Merger of EEOC, Labor Department Auditor Delayed for Now?

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Jay-Anne B. Casuga

The Trump administration’s proposal to merge the EEOC and the Labor Department’s contractor compliance office will likely be delayed, according to a government letter provided Aug. 29 to Bloomberg BNA.

The proposed merger of the Equal Employment Opportunity Commission and the DOL’s Office of Federal Contract Compliance Programs includes “several challenging transition issues,” OFCCP Acting Director Thomas M. Dowd acknowledged in an Aug. 24 letter sent to the Institute for Workplace Equality. The Institute, a national nonprofit employer association in Washington, provided an exclusive copy of the letter to Bloomberg BNA.

Legislative and regulatory actions required to merge the agencies and to reconcile their different enforcement structures and approaches “will likely prove time consuming and could delay the expected FY 2019 start for the proposed consolidation,” said Dowd, who wrote on behalf of the DOL and the White House’s Office of Management and Budget.

“It appears that the merger is not going to happen in the near future,” David Cohen, president of DCI Consulting Group in Washington, told Bloomberg BNA Aug. 29.

Mickey Silberman, a partner at Silberman Law in Denver, said the window to accomplish this merger before the next presidential election cycle is shrinking.

And while the proposal could reappear in the future, it’s “highly unlikely,” according to David Fortney, who was acting labor solicitor during the George H.W. Bush administration and is now a management attorney at Fortney & Scott LLC in Washington. Fortney, Silberman, and Cohen are co-chairs with the Institute for Workplace Equality.

Concerns Under Consideration, OMB Says

“We understand the concerns of the agencies involved and are taking them into consideration as we move forward in the budget and government reorganization process,” an OMB spokeswoman told Bloomberg BNA.

A DOL spokesman declined to comment beyond the contents of Dowd’s letter. An EEOC representative wasn’t immediately available to respond to Bloomberg BNA’s Aug. 29 request for comment outside of normal business hours.

President Donald Trump proposed the agency merger in his fiscal year 2018 budget request as part of efforts to promote government efficiency and effectiveness.

The proposal has been opposed by the business community, including the U.S. Chamber of Commerce and the Institute for Workplace Equality, as well as civil rights groups, including the National Association for the Advancement of Colored People. It also has divided lawmakers.

Stakeholders have argued that the two agencies should remain separate for many reasons. Aside from their different enforcement goals and legal authority, worker advocates have raised concerns about a merger leading to less anti-discrimination enforcement to the detriment of workers.

At the same time, management-side stakeholders have raised concerns about transferring the power to withhold government contracts from a Cabinet-level agency to an independent commission, as well as potentially exposing contractors to even more damages liability under a combined agency.

Congress Will Have Last Word

The merger potentially could still appear in proposed reorganization plans that each agency must submit by Sept. 9, as required by a March executive order for a government-wide review to determine where federal programs can be eliminated or modified to save costs.

But Congress will have the “last word” on the merger proposal, Fortney said.

So far, House bills and accompanying reports that would fund the Labor Department and the EEOC in fiscal 2018 have not expressly mentioned the merger proposal.

The Senate has yet to release its versions of spending legislation.

Improvements Through Existing MOU?

While Congress continues to consider the merger, Dowd added in the letter that there are “contemporaneous opportunities” to improve the OFCCP through an existing memorandum of understanding with the EEOC.

The MOU, last revised in 2011, coordinates the agencies’ enforcement and information-sharing efforts regarding discrimination claims under Title VII of the 1964 Civil Rights Act and Executive Order 11,246.

“Working within the framework of the MOU, we should be able to achieve desired reforms in the near term, without immediate recourse to legislative and regulatory action,” Dowd wrote.

Both agencies also will continue to explore “other opportunities to identify operational cost savings by eliminating existing redundancies,” he wrote.

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; Chris Opfer at copfer@bna.com

For More Information

The letter is available at http://src.bna.com/r48.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law