Labor Dept. Contractor Auditor Still Lacks Political Head

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By Jay-Anne B. Casuga, Chris Opfer, and Ben Penn

The Labor Department office that audits government contractors for workplace nondiscrimination and affirmative action compliance still doesn’t have a politically appointed director, the agency told Bloomberg Law.

Sources in the federal contracting community earlier this month said they anticipated that Coral Gables, Fla., city attorney Craig E. Leen would be named to lead the DOL’s Office of Federal Contract Compliance Programs. At the time, a DOL spokesman and Leen declined comment to Bloomberg Law.

But now, the agency says Leen will today begin serving as a “senior advisor in OFCCP.” No further details were provided about Leen’s role or duties.

Aside from Leen, other names that were previously floated for the director position include two lawyers with ties to the Equal Employment Opportunity Commission and a former Senate labor committee attorney.

The OFCCP has been operating without a politically appointed head for 13 months and counting. The agency’s leader under the Obama administration, Patricia Shiu, stepped down last November. She began serving as director in October 2009, about nine months after President Barack Obama’s inauguration for his first term. Thomas Dowd, a nonpolitical career official, is the current acting director.

A new political director could change the agency’s enforcement priorities and the way it audits government contractors. During the Obama administration, the agency received criticism from some employer representatives and Republican lawmakers for what they viewed as burdensome rulemaking and lengthy, deep-dive audits of contractor employment data. The office annually audits about 2 percent of about 200,000 federal contractor locations.

Worker advocacy and civil rights groups, however, have applauded the agency’s efforts to combat discrimination. The agency collected a record amount in back pay and interest from discrimination settlements with contractors in fiscal 2017.

What’s the Hold Up?

Contractor representatives over the past several months have speculated to Bloomberg Law that the Trump administration’s proposals to cut the OFCCP’s budget and eventually merge it with the EEOC could have made it difficult to find candidates willing to serve as director.

Those proposals may have been viewed as “indicative of how the administration views the OFCCP” and that “perhaps it’s not a priority component agency within the department,” James Plunkett, senior government relations counsel at Ogletree Deakins in Washington, told Bloomberg Law Nov. 22.

Congress effectively killed the controversial merger proposal for now, but the agency’s budget has yet to be determined.

Those issues aside, others have attributed the continued absence of a political OFCCP director to general delays stemming from Andrew Puzder’s withdrawal as President Donald Trump’s labor secretary nominee and his eventual replacement with Alexander Acosta. The slow pace for confirming the Trump administration’s political appointees also could be a factor. The DOL, for example, is still waiting on Senate confirmation for its deputy secretary, labor solicitor, and Wage and Hour Division administrator.

Unless “something really dramatic happens,” the OFCCP might not have a political director until “sometime in 2018,” Plunkett said.

The office’s director position doesn’t require Senate confirmation, though some have argued that it should.

To contact the reporters on this story: Jay-Anne B. Casuga in Washington at jcasuga@bloomberglaw.com; Chris Opfer in New York at copfer@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com

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

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