OFCCP Director Shiu to Depart Agency Nov. 6

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By Jay-Anne B. Casuga

Oct. 18 — Patricia A. Shiu, the director of the Labor Department agency tasked with enforcing federal contractors’ affirmative action and nondiscrimination obligations, will step down Nov. 6 after more than seven years of service, an agency spokeswoman confirmed to Bloomberg BNA.

Under Shiu’s leadership, the DOL’s Office of Federal Contract Compliance Programs has been known for its aggressive regulatory reform and deeper dives into contractor data and records during compliance audits, especially when it came to seeking out pay discrimination.

Shiu is “a passionate and tireless advocate for equal employment opportunity for America’s workers and their families,” the spokeswoman said in an Oct. 18 statement.

When Shiu departs, the Labor Department will likely select a current OFCCP official who isn’t a political appointee, also known as a career employee, to serve as acting director until the new president and labor secretary name a permanent director.

Between the George W. Bush and Barack Obama administrations, Lorenzo Harrison, then the OFCCP’s regional director in New York, served as acting director before Shiu joined the agency in October 2009.

The DOL didn’t comment on who might replace Shiu in the interim.

‘All About Regulations.’

Shiu’s legacy is “all about regulations,” David Cohen, president of DCI Consulting Group Inc. in Washington, told Bloomberg BNA Oct. 18.

“I give her a lot of credit,” said Cohen, who also serves as a co-chair of The OFCCP Institute, a national nonprofit employer association in Washington. “She took on a lot of heavy lifting with old and outdated regulations.”

Over the past seven years, the OFCCP finalized rules that for the first time required contractors to adopt hiring goals for disabled individuals and benchmarks for covered military veterans. Those rules also introduced a number of new data collection, outreach and recruitment obligations.

Cohen called the disability and veteran rules “an incredible accomplishment” for Shiu and her team.

The OFCCP also issued final rules prohibiting contractors from implementing pay secrecy policies and discriminating against applicants and employees based on sexual orientation and gender identity.

Additionally, the agency updated sex discrimination rules that were more than 40 years old.

Furthermore, Shiu guided the OFCCP in strengthening its mega construction program, which focuses on providing compliance assistance to contractors on large construction projects. The expanded program was in lieu of issuing a proposed rule that would have updated the agency’s rules for construction contractors. The agency also created an Indian and Native American Employment Rights Program under Shiu’s leadership.

Pay Discrimination a Priority

The OFCCP under Shiu also made eliminating systemic pay discrimination an enforcement priority, contributing to President Obama’s mission to narrow the pay gap between males and females, and minorities and non-minorities.

The agency rescinded old interpretative standards for systemic compensation discrimination and voluntary guidelines for self-evaluation of pay practices for federal contractors. It replaced them with a new directive that provided the OFCCP with broader and more flexible investigation procedures.

It also worked on a federal contractor pay data collection tool that has since become part of the Equal Employment Opportunity Commission’s annual employer information, or EEO-1, report. The updated report requires employers, including contractors, to provide summary pay data grouped by sex, race and ethnicity.

Fewer, but More Thorough, Audits

Shiu’s OFCCP also is known for its more comprehensive compliance reviews of federal contractors, an approach that was formalized in the agency’s 2011 “ active case enforcement” directive.

Under active case enforcement, the OFCCP performed a full desk audit in every compliance evaluation to analyze a contractor’s affirmative action plan and other employment data and records. It also conducted a full review that included onsite visits by agency officers for every 25th contractor selected for an evaluation.

By contrast, the OFCCP’s process during the Bush administration involved closing a review if an abbreviated desk audit of a contractor’s AAP and personnel data revealed no indicators of discrimination.

Shiu has previously told Bloomberg BNA that the OFCCP is intentionally “focusing on quality,” and not quantity, with respect to evaluations.

However, some contractor representatives over the years have criticized the OFCCP’s lengthy and expansive approach as not particularly efficient from an enforcement perspective.

Cohen said the OFCCP’s current approach requires it to “spend limited resources on compliance evaluations where there were no apparent issues” and that ultimately ended with no violations found.

He cited a recent Government Accountability Office report that stated that an analysis of the OFCCP’s compliance reviews since 2010 revealed no violations found in about 78 percent of evaluations. Only about 2 percent of reviews resulted in findings of discrimination, the report said.

Additionally, it took an average of six months for the OFCCP to close an audit with a letter of compliance, 402 days for the agency to find a technical violation and 1,487 days to reach a finding of discrimination, the report said.

“That just doesn’t make sense for contractors and it doesn’t make sense for OFCCP,” Cohen said.

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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