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By Ben Penn
Labor Department leaders are slightly backtracking on an effort to develop a more business-friendly approach to probing federal contractors for pay discrimination, two sources familiar with the deliberations told Bloomberg Law.
The department still plans to give federal contractors some power to determine which workers are doing the same job for pay comparison purposes. But the DOL is softening the move by also allowing government investigators leeway to declare those groupings invalid. It also wants to ensure that new investigative guidance doesn’t undercut ongoing litigation.
The agency’s leadership huddled and decided to moderate their draft of a new field memo after Bloomberg Law reported April 19 that the DOL was scrapping an Obama-era contractor investigation policy. That policy, which was criticized by the business community, directed investigators to decide for themselves whether certain workers are performing the same jobs.
In an updated guidance document that now awaits the labor secretary’s approval, the agency will revise its original plans by giving more authority back to DOL litigators and auditors and handing less control to businesses. The DOL is also backing off of a requirement that statistical data be paired with anecdotal evidence of discrimination to pursue bias charges.
The update states that the enforcement guidance will apply only to new investigations by the DOL’s Office of Federal Contract Compliance Programs.
The revisions may muffle some of the controversy sparked by last week’s report. Rep. Rosa DeLauro (D-Conn.) and several left-leaning advocacy groups framed the news as part of a Trump administration pattern of walking back on claims to protect workers.
The updates, when finalized, could also disappoint the federal contracting community that welcomed last week’s report that the OFCCP was reversing what they felt was an unfair, overly broad enforcement policy.
The department is still shifting its enforcement focus to ensuring that government contractors comply with pay equity requirements rather than pushing discrimination allegations, a source said. The secretary’s office aims to release the new directive by the end of April 25, but the sources said that plan is subject to further delays.
The DOL didn’t immediately reply to a request for comment.
Among the most significant changes, the new draft clarifies that the new enforcement instructions won’t affect ongoing litigation that stemmed from the prior guidance and that auditors will retain at least some discretion to discount employer-controlled salary grouping variables.
In the old draft, the OFCCP told investigators to analyze pay rates among groups of workers at a particular business based on job categories set by the companies.
The DOL is also no longer referring to this change as a rescission and replacement of the old guidance, known as Directive 307. Instead, the department will announce it as an update to the 2013 directive.
The new draft also includes revisions aimed at softening a requirement for anecdotal evidence. The department in a previous version of the move said it would be “reluctant” to pursue pay discrimination allegations based solely on statistical pay disparities, without some allegation of bias by workers.
It’s not immediately clear how much how the DOL will update the anecdotal evidence requirement. The sources also didn’t say how much discretion investigators will have to use their own salary groupings.
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