This site uses cookies. By continuing to browse the site you are agreeing to our use of cookies.
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...
Aug. 4 — With less than six months left in President Barack Obama’s term, the Labor Department’s Office of Federal Contract Compliance Programs must now prepare for a transition to a new administration, and contractors can expect “big changes” at the agency, a management attorney said Aug. 3.
Whether Donald Trump or Hillary Clinton becomes president, a three-phase transition will begin after the November election, John Fox of Fox, Wang & Morgan in San Jose told attendees of a National Industry Liaison Group conference in Charlotte, N.C. Fox is a former OFCCP policy official.
He said both Clinton and Trump have in the past supported affirmative action and nondiscrimination, but neither candidate has expressed an opinion on the OFCCP. He added that it’s “worrisome” that both the Democratic and Republican platforms are silent on affirmative action and nondiscrimination, which had been present in past platforms.
Regardless, Fox said “big changes are coming” to the OFCCP in both structure and focus whether the new president is Clinton or Trump.
For example, Fox said he believes there will be continued consideration of creating six specialized regional centers for the OFCCP with “no or few district offices.” The OFCCP currently has 49 district and area offices, and six regional offices.
In its fiscal year 2017 budget justification document, the OFCCP discussed plans to establish two “Skilled Regional Centers,” one in San Francisco and one in New York.
The centers would have “highly skilled and specialized compliance officers capable of handling various large, complex compliance evaluations in specific industries, such as financial services or information technology,” the budget documents said.
Additionally, Fox said, there may be a movement to transfer the OFCCP to the Equal Employment Opportunity Commission, where it would operate as the EEOC’s “systemic discrimination arm.”
However, he said, he expects such a movement “should fail.”
Fox also said he expects the OFCCP’s number of audits to “nearly double,” with its compensation discrimination evaluations “morphing” into investigations into discriminatory job steering, promotions and job training.
The final item on the OFCCP’s current regulatory agenda is a proposed rule to update affirmative action requirements for federal and federally assisted construction contractors and subcontractors.
According to the DOL’s spring 2016 semiannual regulatory agenda, which was released in May, that proposal is expected this month.
The OFCCP’s existing construction contractor regulations under Executive Order 11,246 rely on census data from the 1970s in setting hiring goals for women and minorities. Efforts to update the rule have been in the works at the OFCCP since at least 2009.
The proposed rule wasn’t mentioned in the OFCCP’s FY 17 budget justification, leading to speculation that the agency wouldn’t issue the proposed rule, which the DOL denied.
Fox repeated that speculation and said the construction contractor proposed rule is “probably dead” at this point.
He said the OFCCP would have less than five months to finalize that rule, which has yet to be proposed, before a new president takes office.
The new president potentially can stop any rules that haven’t been publicly published for 30 full days prior to the inauguration, Fox said.
This means that the OFCCP would have to publish its last final rules on or before Dec. 21 so the rules would have the necessary 30 days to become “legally effective” before the new president is instated, he said.
Fox said he believes current OFCCP Director Patricia A. Shiu, a political appointee, will stay to the end of Obama’s term on Jan. 20.
Shiu’s “long legacy” at the OFCCP over the past seven years includes “the most prolific regulatory change” in the agency’s history, an emphasis on quality control for audits, and a continued focus on specialization, such as on statistical analysis, Fox said.
On Nov. 9, he said, the president-elect’s transition team will enter the Labor Department and “become a shadow government.” The team will figuratively “stand behind” Shiu’s desk and either “try to influence her decisions or do nothing.”
“Pat doesn’t have to yield to the transition team,” Fox said.
If Trump wins, the transition potentially could be rocky, he said. Although it may be smoother if Clinton wins, Fox added that “it’s always a tug-of-war even among friends.”
Phase II of the transition begins after the Jan. 20 inauguration, Fox said, with a career OFCCP official serving as an interim acting director pending the arrival of the new OFCCP director.
The interim director “will be under the thumb of the transition team,” he said.
Phase III, he said, will begin some time in 2017 after a new Labor Secretary is confirmed by the Senate and the new OFCCP director is appointed.
Fox said the typical time period for Phase III is five months, but he observed that Obama didn’t have his sub-cabinet appointments lined up quickly in 2009. For example, he said, Shiu was announced as OFCCP’s director in August of that year and didn’t assume the position until October.
To contact the reporter on this story: Jay-Anne B. Casuga in Charlotte, N.C., at jcasuga@bna.com
To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)