Would Bias Probes of Federal Contractors Be Affected by Cuts?

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By Jay-Anne B. Casuga

A reduced Labor Department budget wouldn’t necessarily cut the number of investigations done in response to discrimination complaints from employees of government contractors. But funding could have an impact on how investigations are conducted.

President Donald Trump proposed a 21 percent cut for the DOL in a budget proposal released earlier this month. He didn’t include specific numbers for DOL subagencies such as the Office of Federal Contract Compliance Programs, but less funding is expected to be proposed for the OFCCP.

A smaller budget, however, won’t mean that the OFCCP stops investigating complaints, John Fox, an OFCCP policy official during the Ronald Reagan administration, told Bloomberg BNA.

The OFCCP’s rules require the agency to investigate every complaint it receives, as long as it has jurisdiction over them, said Fox, now a management attorney with Fox, Wang & Morgan in San Jose, Calif.

The number of bias complaints received by the OFCCP has inched up since fiscal year 2007, averaging about 666 per year, according to a Bloomberg BNA analysis of government data.

Meanwhile, the number of complaint investigations the agency closes every fiscal year, after rising from 84 in fiscal 2009 to 232 in fiscal 2013, has ranged from 114 to 148 during fiscal years 2014 to 2016.

The OFCCP has jurisdiction over companies that have government contracts worth more than $10,000. It enforces an executive order and two laws that prohibit discrimination based on race, sex, color, national origin, religion, sexual orientation, gender identity, disability and veteran status.

Complaint investigations, Fox said, require only a “modest allocation of resources” in comparison with compliance audits, which make up the bulk of the agency’s enforcement work.

Fewer On-Site Investigations?

But some practitioners think a change could be in the works.

Full complaint investigations by the OFCCP, at least in recent years, have included an on-site visit to a contractor’s facility so the agency could conduct in-person interviews, Matthew Camardella, a management attorney with Jackson Lewis in Melville, N.Y., told Bloomberg BNA. He is co-chair of the firm’s Affirmative Action & OFCCP Defense Group.

“With a shrinking budget, that’s where we might see an impact,” Camardella said. “The OFCCP might not go on-site except in unusual circumstances.”

Still others, such as management attorney Alissa Horvitz of Roffman Horvitz in McLean, Va., told Bloomberg BNA that it’s too early to make any predictions about how potential budget cuts could affect OFCCP complaint investigations.

The agency has begun to rely more on technology to conduct compliance audits remotely, said Horvitz, who previously served as co-chair of Littler Mendelson’s OFCCP practice group. But technology might not necessarily be used in a similar way for complaint investigations.

“I can’t imagine the OFCCP conducting employee interviews through Skype,” she said.

Additionally, if the fiscal year was coming to a close and the OFCCP didn’t have enough budget dollars to make on-site visits, historically it would hold them until the beginning of the next fiscal year, Horvitz said.

It’s unclear whether such a practice will continue with a reduced budget going forward and with new leadership eventually in place.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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