What Federal Contractors, Workers Want for the New Year

By Jay-Anne B. Casuga

Now that a new political leader has been installed at the Labor Department’s contractor auditing office, business representatives and civil rights advocates have a number of items on their wishlists they’d like to see fulfilled by the agency moving forward.

Ondray T. Harris earlier this week began serving as director of the DOL’s Office of Federal Contract Compliance Programs, which audits about 1 percent to 2 percent of roughly 200,000 federal contractor facilities annually for workplace affirmative action and nondiscrimination compliance.

With Harris now in place, any plans to change the agency’s enforcement priorities and policies can begin, but it may take some time for those to take shape. In the meantime, federal contractors would like to see more nationwide consistency in the way the OFCCP conducts audits, as well as more collaboration and transparency during those reviews, management lawyers and consultants told Bloomberg Law.

“I think they would like to see a little bit more transparency, cooperation, and a less adversarial approach to investigations,” said James Plunkett, senior government relations counsel at Ogletree Deakins in Washington.

Employee advocates, on the other hand, would like the agency to continue to target systemic discrimination, with a focus on pay equity, and for the administration to show its support for the office’s mission to protect workers, a former OFCCP official and Labor Department attorney said.

“Equal employment opportunity is still the law of the land,” said Shirley Wilcher, the agency’s director during the Clinton administration and now executive director of the American Association for Access, Equity and Diversity in Washington. “It is our hope that it will remain the focus.”

Transparency, Consistency, Collaboration

It can be easy to get lost in the weeds over contractor wishes for changes to particular agency policies, such as the rescission of certain internal directives or the return to previous audit approaches, the attorneys and consultants said. For example, contractor representatives have frequently criticized the agency’s deep dives into contractor data and records during the Obama administration. They’ve also repeatedly called for the rescission of a 2013 directive on pay discrimination investigations, which was later generally codified in final rules updating the office’s regulations prohibiting sex discrimination.

Different industries will also have different wishes. Contractors in the health-care industry, for instance, will likely keep an eye on the agency as an enforcement moratorium for certain medical providers expires in 2019. Colleges and universities with federal contracts would like to see more guidance from the agency tailored specifically to the higher-education community, such as whether student-employees should be included in affirmative actions plans.

Some employer organizations have already sent specific recommendations to the agency, including the U.S. Chamber of Commerce and the Institute for Workplace Equality.

But more broadly, management-side representatives said they would like more transparency in how the office analyzes contractors’ employment data, especially pay data, and why it requests certain records during audits.

A lack of transparency isn’t helpful for contractors that want to self-audit themselves and look for potential problem areas, said Michael Eastman, vice president of policy and assistant general counsel of the Center for Workplace Compliance in Washington.

Additionally, audit consistency among enforcement regions and more collaboration from the agency during audits were oft-cited wishes from contractors.

“The OFCCP’s interpretation of the regulations and intensity of its reviews often seem as unpredictable as the weather, depending on which regional or district office a contractor is dealing with,” said K. Joy Chin, a management attorney with Jackson Lewis in Melville, N.Y., and co-leader of the firm’s affirmative action compliance and OFCCP defense practice group. “If contractors could see more consistency in the OFCCP’s approach and enforcement, compliance reviews may run more efficiently.”

As for collaboration, contractors would like to see more reasonable deadlines for submitting requested data and documents during audits, as well as more communication, multiple representatives said.

“We wish, when the OFCCP reaches preliminary findings of fact or conclusions, that they engage in a productive dialogue with the contractor and its representatives so that everyone is operating on the same page,” said Alissa Horvitz, a management attorney with Roffman Horvitz in McLean, Va. Horvitz previously served as co-chair of Littler Mendelson’s OFCCP practice group.

More Wishlist Items

Other wishes from the contractor community include:

•  A neutral, ombudsman-like point of contact for contractors at the national office who could informally resolve audit disputes before enforcement actions are initiated.
•  A “holistic” approach to audits that focuses on more than just statistical analysis of employment data and takes into account a contractor’s outreach, recruitment, education, and training efforts to encourage diversity based on race, sex, disability, or veteran status.
•  Removal of the agency’s class member locator website, which lists OFCCP financial settlements with contractors on behalf of applicants and employees who allegedly experienced discrimination. The agency has said the website is intended to notify potential class members about monetary awards they are owed. Employer representatives, however, have argued that the site includes an element of “public shaming” that might have an unintended chilling effect on settlements.

Worker Advocates: Continued Commitment to Mission

In light of the Justice Department’s investigation of Harvard University’s affirmative action policies, worker advocates said their wishlist would include a showing of support from DOL leadership to advance the agency’s affirmative action and nondiscrimination goals.

“It would be great for the secretary to demonstrate a clear commitment to the mission of OFCCP,” said Adam Pulver, a former DOL lawyer who’s now an attorney with Public Citizen Litigation Group in Washington.

Both Pulver and Wilcher said they would like to see the agency continue to identify and combat systemic compensation discrimination. The Obama administration made pay equity one of the agency’s top enforcement priorities.

“There are still issues of unequal pay,” Wilcher said. “The agency still needs to make that a priority in my humble opinion.”

Other wishes from employee advocates include:

•  An end to plans to merge the OFCCP with the Equal Employment Opportunity Commission. Although that controversial idea has been around for decades, the Trump administration recently revived the proposal. It was shot down by Congress, at least for now, after pushback from the business community and civil rights groups.
•  Agency outreach to remind employees that it accepts discrimination complaints. This could be especially important given the existing open question among federal courts over whether Title VII of the 1964 Civil Rights Act bars sexual orientation or gender identity discrimination, advocates said. Unlike Title VII, an executive order enforced by the OFCCP expressly protects lesbian, gay, bisexual, and transgender applicants and employees.
•  A resistance to “aggressive tactics of employers that more and more are demanding OFCCP prove its case at or before the administrative complaint phase,” Pulver said. That’s a “backwards approach to how litigation works,” he said.

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

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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