Former Senate Lawyer May Be in Running to Lead OFCCP

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By Jay-Anne B. Casuga

A former labor and pensions counsel for the Senate labor committee is in the mix of candidates possibly being considered to lead the Labor Department’s federal contractor compliance agency, contracting industry sources told Bloomberg BNA.

Molly E. Conway joins a list of contenders that could potentially serve as director of the DOL’s Office of Federal Contract Compliance Programs. The OFCCP audits government contractors for compliance with workplace nondiscrimination and affirmative action requirements.

Conway is currently on the Trump administration’s “beachhead” team of temporary political appointees at the DOL, sources said. Before joining the Senate Health, Education, Labor and Pensions Committee, she served as a staffer on the House Education and the Workforce Committee and handled equal employment opportunity issues, they said. The sources spoke on the condition of anonymity.

Leslie Silverman and Paul Kehoe, two attorneys with past ties to the Equal Employment Opportunity Commission, were names floated by some employer-side stakeholders for OFCCP director before Andrew Puzder withdrew as labor secretary nominee, Bloomberg BNA reported in February.

The new labor secretary nominee, Alexander Acosta, could be confirmed as early as next week. Acosta would appoint the OFCCP’s new director.

Should Senate Confirmation Be Required?

Some observers have questioned since 2009 whether the OFCCP director position should now be subject to the Senate’s confirmation process, Bloomberg BNA reported previously.

An OFCCP director has historically been classified as a deputy assistant secretary of labor, which doesn’t require confirmation. The OFCCP previously fell within the umbrella of the DOL’s Employment Standards Administration, which was led by a Senate-confirmed assistant labor secretary.

The ESA was eliminated in November 2009, meaning that the OFCCP’s director began reporting directly to the labor secretary. If the director is considered an assistant secretary of labor, then he or she would require Senate confirmation.

Criticism of Obama’s OFCCP

During the Obama administration, the OFCCP received criticism from some employer representatives and Republican lawmakers for what they viewed as burdensome rulemaking.

The agency since 2009 finalized rules that introduced new data collection and analysis requirements regarding the hiring of protected veterans and individuals with disabilities. It also introduced nondiscrimination protections based on sexual orientation and gender identity, encouraged pay transparency and modernized outdated sex bias guidelines.

Additionally, it proposed a rule to collect summary pay data from federal contractors. That proposal eventually became part of the EEOC’s updated EEO-1 report that certain employers submit annually.

The OFCCP collaborated with the EEOC on the pay data collection aspect of the report and has intended to use the data to improve its audit scheduling process to focus on industries or contractors with indicators of pay disparities.

Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce committee, and Rep. Tim Walberg (R-Mich.), chairman of the panel’s Workforce Protections Subcommittee, have written letters and raised concerns at hearings about the OFCCP’s regulatory initiatives, most notably the pay data proposal and the rules relating to veterans and disabled individuals.

Some Republican senators, including Senate HELP Committee Chairman Sen. Lamar Alexander (Tenn.), urged the White House Office of Management and Budget last August to reject the EEO-1 proposal. And the Trump administration has also been recently asked to scrap the pay data collection portion of the report.

GAO Report Requested

Additionally, Kline and Walberg submitted a request to the Government Accountability Office for an assessment of the OFCCP.

The GAO issued its report last September, making several recommendations to the agency, such as changing the way it selects contractors for audit and improving its compliance assistance efforts.

Practitioners have previously speculated that the Trump administration will take the GAO’s recommendations under consideration.

Furthermore, Republican lawmakers have pushed legislation to limit the OFCCP’s jurisdiction over certain medical providers. Those efforts ultimately led to the OFCCP placing a five-year moratorium on agency enforcement activities related to those providers.

— With assistance from Chris Opfer.

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

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