products:
At the end of the survey, you can provide your name and email address if you wish to receive access to the online courses and a report of this study’s findings. Your name and email will not be linked to your survey responses.
More Information: The survey is voluntary and you may skip most questions if you do not want to answer. A few questions do require an answer so that we can make the survey more relevant to you. Your responses will never be linked to your name and email address (if you choose to provide them). Your responses will be anonymous, and any reports or products that are developed from the survey findings will not identify individuals or their organizations.
We do not anticipate any risks to you participating in this study other than those encountered in day-to-day life. There is no direct benefit to you or your organization. If you have questions: Sarah von Schrader, the researcher conducting this study, can be reached at email@example.com or 1-607-254-8088. If you have any questions or concerns regarding your rights as a subject in this study, you may contact the Cornell Institutional Review Board (IRB) at 1-607-255-5138 or access their website at http://www.irb.cornell.edu. You may also report your concerns or complaints anonymously through Ethicspoint (www.hotline.cornell.edu) or by calling toll free at 1-866-293-3077. Ethicspoint is an independent organization that serves as a liaison between Cornell University and the person bringing the complaint so that anonymity can be ensured.
To learn more, contact Sarah von Schrader at firstname.lastname@example.org.
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.
John C. Fox, Esq. is President and 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 six 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. Full Bio »