Season 2 • Episode 4
Curveballs have been thrown left and right during 2020, but many transformations remain for the OFCCP, and subsequently federal contractors, as a new administration transitions into power. During this podcast, I sat down with employment law expert John C. Fox of Fox, Wang & Morgan to discuss what contractors need to be mindful of in 2021 and the regulatory agenda the Biden Administration is set to enact in its first term. This is an episode you don’t want to miss as it’s filled with intricate details of the White House transition of power and the emphasis that will soon be placed on pay inequality, nondiscrimination protections for individuals with disabilities, and much more!
About DE Talk
For DirectEmployers, it’s all about valuable connections and meaningful conversations. This monthly podcast features honest and open dialogue between powerhouse industry experts on a variety of HR topics ranging from OFCCP compliance advice to emerging recruitment marketing trends, diversity and inclusion initiatives, and insightful solutions that help infuse new life into your HR strategies.
Hosted by Candee Chambers, Executive Director of DirectEmployers Association.
Episode Guest
John C. Fox
President and Partner at Fox, Wang & Morgan P.C.
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.
Episode Transcript
Candee Chambers:
Welcome to the DE Talk Podcast! Tune in for dialogue between HR experts to amp up your HR strategies. Don’t worry. We’ll mix in a few laughs, as we know you need it.
Welcome. I’m Candee Chambers, and you’re listening to another episode of the DE Talk Podcast. I think we can all agree on one thing. 2020 will be known as the lost year for so many businesses. As the new year rang in this past January, HR professionals looked forward to new strategic plans and initiatives. However, the landscape quickly shifted as these plans took a back seat to the global pandemic that erupted in March of 2020. Overnight, employers faced mass layoffs, furloughs, and much uncertainty as they clamored to regain their footing.
Just as the pandemic was starting to wane, although it’s now picking back up, protests and riots broke out regarding racial injustices and discrimination that continues to ebb and flow in society. Now that we’re nearing the end of 2020, diversity and inclusion planning remain a high priority and many wonder how to plan for what’s next in 2021, what changes are coming on the heels of the election, and what that means for them as federal contractors. Luckily, this topic is one that I am all too familiar with, and I’m happy to have employment law expert, John Fox of Fox, Wang, & Morgan join me today to discuss all of these things and more.
Welcome again to the DE Talk Podcast, John! We always have a lot of fun doing this. I’m going to ask you lots of questions. But we love having you here.
John Fox:
Well, I’m glad to be here. This is terrific.
Candee Chambers:
Well, good. I’m going to just start right off. Drawing on your experience as a political appointee and the time that you spent in Washington, DC, I’d like to actually have you maybe explain how the transition will actually work and what the various issues of the day are that will affect Joe Biden’s ability to get things accomplished and, finally, what he is actually planning to do. Let me preface that comment with one very important piece. Here we are on November 12th, nine days after the election, and various news media are saying president-elect while others are saying, “Not so fast, not so fast.”
We still have several states that are being sued by the Trump campaign and various issues with the legal announcement of former Vice President Biden as the president-elect. So for all intents and purposes, since we don’t really have any true answers right now, let’s assume moving forward that Joe Biden will be the next president of the United States. If that does change, then we’ll do redo another podcast. What do you think?
John Fox:
Okay. Well, this is a very exciting time for everybody in Washington, except for those who may be on the losing end and are packing their bags. But every presidential candidate has a transition team. They identified the Biden team this week, in fact, led by Ted Kaufman, a former senator from Delaware. He actually replaced Joe Biden when Joe Biden left to become the vice president under Obama.
Candee Chambers:
Oh, his seat, okay.
John Fox:
Yeah, he took over. But he’s been a longtime Biden aide and confidant going back 40+ years. The main job of the transition teams is to pick the approximately 4,000 political appointees who will eventually run the Biden Administration, if they get into office. So they are acting like an HR and recruitment firm that just pops up and then it disappears almost instantly, as quickly as it arrived. It should be gone by the end of February, maybe earlier. But important to this whole discussion is that there are about 1,200 of what I’ll call high-level appointees that will require the advice and consent of the Senate.
So the president does not have unilateral authority to just jam in his managers. He’s got to go to the Senate and get their advice, their consent. They have to have a committee hearing. It has to pass the committee. It has to go to the floor of the Senate and be voted on by the Senate. And then that person takes his or her seat in the government. Usually too, about 20%, it varies every administration, of course, end up moving from the transition team for the agency that they are responsible to be examining. They move into that agency and become the undersecretary or become one of the sub-component agency managers running some piece of the federal agency that they’re managing.
But here’s what Article II, Section 2, Clause 2 of the Constitution says that really puts a lot of power into the Senate and thus makes this question of who owns the Senate very important because 1,200 of these high-level guys have to go through the Senate. The president has the power to, “nominate and by and with the advice and consent of the Senate,” as Article II goes, “they may appoint all officers of the United States, but the Congress may, by law, that it will pass, vest the appointment,” the clause goes on to say, “of such inferior officers,” you just love that old English.
Candee Chambers:
Wouldn’t you love to say, “I just got promoted to be an inferior officer.”
John Fox:
Yeah. I’m taking this high-level post as an inferior officer in the federal government. I’m so happy. But not all of those 4,000 appointees, therefore, go through advice and consent. The Congress exempts the vast majority of them, by law, from having to go through the advice and consent process. So about 1,200 is usually what ends up getting through the Senate. But think about the amount of time that takes.
Candee Chambers:
Well, there’s still some that are waiting for approval from the Trump Administration.
John Fox:
About half of them, actually.
Candee Chambers:
Yeah, yeah.
John Fox:
In the Clinton Administration, which is the fastest transition team in the history of the world and it was during a time where Republicans and Democrats were actually talking to each other and cooperating, they had close to 100% of their people in office in their seats within a month. But certainly by the end of the second month, everybody was in place. As to OFCCP, everybody will recall that Shirley Wilcher, the OFCCP-
Candee Chambers:
Happy Valentine’s Day.
John Fox:
… director in the Clinton Administration came in February 14th, three weeks after the president swore in. I mean that’s remarkable.
Candee Chambers:
Yeah. It really is.
John Fox:
That made her, by the way, the longest-serving political appointee-
Candee Chambers:
Ever.
John Fox:
Because she also stayed to the very last day until the Bush Administration took over eight years later.
Candee Chambers:
Wow.
John Fox:
But there’s a different process that ensues every time there’s a transition of power like this. The secondary job of the transition team is to meet with the outgoing administration officials and get up to speed on everything that’s going on in the agency, so the new-
Candee Chambers:
You really think that’s going to happen this year.
John Fox:
Not going to happen in this transition. This is going to be very bitter. By statute, the transition team is going to get certain kinds of written materials, but I doubt that in most of the agencies, the Trump guys are just not going to let the Biden transition team even come into the building.
Candee Chambers:
Well, I heard literally a couple of days ago that Joe Biden has said, and he’s assuming the presidency, but he has said that they can remove trespassers. That was the word he used, trespassers from the White House. So that would be an interesting addition.
John Fox:
Well, that’s going to question about whether President Trump will concede and leave.
Candee Chambers:
Right. Although I’ve also heard some of his team say that he will leave appropriately. So that’s going to be interesting to see.
John Fox:
You’ll see differences in approach by agency. For example, the Trump guys will cooperate at DOD, Department of Homeland Security, all the security agencies. Here’s the Biden/Harris transition team, and it’s really a shock, frankly, because it’s the old Obama team. It’s an Obama reunion. What has happened here is that despite the fact that this is the closest election in history, the Biden/Harris team is proceeding as though they have won a major victory and are going to go very, very far left.
This is the same mistake I would suggest to you that the Trump Administration made. They had a very, very, very narrow victory and yet they saw that as some kind of a mandate and took their policy very, very, very conservative. But when you have a very modest victory, you have to move to the middle. You saw the House of Representatives move tremendously to the middle. The Senate is likely to continue to be controlled, and probably heavily as we’ll see, by Republicans. So there’s not a real opportunity to make major change. If you don’t have a mandate, you don’t have a mandate for change.
The Labor Department transition team will look at not just the Labor Department, but also the EEOC and also the NLRB, along with some other federal agencies, most importantly. But let me give you a sense of who some of these people are. I know you know several of them. So it’s going to be led by Chris Lu.
Candee Chambers:
It’s interesting. Yeah. I actually have met Chris. Wasn’t he the deputy secretary to Tom Perez, right?
John Fox:
Correct. The secretary of labor during the Obama Administration, the second half.
Candee Chambers:
Right, yeah. Interesting that he was with FiscalNote and I just literally talked with someone from FiscalNote last week, which is kind of interesting. But I’m curious, John, it says so many of these people are volunteers. What do they do to make a living? I don’t think they’re getting-
John Fox:
Well, they’ll have their regular day jobs, but what they’re doing is-
Candee Chambers:
Oh, they will. Okay.
John Fox:
… they’re volunteering their time. 100% of the transition team is volunteer.
Candee Chambers:
Okay. Okay.
John Fox:
There may be some people from the campaign that are paid to be the managers, but these are all people that are volunteering their time because they’re involved in the party. They’re involved in the issues.
Candee Chambers:
Didn’t you tell me that Chris was a classmate of Barack Obama’s in law school or something?
John Fox:
Yeah. They went to law school together.
Candee Chambers:
Okay. Interesting.
John Fox:
He became the chief of staff for the then new Senator Obama.
Candee Chambers:
Okay, okay.
John Fox:
So they go way back.
Candee Chambers:
So I wonder if he’s going to lobby for the secretary of labor position?
John Fox:
Well, he’s in some tough competition because every major union boss is lining up support.
Candee Chambers:
To take that.
John Fox:
Bernie Sanders thinks that this is the job that he wants. Of course, having brought a lot of voters to the Democratic Party, he’s going to have to have some place in this administration perhaps. I’ll come to that in a moment because it’s a very complicated political puzzle here in a moment. But the rest of the transition team are unions and radical think tanks. You’ve got former deputy secretary, Seth Harris, who was the deputy secretary in the first half of the Obama Administration. You’ve got state of California’s major political speech writer for Governor Newsom in California, Patricia Moscoco.
You’ve got the major federation of state, county, and municipal employees, heavy union influence throughout all of this. And then a representative of Bernie Sanders’ office is on the team. Then very interesting, signaling a major shakeup in OSHA, is Doug Parker, who’s the state of California Department of Industrial Relations OSHA chief that has taken OSHA far beyond federal OSHA and-
Candee Chambers:
Oh geez. And there is go.
John Fox:
… has worried a lot of people in the safety industry.
Candee Chambers:
Yeah, I bet.
John Fox:
Then you’ve got Patricia Smith, another solicitor, the solicitor in the Obama Administration. And then-
Candee Chambers:
Jenny Yang.
John Fox:
… as you know, Jenny Yang.
Candee Chambers:
Yeah. The head of the EEOC or the chair of the EEOC when Obama was here. So that will be interesting to see if she’ll end up back in a position. I mean she left before she needed to from the EEOC, so it would be interesting to see if she wants to come back or maybe into another area.
John Fox:
So the current political employees, all those appointees at the Labor Department and all the other agencies are now going to be leaving in droves just as fast as they can find jobs. Of course, there’s a race on right now because there’s a limited number of jobs that the market can absorb and there’s 4,000 of these guys, in a good day, leaving. But in fact, it’s about 2,000 – 2,500. But any political appointees remaining on roll on January 20, 2021, Inaugural Day for the president-elect, will lose their jobs at the moment the new president is sworn in and they have to leave the buildings. Their electronic swipe cards go dead. They don’t have offices anymore.
Candee Chambers:
That’s interesting.
John Fox:
They’re a visitor.
Candee Chambers:
So they clean out way before then.
John Fox:
Oh yeah. They clean out. Although there are some that go down with the ship and literally walk out with the box in hand at the moment the new president is being sworn in because maybe they don’t have a job and they need the paycheck.
Candee Chambers:
Well, that’s true. Yeah.
John Fox:
Now, when the last political appointee in some federal agency, like OFCCP for example, leaves, a senior career employee is always identified to run the agency in an acting capacity because somebody has to be in charge always of every federal agency. It’s a federal law. Every time the director leaves the office to go on a trip, just even across state lines, there’s a formal written memo that will issue that says “so-and-so” is acting in the director’s physical absence, very formal.
When that happens, the acting career employee will report to some political appointee somewhere in the Labor Department because there’s no more political leadership in my example at the OFCCP, let’s assume, when Craig Leen and his two political deputies leave. But then when all the political appointees have left, then the career employees will report to the transition team. That’s why the transition team needs to be ready to start acting as managers and direct the activities of each sub-component agency. That’s why the transition teams are as big as they are because in the Labor Department, my gosh, you’ve got 400 different statute. You’ve got 20 different departments. It’s a big place just by itself before you get to the EEOC, before you get to NLRB.
Candee Chambers:
Well, it would probably be a lot easier then if the lead career employee is of the same political party as the transition team coming in. It could be or couldn’t be, but …
John Fox:
Well, the career employees are supposed to be apolitical. Of course, at OFCCP for example, they’re always 100% Democrats. But they act in an apolitical manner and follow the instructions of the political leadership of the day. Now, Patty Davidson, OFCCP’s current career employee deputy will likely become the acting director of OFCCP until Team Biden arrives at the OFCCP.
Candee Chambers:
I’ve heard wonderful things about Patty Davidson. She came from Wage and Hour and I’ve heard she’s very smart, very personable, very easy to speak with. She’s one person I have just met briefly, but I don’t know her. I’ve heard great things about her.
John Fox:
Yeah. The important part there is that she comes from Wage and Hour which is the rock of Gibraltar within the Labor Department.
Candee Chambers:
Exactly.
John Fox:
It runs like clockwork. It’s been there the longest. It’s got good procedures and good managers. They brought Patty over to stabilize an agency, the OFCCP, that was a little bit rocky and in need of some direction. The OFCCP director has never sat for advice and consent, so this is very important because Team Biden will be able to put somebody in place at the OFCCP almost immediately if they choose to. Usually, this is a decision made by the secretary of labor. The OFCCP director does not report to the White House. The OFCCP director reports to the secretary of labor, so he or she is going to pick the OFCCP director.
Candee Chambers:
Any idea who the next OFCCP director would be?
John Fox:
No. You could guess all day long. I’ll tell you, these things happen by hook or by crook. I was headed to be the EEOC general counsel when I went for an interview at the White House and suddenly I learned in that interview that one of my clients had just declined the OFCCP directorship. I called her up and said, “Well, you shouldn’t do that. Why don’t you take that job and I’ll be your deputy?” And that’s what we did. But all that happened on the fly and all of that within 24 hours. Nobody saw that coming. Things happen in the oddest of ways. These are discretionary-fill jobs.
They’ll be people that are going to be claiming that they have dues owed to them because they did something wonderful in the campaign.
Candee Chambers:
Which is kind of scary though. You’ve basically just affirmed that you may or may not even be able to do the job or prepared or knowledgeable enough to be effective at the job. That’s pretty scary.
John Fox:
Oh yeah. These people, almost all of them have no substantive knowledge. There are some exceptions, of course. I mean Jenny Yang’s going to know a lot about the EEOC and going to know a lot about discrimination law, as one example. But this point that the OFCCP director is not historically subject to advice and consent becomes very important because if the Republicans win 51 or more Senate seats following the two January 5, 2021 Senate race runoffs in Georgia which are set to occur, the Republicans can stop the seating of all of these advice and consent managers.
Let’s just look at the numbers. The current Senate tally as we sit here today is 50 Republican senators, 46 Democrats, two independents who caucus with the Democrats, so the Democrats can depend on 48 votes. But they’ve got to get to 50. They’ve got to get to 50 because if they have a tie at 50-50, then the vice president, in this case, Kamala Harris, would cast the tie-breaking vote and thus the Biden agenda could get through the Senate. But with the Republicans owning 50 seats already, they need only one more of those two Georgia races.
Candee Chambers:
I’ve heard that’s moving in a Republican win in that state.
John Fox:
Yeah. It’s a heavy lean towards both seats going to the Republicans as we sit here today. But Candee, I’m going to tell you, this is going to be the most expensive Senate races in the history of the world. I would not be surprised if you saw a quarter of a billion dollars, with a B, spent on those two races because the Senate rides on those two races. This is real money.
Candee Chambers:
Yeah. That’s true.
John Fox:
Everybody is going to be in-
Candee Chambers:
How are they doing this runoff? Do we even know? I mean are they having another election? Is that-
John Fox:
Yeah, they have another election.
Candee Chambers:
Okay. They are. Okay.
John Fox:
You have two senators that are incumbents who are Republican-
Candee Chambers:
Which is weird.
John Fox:
That’s very unusual. It’s not designed to occur that way. They have rotating assignments and terms to avoid this very phenomenon.
Candee Chambers:
Exactly, yeah.
John Fox:
But this phenomenon has happened in Georgia because Kelly Loeffler, the incumbent for one of the two seats, filled a vacant position. When you have a vacancy in a senatorial position, under the 12th Amendment, the governor of the states are allowed to appoint or not appoint a replacement for that senator until the next election. So in this case, the Republican governor of Georgia-
Candee Chambers:
Wanted a Republican.
John Fox:
… appointed a Republican, Kelly Loeffler, for the remaining almost two years of one term. And then the other Senate seat just happened to come up in its normal rotation for its every six-year vote. So they’re both up at the same time. Kelly Loeffler’s going to have a really tough fight against an African American preacher by the name of Raphael Warnock who looks very, very impressive and he got a lot of votes and he outvoted her. But neither one got enough to proceed to win the election so, hence, the runoff.
John Fox:
In Georgia, you have to get more than 50% of the vote. Even if you are 49% and your opponent’s 38%, you can’t take the seat. You’ve got to get more than 50%.
Candee Chambers:
So then why are they assuming that it’s going to fair Republican when he actually had more votes?
John Fox:
Because she was running against other people who are no longer there, particularly Libertarians.
Candee Chambers:
Okay, that are swaying the vote. Okay.
John Fox:
What happens is the Libertarians siphon off votes from the Republican-
Candee Chambers:
Republicans.
John Fox:
… side of the tally. And then when the Libertarians drop out, as they do here in a runoff, they take the top two.
Candee Chambers:
Okay. Okay. So it’ll be interesting to see what happens.
John Fox:
So all the Libertarian votes should go, by history, to the Republican.
Candee Chambers:
Interesting.
John Fox:
The other thing that raises some wrinkles for both Democrats and Republicans though is that the two left of center Independents, Bernie Sanders is one, an Independent from Vermont. Now, remember that. That’s going to be important in a moment. They typically caucus with the Democrats, but not always. On certain issues, they caucus and vote with the Republicans.
Candee Chambers:
That’s why they’re Independent. That’s why they’re Independent.
John Fox:
But then you have Senator Collins who won a surprise come-from-behind victory as the senator from Maine, Republican, and she votes with the Democrats from time to time. She’s an incumbent, and she voted against Amy Barrett for the Supreme Court. She was the lone dissenter in the Republicans. So if the Democrats picked up one of the two Georgia seats with the addition of the two Independents and getting occasionally Collins would get Democrats to 50 votes. That’s 46 Democrats, two Independents, one from Georgia, plus Collins. That would get them to 50, which would get them to Kamala Harris then casting the tiebreaker and passing whatever legislation.
But that’s a tough way to win. That’s a long, tough row to hoe. But here’s another wrinkle. Bernie Sanders urgently wants the secretary of labor and he’s calling in all of his chips on this right now as we speak. If he resigns his Senate seat, what’s going to happen? Under the 12th Amendment, the governor of Vermont who’s what?
Candee Chambers:
Republican.
John Fox:
A Republican-
Candee Chambers:
Is going to put in a Republican.
John Fox:
… is presumably going to appoint a Republican senator to replace him until the next election two years from now in 2022.
Candee Chambers:
Wow.
John Fox:
That could give Republicans then 53 Senate seats if everything broke perfectly for them, 50 currently already there, ready to be seated January 4th when the new Congress comes to-
Candee Chambers:
If they get the two Georgia runoffs, and yeah.
John Fox:
The two Georgia plus Bernie’s seat and that gets you to 53. That’s very comfortable. You could let Collins go vote with the Democrats periodically and it would still be fine, from a Republican point of view.
Candee Chambers:
But then he would have a tough time in getting his political appointees that needs advice and consent pushed through.
John Fox:
Yeah. That’s one of the two bad things that happens to Biden if the Senate goes Republican. First, Biden can not force legislation through the Senate. He just won’t have the votes. He’s going to have to bargain with Republicans who can stop any legislation that he proposes. He will either have to come to the middle or do what President Obama did.
Candee Chambers:
Start writing executive orders right and left.
John Fox:
You try to force things that you can through the executive branch because the president is the chief executive officer of the executive branch of government. So he can control his executive branch agencies, but what power do they have? They can’t issue rules without going through a process and that can get dicey. It takes a long time, years. But as you say, the other real problem is that Biden will not be able to easily get his political appointees approved in a timely manner. Let me just review the bidding for you. Note the delays that the Democrats were able to force on President Trump even though the Republicans controlled the Senate for the last six years and during the entire period of time that the Trump Administration was in office.
Even with Republican control of the Senate, the Democrats were able to deny over 700 federal government Trump nominees who needed to go through advice and consent to take their jobs. They’ve only had half of their political high-level appointees in place for the last four years. EEOC commissioners, it took 18 months-
Candee Chambers:
I know.
John Fox:
… to confirm and seat three of them. That all just happened very recently. How about the assistant attorney general for civil rights, a very important key civil rights post? It took over a year for Trump to get that guy seated. So with Senator McConnell being actively in opposition, if that’s what happens with the Biden advice and consent nominees, he can keep these guys back for two years if he wants to very easily through no expenditure of time or money, political capital on his part. That’s just part of his ownership and right as the balancing of powers between the executive branch and the legislative branch.
But here’s the punchline for OFCCP. If the Senate is 51 or 51+ Republicans next year, Biden will either have to scale back his political agenda by moving to the middle or he’s going to have to drive a very aggressive action as President Obama did for the last two years of his presidency when he had a Republican Senate for the first time during President Obama’s tenure. In either event, OFCCP is absolutely going to be the tip of the spear in Team Biden’s civil rights agenda because he can control it and he can drive things forward without the Senate. This becomes extremely important because you’ll find that the EEOC will not be able to do much at all for reasons that we’ll explain further in a moment.
John Fox:
But the core of the Biden agenda is worker issues and civil rights issues. The only way they’re going to get that done on the civil rights side is through the OFCCP. So it’s going to be ground zero.
Candee Chambers:
Interesting. I really wasn’t going to get into this today, but the new MOU with the EEOC and the OFCCP and the Department of Justice. I wonder if they were thinking along these lines because now OFCCP is taking on complaint, supposedly taking on dual-filed complaints and complaint authorization or authorization to investigate complaints, let’s put it that way. With what you just described, the EEOC is going to be kind of stuck in limbo-land and this would give the opportunity for Biden to have that push through-
John Fox:
Well, watch this.
Candee Chambers:
… the civil rights focus.
John Fox:
Well, look at a number of the different titles. What about OSHA? To get the OSHA assistant secretary of labor in place, that’s always been subject to advice and consent. So Biden’s going to have to go through the Senate to get his OSHA guy in, Mr. Parker from California that they are apparently lining up to take OSHA in a different direction. But he’s not going to be there for two years if the Republicans control the Senate. Wage and Hour, the Wage and Hour administrator is subject historically to advice and consent. That person is not going to be there.
Candee Chambers:
So we don’t have to expect the independent contractor and joint employment argument to come back on us at least for a few more years, right?
John Fox:
Well, the secretary of labor’s office can start driving a lot of that.
Candee Chambers:
Yeah. But the Wage and Hour has to put that through.
John Fox:
It’s going to be a very slow, tedious process and you won’t have your champion there, your top manager to drive things. What about the Department of Justice? Well, you can’t get the assistant attorney general confirmed. That guy won’t take his or her seat for two years at least.
Candee Chambers:
Well, that’s why I’m saying, if he gets the right person at the OFCCP they could push part of that civil rights focus forward.
John Fox:
But there’s going to be limitations. You raised the memorandum of understanding with the EEOC and the US Department of Justice. Well, that document says that to be amended, all three parties have to amend it. Well, let’s look at the EEOC. Well, you’ve got five commissioners now recently seated and it’s a bipartisan commission. So there are three Republicans currently and two Democrats. The way it works is that the president gets to identify the chair of the commission. That’s the president’s prerogative. They always identify somebody of their party as the chair.
But then the president can have as many as three, but there has to be an available term. So if you look at the chart now what you would see is that Jocelyn Samuels, a commissioner, a Democrat, is going to be the first one to be out of a job next July 1, 2021. She’s going to have to go back through advice and consent to the Senate. Of course, if the Senate is Republican, they’re going to put her on a slow boat going nowhere. She will have a legal entitlement to stay there through the end of the year even though her term expires July 1st. That’s a rule that if you don’t have a replacement, they stay until the end of the year term.
Candee Chambers:
Could they make her chair and give her an-
John Fox:
Yeah, but they wouldn’t, because she’s going to be a person without a country come July 1, 2021.
Candee Chambers:
So it doesn’t matter. She would still have to be-
John Fox:
They could make her the chair, but realize she’s only going to be there until December 31, 2021.
Candee Chambers:
Charlotte Burrows.
John Fox:
What they would probably do is make Charlotte Burrows the other Democrat who doesn’t come up for her term-
Candee Chambers:
A couple more years.
John Fox:
… until July 1, 2023. She’s also an incumbent. She’s been there a while, so that makes more sense.
Candee Chambers:
She’s the most vocal too about various things.
John Fox:
But what’s going to happen is that it’s not going to be until the end of 2022, December 31, 2022 before President Biden can get control of the EEOC if there’s a Senate that doesn’t want to cooperate with him.
Candee Chambers:
Assuming he does. I mean gosh, this could all be-
John Fox:
What about the NLRB? Same story. Right now there’s five members authorized for the NLRB. There’s only four in place today, three Republicans, one Democrat. The first moment in time that President Biden, if he becomes the president, could gain control of the NLRB, very important to the agenda for the Democrats is going to be when two of these guys leave. For that to happen, it’s going to be the end of 2022. This situation with the Senate is part of the balance of power that our forefathers very thoughtfully they downed in the Constitution because of their great fear of centralized tyrannical control by kings, as you’ll recall.
The balancing of power just works across all agencies and within the federal government and within the legislative branch as well because the House of Representatives have certain prerogatives different from the Senate. So it’s a very complex mixture. But the question is going to be where is President Biden going to go in fact? When he loses the Senate, if he does, it’s going to be a lot more head-bashing like we’ve seen for the last four years or else he’s going to make a radical turn from where these transition teams are and say, “Guys, we’re going to have to cut sail here and we’re going to have to go to the middle and negotiate with the Republicans and do things that we probably wouldn’t want to do, but we have to compromise.”
Candee Chambers:
I think it’s going to be a situation even if they do tend to come to the middle. It’s going to provide the appearance that they’re going completely left because with the Trump Administration, he has made some decisions. I was just thinking about Jill Biden, Dr. Jill Biden, who is an educator. A lot of commentary that I see is, “Well, what’s going to happen with education? What’s going to happen with Betsy DeVos? She’ll be gone.” I think people will see the total opposite, but it will probably be just more of coming to the middle. But it’s because a lot of people don’t care for Betsy DeVos. So it’s going to be an interesting way for him to move forward, should he have that right to do.
John Fox:
It’s complicated too, because Biden’s a very nice guy and he’s very experienced in the Senate. He’s been there a long time. The Senate is very effete and very polite historically. He’s going to want to try to build compromise, but he’s got to keep his base happy.
Candee Chambers:
Exactly.
John Fox:
He’s got to keep his eye, as do the Republicans, on the fact that in two years it could all change because there will be another one-third of the Senate up for reelection in 2022. So the whole roll of the dice could change the game board here. So they’ve got to not lose the opportunity to advance their political agendas. Let me tell you some of the things Biden can control even with a Republican Senate. A lot of this you’re going to see right through the affirmative action eyes of OFCCP.
You could see, as you mentioned earlier, Candee, executive orders. I guarantee you, you’re going to see them. You’ll see the return of the blacklisting executive order-
Candee Chambers:
Oh geez.
John Fox:
… the traumatized government contractors-
Candee Chambers:
Oh no.
John Fox:
… that you would be blacklisted if you had certain kinds of labor practices that were not appropriate relative to the executive order.
Candee Chambers:
I went to a listening session at the White House about that with Valerie, was it Jarrett? I mean and Tom Perez was there. I mean that was yikes. There were some strong proponents of that.
John Fox:
This is how they’ll get the labor agenda through is by executive order on government contractors. It’s not all employers, but it’s about 80% of the companies that count. So we’re going to be right in the middle of a freight train coming our way.
Candee Chambers:
Wow.
John Fox:
They’ll rescind absolutely Executive Order 1395 on-
Candee Chambers:
950.
John Fox:
… D&I training that President Trump because you can also legislate by stopping things, by rescission. I’m sure-
Candee Chambers:
Right, yeah. Within, what, X number of days or something?
John Fox:
… had great trepidation to losing votes, particularly with religiously inclined Democratic voters and Baptists and Catholics. I strongly suspect President Biden will rescind both of the Trump executive orders that had heavily advanced religious freedoms, but really upset a lot of people. Nonetheless, that’s a very hot issue on both sides of the aisle.
Let me just end with a recollection of what the Democratic Party platform says about where they want to take this incoming Biden Administration. If you put in your browser, 2020 Democratic Party platform, a 90-page-plus document would pop up. Let me give you some of the highlights that come from it. Protecting LGBTQ and health, there’s a real emphasis not on protecting LGBTQ because that’s now been taken care of in some part, not totally, by the Supreme Court’s Bostock decision. But the health issues are what employers are going to hear about.
“We will also take action to guarantee that LGBTQ+ people and those living with HIV/AIDS have full access to needed healthcare and resources, including by requiring that federal health plans provide coverage for HIV/AIDS testing and treatment and HIV prevention medications like PrEP and PEP, gender confirmation surgery, and hormone therapy.” Gender confirmation surgery is usually booked at about $40,000 a person.
Candee Chambers:
Honestly, I used to work for a life insurance company and we had a health insurance side of our business. Maybe they can force those requirements through in the Affordable Healthcare Act, but for other independent, Anthem, United Healthcare, Aetna, I don’t know how they can force that.
John Fox:
They’ll try to do it through HHS.
Candee Chambers:
Okay.
John Fox:
They’ll try to do it through government contractors.
Candee Chambers:
Wow.
John Fox:
I always worried years ago when President Bush, the son, saw the ability to control things because you’re a federal contractor and make it part of the contract. You have to make the widget look like this and your labor policies have to look like this. You’ll recall that he issued, and this kind of started the parade. He issued the Beck Executive Order saying that government contractors had to post a certain notice that had nothing to do with affirmative action-
Candee Chambers:
I remember that.
John Fox:
… had nothing to do with EEO-
Candee Chambers:
Everybody laughed about the Beck poster and the non-Beck poster.
John Fox:
Right. But then the Obama team, when they realized they could really only get things forward through executive order, started seizing on executive orders with government contractors because they’ve got control of them because you want the money? Here’s the rules of engagement that you’ve got to play with.
Candee Chambers:
I want to be clear. I think it’s important for people with HIV and AIDS to have the medication they need. I think it’s important that people, especially children, people with preexisting conditions don’t lose coverage. Gender reassignment surgery, if that’s what someone needs and it’s only a $40,000 surgery, I mean you could have somebody that has an open heart surgery and you’re going to pay in the hundreds of thousands of dollars. But forcing it through is going to be an interesting challenge, I believe.
John Fox:
Well, here’s going to be a head-on collision with the law and with where most government contractors are. Another part, and I’m going to quote from the 2020 Democratic Party platform, “Democrats recognize that race-neutral policies are not sufficient to rectify race-based disparities. We will take a comprehensive approach to embed racial justice in every element of our governing agenda, including in jobs and jobs creation, et cetera.” So that’s saying race-neutral solutions are not sufficient. They’re talking about quotas in employment.
Candee Chambers:
Wow.
John Fox:
OFCCP even before this has long been accused of driving quota decision making. I’ve never thought that that was particularly true if people understand the true distinction between goals and quotas, and there is a distinction. Indeed, there was a time that a case went to the Supreme Court where a hard cold-on-the-docks quota was described by the federal judge as a goal. The chamber of commerce came to me and asked me to write an amicus curiae brief, a friend of the court brief in the Supreme Court to help distinguish it. So I did that and Justice O’Connor actually, in that opinion involving a Local 57 in New York, picked up on that distinction and embedded it in her opinion explaining that there is a difference between goals and quotas. But we’ve long heard criticism that OFCCP converts a goal into a quota-
Candee Chambers:
I know.
John Fox:
… and forces contractors to just hire by the numbers. So you’re going to see this come back.
Candee Chambers:
I tell you what. You know what? I am just speaking from a woman’s standpoint. I don’t really know anyone that would like to have a job because they are the right gender, the right race, the right ethnicity, the right protected class basically. People that are truly qualified for their jobs don’t want to have the job given to them as a favor. They want to qualify for that job. Yikes. That’s going to be an interesting movement.
John Fox:
Well, let me give you two last ones. “We will take aggressive action to end pay inequality, including by increasing penalties against companies that discriminate against women and passing the Paycheck Fairness Act.” Obviously, the Paycheck Fairness Act is going to go nowhere if there is a Republican Senate-
Candee Chambers:
Senate.
John Fox:
… and assuming that these guys are not going to come to the middle and start compromising on things. I mean I think one of the messages out of this election too for both parties was the country’s tired of bickering and they’re tired of head-knocking and, rather, they’re I think very much hoping that these parties are going to come together. But this transition team is a very bad start towards compromise, I must say. They’re very talented and highly experienced people, but these are people that are not accustomed to compromising on their … have a very aggressive agenda.
The last thing I would pluck out of the 2020 Democratic Party platform that relates to employment and particularly to OFCCP, “We will rigorously enforce nondiscrimination protections for people with disabilities in healthcare, employment, education, and housing and ensure equal access to the ballot box.” There is a vein of discussion that runs through the entire document, the entire platform, that has a lot of concern that someone is trying to dilute the Americans With Disabilities Act. I have not been aware of that myself.
Candee Chambers:
Yeah. I would hate to see that. I would hate to see that.
John Fox:
Obviously, the OFCCP is a major player in the disability world with its Section 503 authority. I have not seen a great deal of controversy about the way they have proceeded. I think everybody thinks they’re doing just fine there.
Candee Chambers:
Yeah. I think things are really getting better, certainly a long way from where it needs to be. But it is getting better.
John Fox:
Government contractors are really doing a lot of accommodations and a lot of creative things. Certainly, I know with DE, you’ve got a lot of programs and training around that that is being very, very well-received. So I think nothing’s going to happen different than the 503 program. It’ll just keep doing what it’s been doing.
Candee Chambers:
Well, I just hope that we keep seeing more people with disabilities finding employment. I mean that’s the bottom line what Craig Leen has pushed forward, what ODEP is pushing, EARN and Pete and all of the other agencies, Jan, I mean they’re all helping people with disabilities find work.
John Fox:
The unfortunate part there is that if you look at the unemployment numbers, the employment of individuals with disabilities always lags-
Candee Chambers:
Always.
John Fox:
… every other protected group that you can identify.
Candee Chambers:
You’re exactly right. I love the story. Our Recruit Rooster team has started doing accessibility audits and they build accessible career websites. The big difficulty there is if a person with a disability needs an accommodation or an accessible website and is in competition for a job with a person who does not have a disability, by the time that person gets the accommodation that they need, the other person’s already been interviewed because it takes time to get that accommodation. So it’s why I know we’ve been trying to push through our membership and Craig Leen is pushing accessibility, accessibility, accessibility because you need to give equal rights to all people looking for jobs.
John Fox:
Well, a final word from me is that I think people used to scoff at accessible websites, but that’s a thing whose time has come.
Candee Chambers:
Exactly. Exactly. Well, John, I want to thank you again for joining me today. It’s always a pleasure picking your brain. It’s always good for everyone to learn how the legislation works together and to get that understanding. I remember jokingly saying last year when we did this podcast that we would encounter some surprises along the way, I’m sure. With this year being an election year, boy, was I really correct but in the worst way.
John Fox:
Spot on.
Candee Chambers:
I was spot on. It’s not one of those areas I really wish I would have been so spot on. To our listeners, if you’d like to glean more information from our DE compliance experts, you can subscribe to receive our weekly blog, the OFCCP Week In Review, by visiting directemployers.org/subscribe. It’s free. We have thousands and thousands of readers. Even Congress now is signing up for it, which is kind of scary on the one hand.
John Fox:
Well, it’s become the main channel of everything OFCCP communication.
Candee Chambers:
Yeah. I am shocked when I see how many people just from the Department of Labor that read it and Department of Defense. When I saw Congress I was like, “Yikes.”
John Fox:
Well, the real bonus there too is that you not only get a story that explains crisply what’s that issue, but you have embedded links to all the underlying-
Candee Chambers:
All the appropriate documents.
John Fox:
… government documents, the rule, the directive, the memo, the letter, whatever it may be.
Candee Chambers:
Yep. It comes out Monday at 3:00 Eastern Standard Time routinely via text or email. It’s free. It’s one of those things that everything that happened the prior week is in there. We update you on everything you need to know as a contractor and prepare you for future legislation, executive orders, and more. So I would recommend that you sign up for that at anytime.
Thank you for tuning in for another episode of the DE Talk Podcast. Stay connected with DirectEmployers on Facebook, Twitter and LinkedIn and be sure to subscribe to the podcast to receive notifications of new episodes each month.
