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:

 

 

Thursday, June 14, 2018: EEOC Funding Bill Progressed

The Senate Committee on Appropriations approved $379.5 million for the EEOC in FY2019 as part of the Commerce, Justice, Science and Related Agencies Appropriations Bill. The budget includes a $15 million increase under a massive omnibus spending bill signed by President Trump in March.

The Bill highlights the need to address sexual harassment claims, backlog reduction, conciliation efforts and recommends that up to $29.5 million go towards State and Local Enforcement Assistance.

Up Next: The Bill now advances to the Senate floor for a full chamber vote. Stay tuned.

Note: The next fiscal year starts Oct. 1, 2018.

News We Are Watching: The final confirmation and nomination for two Commissioner seats as well as the General Counsel. Four Senate Republicans are suspending the Chamber’s consideration of President Trump’s re-nomination of Chai Feldblum (D) for a fresh five-year term on the Commission. They have expressed concerns over her history of championing gay rights, among other issues. The Senate’s Democratic minority won’t agree to a rapid vote on the other two Republican EEOC nominees unless Feldblum is in a packaged deal.
 

 

Friday, June 15, 2018: OFCCP Funding Bill Progressed

A House Appropriations subcommittee approved a measure that would trim Labor Department and National Labor Relations Board funding. The Bill would give the DOL $12.1 billion in discretionary appropriations, an $88.8 million decrease from the current funding level.

Included in the Bill for OFCCP is $99,476,000 for necessary expenses. This is down almost $4.2 million (or 4.135%) from OFCCP’s FY2018 budget. The U.S. DOL had requested $91.1 million for OFCCP for FY2019 to operate with 450 employees. Remember though, that after two rounds of buy-outs, the effort to downsize from 525 to 450 fell short. If the USDOL budget proposal for FY2019 were to pass (it will not; too low relative to the Hill), we would see a large Reduction-In-Force. However, since the Senate has driven OFCCP’s most recent budget, it is likely the Senate will again do so for the FY2019 budget. If so, and if the Senate were also to adopt that $4M reduced budget, it would translate in a loss of OFCCP Compliance Officer headcount of about another 40 COs (from the approximately 525 on roll at time of proposed budget to about 485 by the end of FY 2019, i.e., September 30, 2019). However, the Senate is likely to want to “let the air out of the tires” more slowly than either the House or The White House and will likely work hard to not take the OFCCP budget below the emotional threshold of $100M.

Significance: OFCCP compliance evaluations will likely continue to shrink in number, and the agency will struggle to hire quality new employees into a steadily shrinking workforce.

Noteworthy: The Bill includes a policy rider that would reverse the 2015 NLRB decision in Browning-Ferris Industries of California. Specifically, “None of the funds made available by the Act may be used to issue, enforce, or litigate any administrative directive, regulation, representation issue, or unfair labor practice proceeding, or any other administrative complaint, charge, claim, or proceeding based on the standard for determining whether entities are ‘‘joint employers’’ set forth by the National Labor Relations Board in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015).”

Joint-Employer Refresher: We broke it down in March, and with this rider we now see the issue sitting in three venues. Stay tuned as the saga unfolds on this hot topic.

  1. NLRB (Rule coming)
  2. Congress (budget rider)
  3. Court (DC Circuit took the case back)

Budget Refresher: We broke it down back in February.

FY2018 budget (last year) was $103,767,000 pursuant to the fourth Continuing Resolution in the last four years. It has been a bumpy and scary ride for the OFCCP.

  • The White House had proposed $88M (-16.5%). (May 2017)
  • The House had proposed $94.5M (-10.2%). (July 2017)
  • The Senate had proposed $103M (-1.4%). (September 2017)

Up Next: The Bill is likely to get enough Republican support to pass in the House. The Senate is working on its version of a labor spending measure.


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 jpolcer@directemployers.org with your ideas.

 

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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 »

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