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Political battles in store regarding future of OFCCP, action on EEO-1 Report expected next month, NELI expert says

May 25th, 2017  |  Cynthia L. Hackerott  |  Add a Comment

Any proposed merger of the OFCCP into the EEOC will lead to an enormous political fight, that is going to be “battle royale,” attorney and former OFCCP official John C. Fox predicted during an OFCCP update webinar presented by the National Employment Law Institute (NELI) on May 18, 2017. During the webinar, Fox covered several topics regarding the OFCCP’s current status as well as how the likely demise of the compensation reporting requirement in the EEO-1 Report may occur.

Addressing media speculation that the Trump Administration plans to merge the OFCCP with the EEOC, Fox (President of Fox, Wang & Morgan, P.C. in Los Gatos, California) said “it very much appears” that this is the case, but, as of the day of the webinar, the details regarding the final shape of this plan were still being molded. The merger proposal was anticipated to be included in the White House’s budget proposal for fiscal year (FY) 2018, which on the date of the webinar was  expected to be released on Tuesday, May 23. (WK Note:  The White House did in fact release its FY 2018 budget proposal on May 23, and, as anticipated, the DOL budget detail (Appendix p. 749) and the DOL’s budget justification for the OFCCP does propose merging the OFCCP into the EEOC.)

Among the issues with merging the two agencies is the fact that the EEOC doesn’t have statutory authority to enforce Executive Order (EO) 11246, VEVRAA or Section 503 of the Rehab Act. While the non-discrimination requirements of the laws enforced by the OFCCP largely overlap with the those of the laws enforced by the EEOC, whether the affirmative action areas that are unique to OFCCP enforcement will stay within the DOL, be transferred to the EEOC, or be eliminated entirely, is still an issue, Fox explained. Any of these options would require some Congressional action as well as the President amending EO 11246, he pointed out. Currently, the EEOC does not have the authority to do many things that the OFCCP has, including bringing administrative actions to debar federal contractors.

In any event, Fox noted that the discussion of merging the two agencies is not a new thing, indeed, for the past 30 years, the possibility of such as merger has been discussed at the dawn of  every new administration.

Political battles ahead. The decision as to whether the OFCCP will survive lies almost entirely with Secretary of Labor Alexander Acosta, but OMB Director Mick Mulvaney and Attorney General Jeff Sessions will have some input as well, Fox said.

In November 2009, the Obama Administration eliminated the DOL’s Employment Standards Administration (ESA), but maintained the four component agencies previously under the ESA umbrella – the OFCCP, the Wage and Hour Division, the Office of Labor Management Standards and the Office of Workers’ Compensation Programs. Under the previous organizational structure, the Assistant Secretary for the ESA, not the heads of the four sub-agencies, had the authority to report directly to the Secretary of Labor. However, as a result of the 2009 reorganization, the heads of these four now stand-alone agencies report directly to the Secretary of Labor. Accordingly, in Fox’s opinion, anyone nominated to head these agencies must be confirmed by the Senate because they would be “Inferior Officers,” who report directly to Presidential appointees, within the meaning of the “Advise and Consent” clause of the U.S. Constitution.

If there is a confirmation hearing for a nominee to head the OFCCP, it will be politically contentious, Fox predicted, saying it would be a “monstrous battle.” Even if the new OFCCP head can be appointed without the advice and consent of the Senate, it is likely a new director will not be in place until mid-to-late 2017, Fox estimated.

Acosta, who became Labor Secretary on April 28, is moving slowly to install his new team, Fox reported, saying that the Secretary hasn’t started to move any people forward in the nomination process. In any event, Fox anticipates that the administration will decide to leave the position vacant, pending the outcome of any merger proposals as discussed above.

Because “Team Trump” has not yet arrived at the OFCCP to start steering it, the agency is continuing to follow the course it has been since the end of the Obama Administration, Fox stated. Under Interim Acting Director Tom Dowd, audits will continue to be few in number, with the primary focus continuing to be on compensation and failure to hire cases.

Restructuring timeline. On April 12, 2017 OMB Director Mick Mulvaney sent a memo to all federal Executive Branch agencies that lifted President Trump’s previously ordered hiring freeze (January 23 memo), and set forth a plan to reorganize and downsize the federal government. Among other things, Mulvaney instructed the agencies to begin taking immediate action to achieve near-term workforce reductions and cost savings, including planning for funding levels in the President’s FY 2018 Budget Blueprint released on March 16. Director Mulvaney is also looking at the possibility of restructuring by combining common functions from across numerous government departments, Fox said, including the possible merger of the OFCCP into the EEOC.

Pursuant to the April 12 OMB memo, the agencies are required to submit an initial, high-level draft reform plan to the OMB by June 30, 2017, and then submit their detailed restructuring plans by September 2017. Director Mulvaney anticipates publishing his finalized restructuring plan in January of 2018. The plan would then be implemented prior to the start of FY 2019, which means that if a merger of the OFCCP into the EEOC were to occur, it would begin between January 2018 and the fall of that year, Fox explained.

Agency may survive, but continue to dwindle. Even if the OFCCP survives this restructuring process, continued budget reductions will likely require the agency to further downsize its number of personnel and to close offices. With reduced staff and technology advances, onsite audits are only occurring about 5 percent of time at best, Fox observed, adding that the OFCCP doesn’t really need the number of brick and mortar establishments that is currently has throughout the county to function.

Factors weighing in favor of OFCCP survival include the fact that it’s not a “big dollar” agency compared to other DOL agencies, such as the Wage and Hour Division and the Employee Benefits Security Administration, which allows the OFCCP to  “hide in the grass.” Another factor is that most business leaders support the OFCCP’s mission, even while they may criticize its practices in carrying out that mission. The White House will be “stunned” as to how many Republican CEOs will vouch for the OFCCP, according to Fox. “CEOs want the OFCCP to be efficient, focused, and professionally run, not killed,” he said.

Expected withdrawal of compensation reporting addition to EEO-1 form. Meanwhile, whether and how the Trump Administration will withdraw the Obama Administration’s finalized changes to add the collection of summary pay data to the EEO-1 Report is still unsettled. While Fox is convinced that the new administration will do away with this recently-added reporting requirement, how that will occur remains to be seen. While both the OMB and the EEOC have the power to reverse course on the compensation reporting component, Fox notes that its demise will likely come from OMB Director Mulvaney, via his authority under the Paperwork Reduction Act, rather than the EEOC. According to Fox, he has it on good authority that the OMB will issue something regarding this topic next month (June 2017). The main reason the withdrawal isn’t likely to happen via the Commission is that it simply takes time for any President to get all his EEOC Commissioners in place, Fox explained. Given that, if it turns out to be the EEOC, rather than the OMB, who withdraws or revises the added compensation component, this likely won’t happen until the late Fall of 2017.

What should federal contractors do in meantime? Since the first deadline for this revised 2017 EEO-1 Report won’t be until March 31, 2018, contractors can simply sit back and patiently wait for the OMB or the EEOC to take action. Fox recommends that each employer should calculate its last “fail‐safe” day, i.e. the last date it must begin to prepare to report compensation, if the reporting requirement remains. He reports that most of his clients have determined their fail dates as falling in either January or February of 2018. Even if an employer calculates its fail safe date as early as November 2017, there is still time to wait, he notes.

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White House’s FY 2018 budget proposal calls for steep OFCCP funding decrease, merger into EEOC prior to FY 2019

May 24th, 2017  |  Cynthia L. Hackerott  |  Add a Comment

The White House’s FY 2018 budget proposal calls for a $17 million decrease in OFCCP funding and merger of the agency into the EEOC by the end of FY 2018. As for other FY 2018 actions, the budget proposal focuses heavily on compliance assistance, pay discrimination, and construction contractor compliance. In the budget proposal, released on May 23, 2017, the Trump Administration proposes $88 million in funding for the OFCCP, down from the current $105 million funding level. This funding level would include 440 full-time equivalent (FTE) employees, down from the current FY 2017 estimate of 571 FTEs. On top of reducing the overall number of FTEs, the agency would consider reducing the number of its field office locations.

Regarding the proposed merger, the Appendix section for the proposed DOL budget, at page 749, states: “The 2018 Budget proposes merging OFCCP into the Equal Employment Opportunity Commission (EEOC), creating one agency to combat employment discrimination. OFCCP and EEOC will work collaboratively to coordinate this transition to the EEOC by the end of FY 2018. This builds on the existing tradition of operational coordination between the two agencies. The transition of OFCCP and integration of these two agencies will reduce operational redundancies, promote efficiencies, improve services to citizens, and strengthen civil rights enforcement.”

Priorities. According to the DOL’s budget justification for the OFCCP, the budget request will enable the OFCCP to focus on the following priorities:

• Work collaboratively with the EEOC to develop and implement a plan to merge OFCCP into the EEOC by the end of FY 2018.

• Continue its focus on combating pay discrimination through intensive contractor compliance assistance aimed at educating contractors about their contractual obligations, supporting their voluntary compliance with those obligations, and conducting high quality compliance evaluations.

• Continue its focus on larger federal and federally-assisted construction projects that have the potential to employ large numbers of diverse workers.

The OFCCP anticipates that about 35 percent of its discrimination conciliation agreements will address systemic pay discrimination violations, and that at least 50 percent of construction compliance evaluations will be associated with large, high impact construction projects; this number reflects an increase from the 35 percent set in FY 2017.

Skilled Regional Centers. The proposed budget allows for the OFCCP to continue with its plaint to establish two Skilled Regional Centers located in the Pacific (San Francisco) and Northeast (New York) regions. These 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. In addition, they would reduce the need for a network of field area and district offices.

Merger plan. The merger plan calls for the OFCCP and the EEOC to establish a transition workgroup to strategically plan and implement the transition process throughout FY 2018. The proposed transfer of operations would touch upon every aspect of OFCCP’s operations including compliance evaluations, compliance assistance, policy, training, stakeholder outreach and education, personnel, contracting and procurement, and information technology.

Under the budget proposal, the OFCCP would focus much of its policy-related actions and activities on supporting the agency merger process in FY 2018. This includes policy and guidance development, stakeholder engagement (e.g., compliance assistance that support contractor voluntary compliance, and communication), and compliance officer training and education. These work priorities, slated to begin in FY 2018 include:

• Drafting and reviewing legislative proposals amending VEVRAA and Section 503 of the Rehab Act;

• Drafting and reviewing a new Executive Order amending EO 11246;

• Undertaking and/or assisting with the rulemaking required to implement the transfer of authority under Section 503, VEVRAA, and EO 11246;

• Finalizing the restructuring of its compliance officer training program;

• Assessing, in coordination with EEOC, a variety of policy and training requirements, such as investigator training programs;

• Developing a plan for integrating OFCCP’s Help Desk functions and EEOC’s system;

• Working with GAO and/or OIG to close-out pending audits and audit recommendations;

• Identifying, merging, and/or eliminating redundant information technology and procurement systems and/or contracts; and

• Creating an effective stakeholder communications strategy that can be used before and during the merger.

Of the OFCCP policy priorities that are not directly related to legally executing the transfer of enforcement authority, finalizing the training program’s framework and completing the Federal Contractor Compliance Manual are the most important, the DOL budget justification states.

The DOL’s press statement on the budget proposal does not mention the OFCCP at all.

Experts predict broad opposition to proposed merger. Both business groups and civil rights groups will strongly oppose the proposed merger, according to experts in the area.

“Not often have we seen such unanimity among civil rights groups, employee advocates, and business groups who are lining up to vocally oppose this proposal,” Mickey Silberman, a Principal in the Denver, Colorado, office of Jackson Lewis P.C. told Employment Law Daily in a May 23rd interview. Considering that the Republicans currently control the House and Senate the policy optics on this proposed merger are “wholly unfavorable,” he said. Prior to the release of the budget, the business community caught wind of the merger proposal and have already had significant discussions among themselves as to the matter, and are “squarely opposed” to it, Silberman reports.

Likewise, in an OFCCP update webinar presented by the National Employment Law Institute (NELI) on May 18, 2017, attorney and former OFCCP official John C. Fox stated that most business leaders support the OFCCP’s mission, even while they may criticize its practices in carrying out that mission. Accordingly, the White House will be “stunned” as to how many Republican CEOs will vouch for the OFCCP. “CEOs want the OFCCP to be efficient, focused, and professionally run, not killed,” he said.

The administration frames this proposed merger as an action that would reduce the federal budget, but the actual budget savings would not be significant, Silberman pointed out. The EEOC’s FY 2018 budget has not been reduced, and a merger of the two agencies would call for an increase to the EEOC’s FY 2019 budget. Even if the post-merger EEOC’s FY 2019 budget were increased by half of the $88 million allocated for the OFCCP in FY 2018, that $44 million dollar in savings “would be less than a drop in the bucket,” he noted.

Fear of “super EEO enforcement agency.” The White House also asserts that the merger will reduce compliance costs and burdens on business, but it will actually have the opposite effect, according to Silberman. Among the employer community, there has been a “quickly growing realization” that the proposed merger could result in a “super EEO enforcement agency” empowered by broader jurisdiction and the ability to impose greater remedies for non-compliance, he said. Because the interests of business would not be well-served, groups such as the U.S. Chamber of Commerce and the Institute for Workplace Equality will oppose this proposal, he added.

Required Congressional actions unlikely. Among the issues with merging the two agencies is the fact that the EEOC doesn’t have statutory authority to enforce EO 11246, VEVRAA or Section 503 of the Rehab Act. While the non-discrimination requirements of the laws enforced by the OFCCP largely overlap with the those of the laws enforced by the EEOC, whether the affirmative action areas that are unique to OFCCP enforcement will stay within the DOL, be transferred to the EEOC, or be eliminated entirely, is still an issue, Fox explained in the webinar. Any of these options would require some Congressional action as well as the President amending EO 11246, he pointed out. Currently, the EEOC does not have the authority to do many things that the OFCCP has, including bringing administrative actions to debar federal contractors.

As mentioned above, the DOL’s budget justification as to the OFCCP does call on the agency to draft and review: (1) legislative proposals to amend VEVRAA and Section 503; and (2) a new Executive Order amending EO 11246. In addition, the agency would need to draft/revise its EO 11246, VEVRAA, and Section 503 regulations to implement the transfer of authority. Notably, the budget proposal is silent on whether these changes to the laws enforced by the OFCCP and their implementing regulations would eliminate the affirmative action component of the OFCCP’s enforcement mission.

In the face of strong business community opposition to the proposal, the Republicans in the House and Senate are not likely to support the proposal, and thus, Congress will not undertake the necessary actions to effectuate the merger, Silberman predicts. It will be an “unpleasant surprise” for this administration to learn that business community is lined up in opposition to this plan, he stated.

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OFCCP continues to post FY 2017 settlements not publicized via agency press releases

May 18th, 2017  |  Cynthia L. Hackerott  |  Add a Comment

The OFCCP’s practice of posting online (via its Class Member Locator webpage and FOIA Reading Room) some conciliation agreements and consent decrees for which the agency did not issue a corresponding press release continues. The following is a listing of such agreements not previously reported in Employment Law Daily . In all of the cases listed below, the contractor did not admit liability.

Compass Group USA, Inc. Compass Group USA, Inc. (Compass), a hotel and hospitality services establishment, will pay a total of $29,921.16 to resolve allegations of hiring discrimination at its Morrison Sector @ Mobile Infirmary, #1055 facility located in Mobile, Alabama. Through a compliance review, the OFCCP determined that from March 1, 2012 through January 31, 2013, the federal contractor discriminated against 189 qualified black applicants who applied for “Service Worker” positions and were not hired. Under a conciliation  agreement, signed between February 15 and March 2, 2017, the contractor will also extend 8 job opportunities to eligible class members as positions become available.

John W. Stone Oil Distributor, LLC. In a conciliation agreement, signed between March 14 and 21, 2017, John W. Stone Oil Distributor, LLC, a company that supplies dockside, midstreaming and offshore fueling, agreed to pay $271,444 in back pay and $28,556 in interest to resolve allegations that it discriminated against 51 qualified minorities who applied for “Deckhand” positions at its Gretna, Louisiana, facility and were not hired. Pursuant to the agreement, JW Stone will also extend 10 job opportunities. The period of alleged discrimination is August 28, 2012 through August 27, 2014.

Land O’ Lakes, Inc. Settling allegations of gender-based pay discrimination at its facility in Shoreview, Minnesota, Land O’Lakes, Inc. has agreed to pay $42,000 to 14 female “Livestock Production Specialists” whom the OFCCP asserts, as of May 29, 2009, were paid less than their male counterparts. The OFCCP determined that there was a pay disparity through a multiple regression analysis. Workers in those positions sell feed and related products and, according to the agency, the pay disparity was caused by discriminatory duty assignments, sales incentive pay programs, and pay increases that negatively affected females. Under a conciliation agreement signed between March 6 and 20, 2017, Land O’ Lakes also agreed to revise relevant policies, and complete a regression analysis of compensation data as of December 31, 2016, for workers in the position at issue. In addition, the contractor will complete a study to evaluate whether promotion decisions, performance evaluations, work assignments, training opportunities, and transfer opportunities are having a disproportionately negative effect on pay equity.

Nebraska Medical Center. Nebraska Medical Center, a complex of hospitals, medical clinics and healthcare colleges, will pay $275,000 to resolve OFCCP allegations that it discriminated against 137 qualified black applicants who applied for “Psych/Clerk Patient Care Tech” and “Clerk/Patient Care Technicians (CNAs)” positions at the contractor’s Omaha, Nebraska facility. The agency alleges that this discrimination occurred from January 1, 2007 through June 30, 2008. Under a conciliation agreement, signed between April 28 and May 9, 2017, the contractor will also extend 23 job opportunities as well as review and evaluate policies affecting hiring selection process.

Oil State Skagit Smatco, LLC. Through a conciliation agreement signed February 8 and 15, 2017, Oil States Skagit Smatco, LLC has agreed to pay $65,000 in back pay and interest that it discriminated against minority applicants for “Mechanic I” positions at its Houma, Louisiana establishment between August 15, 2011 through April 4, 2013. The contractor, which provides offshore equipment and services, also agreed to extend job offers to seven eligible class members and remedy other specified deficiencies with its hiring process, including failing to maintain records, to set a placement goal, and to list job openings with the state workforce agency or local employment service delivery system as required under VEVRAA.

Setex Inc. Manufacturer Setex, Inc., will pay $293,760 to resolve hiring allegations against 63 qualified applicants for “Assembly Technician” positions at its Saint Mary’s, Ohio facility. The conciliation agreement, signed on May 1st and 2nd, 2017, also provides that Setex will extend job offers until 10 eligible class members are placed into the assembly technician positions and that the contractor will revise its selection procedures. The period of alleged discrimination is January 1, 2012 and December 31, 2013.

Sno–White Linen & Uniform Rental. Pursuant to a conciliation agreement signed April 17 and 20, 2017, Sno–White Linen & Uniform Rental, a privately owned industrial laundry and uniform rental company, will pay $90,000 to resolve allegations that it discriminated against 103 whites who were not hired into “Laborer” positions, and 15 whites and 8 females who were not hired into “Route Driver” positions at its Colorado Springs, Colorado facility. Sno–White has also agreed to extend 30 job offers to white class members for Laborer positions, as well as 3 job offers to white class members and 1 job offer to a female class member into the Route Driver position. The OFCCP alleges this discrimination occurred between November 2011 and July 2014.

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Paralift van drivers entitled to overtime pay because capacity of vans measured by present configuration

May 16th, 2017  |  Ron Miller  |  Add a Comment

Paralift van drivers successfully argued that they were entitled to overtime pay because the vehicles they operated were not exempt from FLSA overtime under the Motor Carrier Act exemption, ruled the Eighth Circuit. In LaCurtis v. Express Medical Transporters, Inc., the appeals court concluded that a district court correctly determined that the vans were not “designed or used to transport more than eight passengers” under Section 306(c) of the SAFETEA-LU Technical Corrections Act (TCA). As originally manufactured, the vans could accommodate either 12 or 15 passengers. However, they underwent significant modifications to be employed as wheelchair accessible vehicles. The vans weighed less than 10,000 pounds, and were presently configured to accommodate less than eight passengers (including the driver).

In this case, several paralift van drivers initiated separate actions seeking to recover overtime pay. Those cases were consolidated into this action. Although the drivers routinely worked more than 40 hours a week, their employer did not pay them overtime. It argued that the drivers were not eligible for overtime because the overtime provisions did not apply to any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service—commonly referred to as the Motor Carrier Act (MCA) exemption.

Design and use. The pivotal issue was whether the paralift vans in this case were “designed or used to transport more than 8 passengers” for purposes of Section 306 of the TCA. The vans were originally designed and manufactured to carry up to 12 and 15 passengers. They have a gross vehicle weight of 10,000 pounds or less. Before placing the vans in service, they were converted into paralift vans. The vans as configured have a maximum seating capacity of five and six passengers (two passengers in wheelchairs, and up to five additional passengers).

Motor carrier exemption. In 2008, Congress passed the SAFETEA-LU Technical Corrections Act (TCA), which narrowed the scope of the MCA exemption. Under the TCA, the FLSA overtime provisions “apply to a covered employee notwithstanding the MCA exemption.” The term “covered employee” means a driver or helper “whose work, in whole or in part,” affects “the safety of operation of motor vehicles weighing 10,000 pounds or less,” unless the vehicle is “designed or used to transport more than 8 passengers (including the driver) for compensation.”

Deference. The district court gave deference to U.S. Department of Labor Field Assistance Bulletin No. 2010-2 (FAB 2010-2) in which the agency announced that it would determine whether a vehicle is “designed or used to transport more than 8 passengers” “based on the vehicle’s current design and the vehicle capacity as found on the door jam plate.” Accordingly, the lower court concluded that wheelchair placement should count as one passenger, and decided that the employees were “covered employees” under TCA Section 306 because the paralift vans they drove had fewer than eight seats. It granted the employee’s motion for partial summary judgment on the issue of liability.

On appeal, the Eighth Circuit had to determine whether the district court erred in failing to give controlling deference to 49 C.F.R. Section 571.3(b)(1) in interpreting TCA, Section 306. It concluded that it did not. There was nothing in the record to indicate that either the Secretary of Transportation or the FMCSA had examined the TCA or weighed in on its meaning or its possible effect on the MCA exemption, much less said that the limited definition in Section 571.3(b)(1) should control the appeals court interpretation of the TCA. Accordingly, the district court did not err in declining to give controlling deference to Section 571.3(b)(1) in deciding the drivers were “covered employees” under TCA, Section 306.

Meaning of “designed.” Next, the appeals court had to determine if the paralift vans were “designed or used to transport more than 8 passengers.” Here, the appeals court gave “some deference” to the WHD interpretation in FAB 2010-2. The term “designed” is not defined in the TCA, and the statute lacks a “temporal qualifier” that would make the meaning clear as it relates to the dispute in this case. It found that the interpretations proposed by both parties were reasonable. However, it concluded that Congress did not intend for the term “designed” as used in TCA, Section 306(c) to be limited to a vehicle’s original design no matter what happened to the vehicle after its original design. Because the paralift vans could no longer accommodate more than seven passengers following modification, the district court’s judgment that the employer was liable for overtime pay was affirmed.

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Republican lawmakers warn HHS Secretary that memo may violate whistleblower protections

May 10th, 2017  |  Pamela Wolf  |  Add a Comment

Efforts to remind the Trump Administration about whistleblower protections are still ongoing—and it’s a bipartisan effort. Most recently, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) came down hard on the Department of Health and Human Services in response to a memo instructing employees to inform the agency before communicating independently with Congress. In a May 4 letter to Secretary Tom Price, the Republican leaders criticized the memo, calling it “potentially illegal and unconstitutional.” The Trump Administration has been called out on potential whistleblower issues since even before the inauguration, when federal agency Inspectors Generals were purportedly told to start looking for other employment.

In their letter to Secretary Price, the Senators reiterated the need for whistleblower protections and asked the Secretary to issue guidance clarifying that employees have the right to communicate “directly and independently with Congress.” Grassley and Chaffetz pointed out that the memo did not include an exception for “lawful, protected communications with Congress.” The Republican lawmakers expressed concern that in its current form, employees are likely to interpret the memo “as a prohibition, and will not necessarily understand their rights.”

“These provisions are significant because they ensure that attention can be brought to problems in the Executive Branch that need to be fixed,” the lawmakers wrote. “Protecting whistleblowers who courageously speak out is not a partisan issue—it is critical to the functioning of our government.”

“In order to correct this potential violation of federal law, we request that as soon as possible you issue specific written guidance to all agency employees making them aware of their right to communicate directly and independently with Congress. Such guidance should inform employees of the whistleblower protections that apply, and make clear that the agency will not retaliate against any employee who chooses to exercise these rights. Once you have issued this guidance, please provide the Committees with a copy.”

Still a problem … This is not the first time that warnings about whistleblower protections have been raised in response to actions taken under the Trump Administration. Following reports that federal employees had been ordered not to make outward-facing statements for public consumption, including through blogs and twitter accounts, the U.S. Office of Special Counsel (OSC) on January 25 released a statement detailing its enforcement of the anti-gag order provision in the WhistleblowerProtection Enhancement Act.

Amidst mounting concerns about retaliation against whistleblowers, House Committee on Oversight and Government Reform Ranking Member Elijah Cummings (D-Md.), in a January 25 interview on “Morning Joe,” expressed concern over the purported gag order imposed on federal employees at the direction of the Trump Administration. Cummings said that the Committee relies on whistleblowers and noted that there had been some confusion over whether whistleblowers can talk to Congress. Cummings assured federal employees that they can in fact talk to Congress and that the law protects then when they do so.

On February 1, Grassley, Chaffetz, and Government Operations Subcommittee Chairman Mark Meadows (R-N.C.) sent a letter to White House Counsel Donald McGahn, urging the Trump Administration to protect whistleblowers as a means of encouraging transparency throughout the federal government. “Whistleblowers can be one of the incoming Administration’s most powerful allies to identify waste, fraud, abuse, and mismanagement in the federal government and ‘drain the swamp’ in Washington, D.C.,” the Republican lawmakers wrote.

“The White House is in a position to alleviate any potential confusion for federal employees regarding whether … recent memoranda implicate whistleblower protection laws,” the Republican lawmakers suggested. “As the new Administration seeks to better understand what problems exist in this area, this is an appropriate time to remind employees about the value of protected disclosures to Congress and inspectors general in accordance with whistleblower protection laws.”

Earlier bid to remove Inspectors General. On January 31, Cummings and Gerald E. Connolly (D-Va.), Vice Ranking Member of the House Committee on Oversight and Government Reform, also sent a letter to McGahn. Cummings and Connolly requested information about what they called “disturbing reports that officials from the Trump Transition Team threatened to remove Inspectors General after the inauguration.” Inspectors General, of course are the formal “whistleblowers” of sorts who scrutinize federal agency actions.

The Inspector General Act of 1978, passed in the wake of the Watergate scandal, is aimed at ensuring integrity and accountability in the Executive Branch. The Act created independent and objective units to conduct and supervise audits and investigations related to agency programs and operations.

The Cummings and Connolly correspondence came in response to reports that on January 13, Trump officials from various federal agencies engaged in what was seen as a coordinated campaign to “inform” Inspectors General that their positions were “temporary.” Several Inspectors General were purportedly informed that they should begin looking for other employment. Following a number of urgent calls, some of the Inspectors General were informed that the action had been overruled by more senior officials and never should have occurred, but there was no official communication in confirmation.

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