About Us  |  About Cheetah®  |  Contact Us


ARB denies JPMorgan Chase’s request for interlocutory review of ALJ’s refusal to dismiss OFCCP claims of sex bias in pay practices

October 30th, 2017  |  Published in Blog

Concluding that there were no exceptional circumstances warranting mandamus or other means of interlocutory review, a DOL Administrative Review Board (ARB or Board) panel denied JPMorgan Chase & Co.’s petition for interlocutory review of an ALJ’s refusal to dismiss an action in which the OFCCP alleges that the bank discriminated against female employees in certain professional positions by compensating them less than their male counterparts. The panel found that JPMorgan failed to establish any basis for departing from the Board’s general rule against accepting interlocutory appeals. (OFCCP v. JPMorgan Chase & Co, October 5, 2017, slip op)

Pay bias allegations. In January 2017, the OFCCP filed a complaint with the DOL’s Office of Administrative Law Judges (OALJ) alleging that the bank discriminated against female employees in certain professional positions by compensating them less than their male counterparts (DOL ALJ Case No 2017-OFC-007). As the result of a compliance review, the OFCCP concluded that, since at least May 15, 2012, JPMorgan paid at least 93 females employed in Application Developer Lead II, Application Developer Lead V, Project Manager and Technology Director positions within its Investment Bank, Technology & Market Strategies unit, less than comparable men employed in these same positions. This compensation disparity remained after adjusting for differences in legitimate compensation-determining factors, the agency maintains in a January 18, 2017 press release announcing the suit.

The OFCCP also claims that JPMorgan failed to evaluate the compensation systems applicable to these employees and that the bank had an “insufficient affirmative action plan” in that it failed to perform the type of in-depth analysis of its employment practices required by Executive Order (EO) 11246 and its implementing regulations.

The ALJ denied JPMorgan’s motion to dismiss the administrative complaint for failure to state a claim, rejecting the bank’s assertion that the plausibility standard for stating a claim under Fed. R. Civ. P. 8 as set forth in the U.S. Supreme Court’s rulings in Ashcroft v. Iqbal (2009) and Bell Atlantic Corp. v. Twombly, (2007) (Iqbal/Twombly)applies to OFCCP administrative complaints and was not satisfied by the complaint in this case. In addition, the ALJ denied JPMorgan’s motion for reconsideration as well as  its subsequent request to certify the issue for interlocutory review by the ARB as provided by 28 U.S.C. § 1292(b). Nevertheless, JPMorgan filed a petition for interlocutory review with the ARB.

Regulatory mechanism for interlocutory review lacking. As a preliminary matter, the ARB panel found that the OFCCP’s regulations at 41 C.F.R. Part 60-30 (“Rules of Practice for Administrative Proceedings to Enforce Equal Opportunity under Executive Order 11246”), and the cases interpreting them (including the Seventh Circuit’s 1978 ruling in Uniroyal, Inc. v. Marshall and the Secretary’s subsequent ruling in U.S. Department of the Treasury v. Harris Trust & Savings Bank, OALJ No. 1978-OFCCP-002, May 10, 1979), do not provide a mechanism for interlocutory review in EO 11246 administrative proceedings. The regulations in two separate locations41 C.F.R. § 60-30.19(b) and 41 C.F.R. § 60-30.28—provide for the filing of exceptions with the ARB, but only after receipt of the ALJ’s recommended decision.

However, the ARB panel explained that the Secretary of Labor has delegated to the Board, via Secretary’s Order No. 02-2012 § 5(c)(13), the authority to issue final agency decisions upon appeals of decisions of DOL ALJs in cases arising under EO 11246. That order explicitly provides that the ARB may accept interlocutory appeals in “exceptional” circumstances, but it is not their general practice to accept petitions for review of non-final dispositions issued by an ALJ. The Secretary of Labor and the Board have held many times that interlocutory appeals are generally disfavored and that there is a strong policy against piecemeal appeals, the ARB panel here noted. Importantly, the Secretary of Labor noted in the 1993 ruling in OFCCP v. Honeywell, Inc. (OALJ No. 1977-OFCCP-003; June 2, 1993) that the Secretary has never reconciled the language of the regulations with Secretary’s Order No. 02-2012, the ARB panel pointed out.

“Exceptional circumstances” also lacking. Therefore, the ARB assessed whether there were any “exceptional circumstances” warranting interlocutory review under its delegated authority. When a party seeks interlocutory review of an ALJ’s non-final order, the ARB has generally followed one or more of three different approaches for determining what might constitute “exceptional circumstances.”  Here, the court analyzed the three most common approaches, as well a fourth approach advanced by JPMorgan—a writ of mandamus.

The first approach is contained in the interlocutory review procedures at 28 U.S.C. Section 1292(b), which provides for certification of issues involving a controlling question of law as to which there is substantial ground for difference of opinion, an immediate appeal of which would materially advance the ultimate termination of the litigation. But the bank conceded that because the ALJ’s order denying its motion to certify the question of law it raised (failure to state a claim) was not the type of interlocutory order from which an appeal may not be taken pursuant to Section 1292(b).

JPMorgan did not address or argue as to the second approach, consideration of an interlocutory order meeting the ‘collateral order’ exception to finality that the Supreme Court recognized in Cohen v. Beneficial Indus. Loan Corp. (1949). The ARB assumed the bank did not advance this approach because the ALJ’s denial of its motion to dismiss does not involve a collateral order given that the order at issue here was plainly is not separate from the merits.

The third approach was derived from the Secretary of Labor’s ruling in Honeywell, Inc., where the Secretary accepted and ruled on an interlocutory appeal in an EO 11246 case because that unusual case involved many threshold procedural and substantive issues of interpretation of EO 11246 and the parties did not object to the Secretary’s review of the ALJ’s order as an interlocutory appeal. The ARB panel also noted that the Secretary reviewed the interlocutory appeal in Honeywell because it involved threshold legal issues the resolution of which would encourage the parties to engage in voluntary mediation. That was not the case here, the ARB panel stated, noting further that the OFCCP does object to this interlocutory appeal.

Turning to the approach advanced by JPMorgan, the ARB panel first noted that the Secretary’s Order (cited above) delegating authority to the ARB to issue final agency decisions in cases arising under EO 112463 does not specifically delegate mandamus authority to the Board, and the ARB has thus far declined to decide the issue or recognize such authority.

Mandamus authority, even if available, not warranted. Even if mandamus authority were available, the ARB panel found that JPMorgan failed to demonstrate that such review was warranted here. The bank had not demonstrated that the circumstances existed in this case to satisfy the criteria set forth in the U.S. Supreme Court’s 2004 ruling in Cheney v. U.S. District Court for the District of Columbia to warrant interlocutory review through a writ of mandamus. In Cheney, the High Court held that the party seeking such review must meet three criteria: (1) it must have no other adequate means to attain the desired relief,  (2) it must show that its right to issuance of the writ is “‘clear and indisputable,’” and (3) the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

Since the ALJ denied JPMorgan’s request to certify the issue for interlocutory review, the third criteria was not applicable here. As to the first criteria, although the bank asserted that there is no alternative means to address the ALJ’s denial of its motion to dismiss for a failure to state a claim given that an appeal after discovery and an adjudication on the merits would be futile, it is not uncommon for courts to deny interlocutory review of motions to dismiss, the ARB observed. Second, JPMorgan failed to show that it has a “clear and indisputable” right to issuance of the writ. The ALJ’s rationale in denying the bank’s motion to dismissthat the regulations at 41 C.F.R. § 60-30.5(b) provide an applicable pleading standard for OFCCP complaints filed pursuant to EO 11246was a reasonable interpretation, the ARB panel found. [Wolters Kluwer note: the standard at 41 C.F.R. § 60-30.5(b) is comparable to the “fair notice” standard for pleading in civil rights sanctioned by the U.S. Supreme Court in its 2002 ruling in Swierkiewicz v Sorema NA].

Accordingly, the ARB panel denied JPMorgan’s petition for interlocutory review remanded the case back to the ALJ for further proceedings.

The green-eyed monster at work: when does jealousy become unlawful discrimination?

October 25th, 2017  |  Published in Blog

By Lorene D. Park, J.D.

What happens when a good employee, through no fault of her own, is fired because her boss’s jealous wife doesn’t want him working with her? Is that sex discrimination? The answer is that it depends on whether the jealousy is really because of gender. Arguably, the only reason for the jealousy is because of the potential for a romantic relationship due to the employee’s status as a member of the opposite sex, but courts don’t necessarily see it this way. In some cases, it simply depends on whether it was the employee in particular who was the focus of the jealousy (due to a friendship or other consensual relationship) or whether all individuals of the same gender would have also been targeted. To those courts, only the latter case would be unlawful discrimination.

Wife jealous of all women. For example, in an October 2, 2017 decision, a federal court in Pennsylvania refused to dismiss Title VII and state law claims by a trucking company’s female service operations manager who was treated differently than male colleagues and fired because the company president’s wife did not want him working with women. The president had avoided eye contact and excluded the plaintiff from meetings and directed her subordinates to relay important information to her. She was also told that she was no longer allowed to go into the president’s office or to address him directly in the workplace, including by email.

The employer claimed it could lawfully fire an employee due to spousal jealousy, but the court was unconvinced. It noted that neither the Third Circuit nor the U.S. Supreme Court have spoken directly on this issue, but other courts that have found spousal jealousy to be a lawful reason for firing have done so “only where the spouse was jealous of a particular individual, not where the spouse was jealous of an entire sex.” With this in mind, the court concluded that jealousy is not a lawful explanation for an adverse employment action if it encompasses the entire gender, as appeared to be the case here (Sztroin v. PennWest Industrial Truck, LLC).

Based on relationship or gender? This is not the only court that has appeared to distinguish between an employment decision based on a personal relationship (e.g., jealous of a particular individual) and a decision truly based on gender. For example, in an older case out of Iowa, a long-time dental hygienist developed a friendship with the dentist, who she considered to be a father figure, and they would exchange texts after hours (mostly about their kids). However, there was some indication that he was attracted to her (he complained to her that her clothing was too tight and “distracting”) and after his wife became jealous, the hygienist was fired. Affirming summary judgment against her sex discrimination claim, the state’s highest court concluded that it was not unlawful gender discrimination to fire the hygienist because the wife “unfairly or not, viewed her as a threat to her marriage.” The court noted that the employee was replaced by a female and that all of the dentist’s assistants were female, only the plaintiff was the subject of the wife’s jealousy (Nelson v. James H. Knight DDS ).

Sexual attraction to “cute” employee is gender based. In other cases, courts have found that jealousy directed at a particular individual is gender-based when it involves sexual attraction. For example, a New York appeals court held that firing an employee due to jealousy by the boss’s wife could be actionable under state and city law. The husband and wife owned a chiropractic and wellness company and the plaintiff was a yoga and massage therapist. Though the boss praised her performance and she claimed their relationship was “purely professional,” he also allegedly told her that his wife might become jealous because she was “too cute.” About four months later, the wife sent the plaintiff a text message in the middle of the night stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” Later that morning, she received an email from the husband stating that she was fired.

Reversing the dismissal of her sex discrimination claim, the state appeals court found that she alleged facts from which it could be inferred that the husband and wife were motivated to fire her by the wife’s jealousy and belief that her husband was sexually attracted to the plaintiff. This was related to gender, noted the court, and “a discharge is actionable if the spouse urged the discharge for unlawful, gender-related reasons” (Edwards v. Nicolai).

But for her status as a woman . . . It’s hard not to compare these jealousy cases to other contexts, in which courts must decide if an atypical fact pattern involves discrimination “because of” gender. In one recent case, an employee’s supervisor, who was also the CEO’s mother, repeatedly pressured the employee to marry the CEO and became angry when she married someone else. Thereafter, she criticized the employee’s performance and spread rumors about her. Based on this, a reasonable jury could find that, “but for her status as a woman,” the employee would not have been subjected to the offensive conduct, ruled a federal court in Maryland, denying the employer’s motion for summary judgment (Allen v. TV One, LLC).

Had the courts in the jealousy cases applied the same reasoning, the results of some might have been different. But for the female employees’ status as women, their bosses’ wives would not have been jealous and they would not have been fired, right? Food for thought.

So when is jealousy-based decisionmaking unlawful? For now, and depending on the jurisdiction of course, courts are more likely to find that adverse actions prompted by jealous decisionmakers or spouses constitute unlawful sex discrimination if the jealousy is directed at an entire gender. They are also more likely to find discrimination if there is evidence of sexual attraction, even if there are no allegations of sexual harassment or quid pro quo demands.

The heartbreaking sadness of sexual harassment

October 18th, 2017  |  Published in Blog

By Joy P. Waltemath, J.D.

Amazon Studios executive Roy Price. Harvey Weinstein. Before that Bill O’Reilly. Roger Ailes. The news is all about sexual harassment allegations in tech, in Hollywood, among the movers and shakers in this world. #MeToo (a hashtag for women who have been sexually harassed or assaulted) currently is trending on Twitter (although I’ve read that as a movement, it’s been around for about a decade). Sexual harassment is again getting its 15 minutes of fame; it’s not the first time.

I last blogged about sexual harassment in April, back when the Bill O’Reilly allegations were receiving significant media attention. But what I’ve been thinking about lately is not the viral outrage, nor the media attention, that is currently on display, but instead a small, sad case that involved two women working at a hotel in a central Florida city not known for tourism.

One woman was Filipino; she worked in housekeeping. The other was white; she worked the hotel’s breakfast bar. Both were hired and ultimately fired by the hotel’s general manager, who also held an ownership interest in the business. The reason I mention the race/national origin of these women is that the general manager, an Indian male, apparently believed it was important.

The housekeeper. The women’s sexual harassment allegations withstood a motion for summary judgment filed by the company that owned and ran the hotel. According to her testimony, throughout the Filipino worker’s three years of employment, the general manager allegedly threatened her with the loss of her job, her family, and her husband—and with being sent back to the Philippines—if she did not give him oral sex and have sexual intercourse with him. Since she was Filipino, the general manager allegedly said she should be forced to have sex with Indian men, whom he claimed were “superior.” She said she was afraid of him physically and because of his position; he said if she reported him, she would be in “big trouble” because he was the “big boss,” powerful, and he could do anything he wanted, including preventing her from finding another job. She gave in to his increasing demands, including forced sex with the general manager and another man, because she said she could not risk losing her job.

The breakfast bar worker. After the breakfast bar worker was hired (two years after the housekeeper was hired), the general manager allegedly forced the two women to engage in group sex with him. He repeatedly told the breakfast bar worker that because she was local “white trash,” she should give him oral sex or have intercourse with him, she testified. If she did not, he threatened her with termination, but if she gave in, he rewarded her with extra hours. He allegedly told her that white women were lazy, stupid, and garbage, that his Indian investors would dominate the “white trash” who lived in their town, that she was white trash and only good for providing sex to powerful men like him, and that he could do what he wanted because he had power and money. She was afraid to tell anyone about the general manager’s behavior because she said she needed to keep her job, and he told her she would never work again if she complained.

But once there were two of them … The housekeeper testified that once she knew that the breakfast bar worker, who was also being sexually abused, was a witness to the general manager’s behavior, she felt more powerful. As a result, she then refused his demand for sex; he yelled at her and she slapped his face; he fired her. And as the general manager’s alleged demands for sex with the breakfast bar worker increased (he demanded that she have sex with “him and his friends” and also demanded anal sex), she too refused, telling him that what he was doing was illegal. He fired her too. Both women, in fact, alleged that they were fired after refusing oral sex.

They lost their jobs anyway. Notably, by the time the hotel’s summary judgment motion was heard, the general manager had settled with the women and was no longer part of the litigation. The hotel’s defense was to claim that Faragher/Ellerth affirmative defense applied, but the court said no. There were obviously tangible employment actions here—both women were fired—which meant the defense didn’t apply. Plus, it looked to the court like there was substantial record evidence that the general manager acted as an “alter ego” of the hotel, holding a high-level position as an owner and general manager, to render the hotel strictly liable for his behavior.

Were their objections enough? The women’s retaliation claims were straightforward; they said once they refused oral sex, they each got fired—as the general manager had threatened. The hotel argued that it was entitled to summary judgment anyway because their rejection of the general manager’s sexual advances was not “protected activity” under Title VII. And, while there is a circuit split as to whether someone who rejects a supervisor’s sexual advances actually has engaged in protected activity (the Eleventh Circuit has yet to weigh in), the court here agreed with the Sixth Circuit’s reasoning in EEOC v. New Breed Logistics that if an employee demands that her supervisor stop engaging in unlawful harassment by resisting or confronting the supervisor’s unlawful harassment, “the opposition clause’s broad language confers protection to this conduct.”

Think about this. This case is a reminder that sexual harassment is about power. These women believed that they had so few options, so little relative power, that they needed to submit to sex with their boss to keep their jobs as a housekeeper and a breakfast bar worker. Not their jobs at a television network. Not to get good work in Hollywood. Not to have a career in Silicon Valley. Not to work in BigLaw.

Have you ever been that powerless? Can you even imagine what your world would be like if this were your best option?

I worry sometimes that the Tinseltown trappings or high-profile defendants featured in what seem like ever-breaking “big name” sexual harassment allegations allow us to distance ourselves from the heartbreaking sadness of forced sexual encounters in vacant hotel rooms faced by these otherwise invisible women. When I think about sexual harassment, I want also to remember them.

The case is Charest v. Sunny-Aakash, LLC (M.D. Fla., September 20, 2017).

Off-duty police sergeant’s assault of woman at bar justified termination

October 12th, 2017  |  Published in Blog

One night, a 12-year, off-duty police sergeant was arrested and charged with third and fifth degree assault of a female following an evening of drinking at a bar. He was arrested after three witnesses identified him as the assailant. The victim suffered bruises, cuts, and abrasions. An employer investigation concluded that he was at fault, and the employer terminated him. He filed a grievance.

Subsequently, the sergeant was tried on the assault charges in criminal court, and he was acquitted. His successful defense had been based on the theory that his sister was the actual assailant. His acquittal in criminal court raised the question: Did the acquittal negate the employer’s conclusion that he was responsible for the assault? As a result, was he entitled to reinstatement following acquittal?

The arbitrator began by noting that arbitrations and criminal cases operate under different standards of proof. In the criminal trial, the standard of proof was beyond a reasonable doubt. In an arbitration involving termination, however, the standard of proof was clear and convincing evidence. The two standards, the arbitrator said, are not the same, although they are often equated.

The arbitrator, therefore, undertook his own analysis of whether the evidence established clear and convincing proof that the sergeant committed the assault. Direct evidence, which was unrebutted, implicated the officer. The sister testified, on the other hand, that she did not know how the woman received her injuries. The arbitrator characterized testimony from others supporting the officer as inconsistent and unreliable. As a result, the arbitrator concluded that this was an arbitration in which the facts established clear and convincing evidence of guilt, even if they did not establish proof beyond a reasonable doubt of criminal conduct. The arbitrator, therefore, was not bound by the acquittal, and he ruled that the employer had just cause to terminate. State of Minnesota Department of Corrections MCF-Rush City and AFSCME Council 5. July 15, 2017. A. Ray McCoy.

Successor liability for labor and employment violations depends on continuity and notice

October 2nd, 2017  |  Published in Blog

By Lorene D. Park, J.D.

No matter how cleverly a purchase agreement is drafted to avoid the assumption of liabilities, successor companies that have purchased another company may find themselves liable for the predecessor’s labor and employment law violations. Generally, courts consider three things in deciding whether to hold a successor company liable:

  1. Continuity in operations and work force of successor and predecessor employers. Were there changes in staff, office space, equipment, or working conditions? What was the pre-purchase relationship of the parties?
  2. Notice to the successor-employer of the predecessor’s legal obligation.
  3. The ability of the predecessor to provide adequate relief. Is the predecessor defunct?

Importantly, notice may include “constructive notice,” and successors can’t avoid liability by purposefully burying their heads in the sand. As the examples below suggest, courts generally see through this and other clever machinations designed to avoid liability. Before getting to that, however, it bears mentioning that there is some variation by jurisdiction in how the analysis plays out, including the development of a federal common law test that sets a lower bar for liability than the traditional common law test.

Traditional common law vs federal common law

A federal court in New York recently explained the development of the federal test. Under the traditional common law, a corporation that purchases another’s assets is generally not liable for the seller’s liabilities. Some states recognize exceptions for: (1) a buyer who formally assumes a seller’s debts; (2) transactions made to defraud creditors; (3) a buyer who de facto merged with a seller; and (4) a buyer that is a “mere continuation of a seller.” Courts have held that the latter two are “so similar that they may be considered a single exception” (Wang v. Abumi Sushi Inc. dba Abumi Sushi).

As for federal law, most employment statutes do not discuss whether liability may be passed to innocent successor employers, explained the Wang court. However, beginning with NLRA cases, federal courts developed a “substantial continuity” test, which sets “a lower bar to relief than most state jurisprudence” (it doesn’t require continuity of ownership), and was designed to impose liability on successors when necessary to protect important employment-related policies.

So how does this play out? Consider two cases with different outcomes, both focusing largely on whether the purchaser had notice, or “constructive notice” of potential liability.

Playing ostrich won’t preclude notice

In the first case, a debt collection law firm purchased a failing debt collection firm for $15,000. The successor admitted discussing some of the failing firm’s litigation but denied knowing of an employee’s sexual harassment claim until it was named as a defendant in her Title VII suit. Denying the successor’s motion for summary judgment, a federal court in New Hampshire explained that the principal reason for imposing a notice requirement is to ensure fairness by giving a successor “the opportunity to protect against potential liability through the negotiation process.” That purpose is not served if prospective liabilities could be shed simply by “playing ostrich,” the court averred, and here, the purchasers appeared to be engaging in an unspoken but mutually understood game of “don’t ask, don’t tell.”

Noting that precedent is unsettled on whether constructive notice is enough to establish successor liability, the court nonetheless applied the standard here. It explained that the purchasers were sophisticated attorneys. Also, the successor firm had, months before the purchase, hired an individual who was involved in the mediation of the employee’s sexual harassment claim before the EEOC. He testified that he did not discuss her claim with the successor, but the court was unconvinced, particularly since only a cursory review of the predecessor’s records would disclose the suit. The court also found substantial “business continuity.” The successor was using the predecessor’s office, hired most of its former employees, and now performs services for many of the same clients. Indeed, the modest purchase price of $15,000 was more suggestive of a de facto merger than a purchase, in the court’s view (Kratz v. Boudreau & Associates, LLC).

No notice, no liability

In the Wang case, the successor owner of a Japanese restaurant in New York was granted summary judgment against alleged FLSA violations that occurred before it was the plaintiff’s employer. The purchase agreement stated that the new owner bought the stock in trade, good will, and other assets “free and clear” of any debts or encumbrances, and there was no assumption of liabilities. Also, a rider represented that “the business sold herein is being operated in accordance with all laws, ordinances and rules affecting said business.” Nonetheless, a delivery worker employed by both the predecessor and successor claimed both should be liable for wage and hour violations that happened before the restaurant changed hands (subsequent alleged violations were not addressed by the motion).

Disagreeing, the court explained that the employee presented no evidence that the new owner had notice of the lawsuit or of the alleged violations giving rise to the suit. The court rejected the employee’s expansive view of constructive notice, which would impute notice of a predecessor’s violations on an innocent purchaser whenever the violations could have been discovered through diligence. That would “effectively create a duty of due diligence, which in the Court’s view should be imposed by Congress, or at least the Second Circuit, in the first instance.”

In discussing whether the federal “substantial continuity” test applied to FLSA cases, the Wang court noted that the Second Circuit has not yet weighed in. However, other Circuits have applied it in FLSA cases, including the Third, Seventh, Ninth, and Eleventh. Here, the Wang court found that the claim failed under both the traditional common law and the federal test. The lack of notice and the ability of the predecessor to provide relief were critical factors in this case, particular considering the goal of striking a proper balance between (1) preventing wrongdoers from escaping liability, and (2) facilitating the transfer of corporate assets to their most valuable users. To hold a purchaser of assets liable as a successor without notice of the potential liability, or where the predecessor is capable of providing relief to the wronged party—simply because it retained substantially the same work force to conduct a substantially similar business—would directly hamper the transfer of corporate assets to their most valuable users, said the court.

Cases where continuity is key

Purchase as a going concern. While the first two examples focused on whether the successor had notice of a claim so as to impose successor liability for a predecessor’s violations of labor and employment laws, the continuity of operations (office, equipment, business model, customers, etc.) is key in other cases.

For example, a company that purchased a troubled business as a going concern could not avoid WARN Act liability through clever drafting of the purchase agreement. Though the asset purchase agreement was written so the purchaser, Celadon Trucking, would avoid WARN Act requirements (stating that non-hired drivers “shall not be deemed . . . employees” of Celadon, that it would not be responsible for the predecessor’s “liabilities or obligations,” including under the Act), the Eighth Circuit affirmed a district court’s ruling that, because the company was purchased as a “going concern,” the laid-off individuals were Celadon’s “employees,” and it was liable for failing to give 60 days’ notice of a mass layoff. The appeals court also found that Celadon could not reduce any damages through the good faith defense (Day v. Celadon Trucking Services, Inc.).

Cherry-picking workforce. Continuity of operations is also key in cases where a purchaser allegedly tries to avoid legal obligations under employment laws by cherry-picking which of the predecessor’s employees to hire or retain after a purchase. In such cases, a court might find the purchaser was a “successor employer” and the refusal to hire was done for an unlawful purpose.

For example, purchasers have been held to be successor employers under ADA, liable for discriminatorily refusing to hire the predecessor’s disabled workers. In one case, a federal court in Florida upheld punitive damages against a successor based on a jury’s finding that it acted with malice or reckless indifference in refusing to a predecessor’s employee who had just taken FMLA leave due to cerebral meningitis. Though the employer claimed she failed to fill out application materials, she testified that she was informed by an employee of the successor, on the very day it assumed operations, that she was rejected due to excessive medical leave. This and other evidence raised a reasonable inference that the successor “used the transition . . . as a ruse to rid itself of certain employees under the guise of declining to offer employment,” said the court (Noel v. Terrace of St. Cloud, LLC).

Bringing work in-house, going non-union. In another case, the District of Columbia Circuit agreed with the NLRB that CNN was a successor employer to outside contractors that it had for years used to provide technicians to operate the electronic equipment at its New York City and Washington, D.C., bureaus. CNN did not contend that it made a significant change in the essential nature of the contractor’s operations; basically, it continued the same operations with employees who performed the same work, at the same locations, using the same equipment. The only question was whether the majority of CNN’s employees were previously employed by the contractor. Here, the overwhelming evidence of anti-union animus on CNN’s part led the Board to presume that a majority of incumbent employees would have been hired but for CNN’s discriminatory hiring practices. In the appellate court’s view, it was reasonable for the Board to infer that CNN planned to hire a sufficient number of former contractor employees to lend an air of impartiality, while avoiding the number that would impose a bargaining obligation. By replacing a unionized contract with a nonunion, in-house workforce, CNN violated the NLRA (NLRB v. CNN America, Inc.).

Successor bar doctrine – let dust settle before challenging union’s majority status. Cherry-picking a workforce is not the only way successor companies have tried to avoid collective bargaining. In an April 2017 opinion authored by retired Supreme Court Justice Souter, the First Circuit found that the NLRB properly applied its successor bar doctrine, under which an incumbent union is entitled to represent a successor employer’s employees for a reasonable period of time (not less than six months) before its majority status may be questioned. In the case at issue, Lily Transportation took over part of a bankrupt employer’s business that distributed parts for Toyota, and the incumbent union soon demanded to be recognized as the drivers’ bargaining rep. Refusing, Lily produced signed statements it claimed were from a majority of drivers saying that they no longer wished to be represented by the union. A law judge found that the company was a “successor employer” because it made a “conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor.” Applying the successor bar, the Board found that Lily unlawfully refused to bargain with the union (NLRB v. Lily Transportation Corp.).

You might as well be diligent

The take-away from these cases is fairly clear—courts will not let a purchaser avoid compliance with, or liability under, labor and employment laws through clever contractual language, purposeful ignorance of pending claims, or cherry-picking a workforce. As a consequence, purchasers are well advised to do their due diligence, uncover all the skeletons in the closet, and either factor potential liabilities into the purchase price or walk away.

Upheaval caused by recent hurricanes leads to temporary exemptions/waivers of written AAP requirements, extension of VETS-4212 reporting deadline

September 26th, 2017  |  Published in Blog

Two DOL agencies have modified some government contractor obligations in light of the turmoil resulting from recent hurricanes. First, federal contractors who file their VETS-4212 Reports by November 15, 2017 will not be cited for failure to file a timely VETS-4212 Report or failure to comply with federal regulations, an announcement the DOL’s Veterans’ Employment and Training Service (VETS) webpage for VETS-4212 Federal Contractor Reporting states. The announcement clarifies that it applies to all federal contractors. Second, in light of “the special circumstances in the national interest” presented by the destruction caused by recent hurricanes, OFCCP Acting Director/Deputy Director Thomas M. Dowd has granted, in regard to Hurricanes Irma and Maria, additional limited exemptions and waivers relating to the requirements to develop written affirmative action programs (AAPs) under the laws administered by the OFCCP on top of the one he issued on August 31 as to Hurricane Harvey.

VETS-4212 Reporting. The VETS-4212 reporting cycle for 2017 began as usual on August 1. The filing deadline technically remains September 30 per VETS regulations at 41 CFR Section 61-300.10(c); however, as the announcement indicates, the agency, in order to accommodate the needs of those impacted by Hurricanes Harvey and Irma, is using its discretionary authority to allow late reporting by November 15.

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), 38 USC Section 4212(d), requires federal contractors and subcontractors subject to the Act’s affirmative action provisions in 38 USC Section 4212(a) to track and report annually to the Secretary of Labor the number of employees and new hires that are covered veterans, by job category and hiring location, who belong to the specified categories of veterans protected under the statute. Under the most recent amendments to the statute, those categories are: (1) disabled veterans; (2) veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized; (3) veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 FR 1209); and (4) recently separated veterans (veterans within 36 months from discharge or release from active duty). The reporting form for this requirement is administered by VETS, and generally, the reporting cycle begins annually on or around August 1 and ends September 30. The coverage threshold for contracts entered into on or after October 1, 2015 is $150,000; for contracts entered into prior to October 1, 2015, the coverage threshold is $100,000.

Reporting period. To determine the “reporting period” for the purposes of completing the VETS-4212 Reports, the contractor must first select a date in the current year between July 1 and August 31 that represents the end of a payroll period. The 12-month period preceding the selected payroll period ending date is the 12-month reporting period. Item 14 of the DOL’s updated FAQ regarding the report clarifies that “[a] contractor that has approval from the [EEOC] to use December 31 as the ending date for the EEO-1 Report may also use December 31 as the ending date for the payroll period selected for the VETS-4212 Reports” (see also, VETS regulations at 41 CFR § 61-300(d)(2)). This will allow contractors to keep in-line with current EEO-1 Reporting requirements, which, pursuant to a September 15, 2017 EEOC notice in the Federal Register (82 FR 43362-43363), provide that employers should count employees during a “workforce snapshot period” between October 1 and December 31, 2017 for the 2017 EEO-1 Report due by March 31, 2018.

Temporary waiver of written AAP requirements. In light of “the special circumstances in the national interest” presented by the destruction caused by recent hurricanes, OFCCP Acting Director/Deputy Director Thomas M. Dowd has granted, in regard to Hurricanes Irma and Maria, additional limited exemptions and waivers relating to the requirements to develop written affirmative action programs (AAPs) under the laws administered by the OFCCP on top of the one he issued on August 31 as to Hurricane Harvey.

These exemptions and waivers are detailed in three memoranda, posted on the OFCCP’s website, which are addressed to all federal government contracting agencies. Federal contractors will continue to be subject to the nondiscrimination requirements under the three laws that the OFCCP enforces—Executive Order 11246, as amended, Section 503 of the Rehabilitation Act, as amended, and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA).

The memoranda also provide three equal employment opportunity clauses that federal contracting agencies may utilize in covered contracts entered into to provide hurricane relief. Each of the exemptions and waivers are for a period of three months from the date of the corresponding memorandum, subject to an extension “should special interests in the national interest so require,” and pertain only to the three programs administered by OFCCP.

Notwithstanding these exemptions and waivers, the following regulatory requirements will continue: (1) posting of the “Equal Opportunity is the Law” notice under all three laws; (2) record keeping and record retention under all three laws; and (3) employment listings with appropriate employment service delivery system as required under VEVRAA.

The Hurricane Harvey memo, originally issued on August 31 and revised on September 1, 2017, provides that exemption and waiver will run from September 1 to December 1, 2017.

The Hurricane Irma memo, issued on September 7, states that exemption and waiver will run from September 8 to December 8, 2017.

The Hurricane Maria memo, issued on September 20, provides that exemption and waiver will run from September 21 to December 21, 2017.

Corresponding FAQs regarding each of the three exemptions and waivers are posted on the OFCCP website.

For questions or additional clarification on a specific contract, contractors are instructed to contact Marika Litras, Director of Enforcement at (202) 693-0101 or litras.marika@dol.gov.

In September 2005, then OFCCP Director Charles James, Sr. issued a similar waiver and exemption in light of Hurricane Katrina.

Kraft retirees had no vested right to health care benefits beyond termination of CBAs

September 21st, 2017  |  Published in Blog

In a number of recent court decisions, it has consistently been determined that collective bargaining agreements do not provide a source for lifetime medical benefits for retirees and their surviving spouses and beneficiaries if there is not explicit contractual language stating that such benefits survive expiration of the agreement. However, in a recent decision, Gruss v. Kraft Heinz Foods Co., Inc., Kraft retirees sought to establish that the company violated ERISA when it terminated retiree health care benefits for former hourly workers,

Nevertheless, the same result was obtained as a federal district court in Wisconsin agreed with the employer that under binding ERISA caselaw, the retirees had no vested right to health care benefits upon retirement. Kraft had argued that no language in the relevant collective bargaining agreements, memorandum of agreement (MOA), or summary plan descriptions (SPD) promised to provide medical benefits to retirees that would continue beyond the termination of the CBA in effect when they retired.

Retiree healthcare benefits. The retirees worked as hourly employees at an Oscar Meyer meat packing plant until they retired. While employed, the retirees were represented by a union, and the terms and conditions of their employment was governed by a series of CBAs between the union and employer. The employer and union did not negotiate over healthcare benefits for retired employees before entering into a 1989 CBA. Over time, Kraft provided health and prescription drug insurance to employees and retirees represented by the union in accordance to the terms of its CBAs.

During negotiations leading up to the 2000 CBA, Kraft proposed converting all existing medical coverage to its “Kraft Chose Plan.” Thereafter, the union agreed that proposal. Ultimately, the 2004 CBA contained no reference to retiree medical benefits. A separate document provided that retiree medical coverage would not be provided for those hired after December 1, 2004.

Plan termination. By letter dated September 2, 2015, Kraft notified retirees that effective January 1, 2016, their current retiree health and prescription drug insurance plans would be terminated. For certain retirees, it provided an option of participating in a privately operated Medicare insurance exchange. Retirees would pay all premiums, with Kraft making annual contributions to a health reimbursement account (HRA) in an amount equivalent to the cost of obtaining health and prescription coverage.

Kraft did not negotiate with the union about these changes, and the union did not agree to the termination of the prior health and prescription drug plans. Accordingly, the retirees and union allege that these unilateral changes in coverage constitute a breach of the applicable CBA, and a violation of ERISA.

Vesting of retiree benefits. The retirees’ claims rested on the contention that they had vested rights to the pre-2016 health and prescription drug insurance coverage. Thus, the ultimate issue was whether the retirees’ health care benefits survived the termination of the CBAs. The parties agreed that the benefits at issue are welfare benefits governed by ERISA. Unlike pension benefits, ERISA does not mandate the vesting of welfare benefits. Rather, employers and unions may choose to enter agreements for welfare benefits to vest. Under Seventh Circuit precedent, any agreement for the vesting of welfare benefits under ERISA “must be contained in the plan documents and must be stated in clear and express language.”

Here, the court pointed out that the CBAs were each silent on the continuation of health care benefits for retirees past the agreement. Silence indicates that welfare benefits are not vested. Moreover, considering all of the documents, the relevant SPDs both expressly provide a right to “amend or terminate” the health plan at any time, and the 2004 SPD specifically provided that coverage ends on “the date retiree coverage under the plan terminated.” If the CBAs and the plan documents provide that the benefits can be modified or revoked, then the benefits do not vest as a matter of law.

Finding no ambiguity in the various CBAs or related documents, the court declined to consider extrinsic evidence offered by the union in an effort to demonstrate vested rights. Accordingly, the court was compelled to conclude as a matter of contract interpretation and ERISA that none of the plan documents vested retiree health care benefits past the respective termination dates of each of the three CBAs at issue.

Save Local Business Act: Is tanking the revised joint-employer standard the right move?

September 14th, 2017  |  Published in Blog

On September 13, 2017, the House Education and the Workforce Subcommittee on Workforce Protections and the Subcommittee on Health, Employment, Labor, and Pensions held a joint legislative hearing to examine the Save Local Business Act, which would tank the National Labor Relation Board’s revised joint-employer standard. The legislation, H.R. 3441, would roll back what proponents see as an “extreme joint-employer scheme” and clarify that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers. The billl’s opponents contend that by creating a new, narrow definition of a “joint employer” under the National Labor Relations Act and the Fair Labor Standards Act, H.R. 3441 would dismantle legal protections that workers have relied upon for decades, creating chaos and uncertainty for workers.

The bill, which enjoys some bipartisan support, would get rid of the revised joint-employer standard articulated in the 3-2 Browning-Ferris Industries decision, in which the NLRB returned to its pre-1984 standard for determining joint-employer status under the NLRA. In that ruling, the Board announced that it would no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Nor would the Board require that to be relevant to the joint-employer inquiry, a statutory employer’s control must be exercised directly and immediately. If otherwise sufficient, control exercised indirectly—such as through an intermediary—may establish joint-employer status.

Tanking the NLRB’s revised definition. Proponents of H.R. 3441 see it as the vehicle through which the NLRB’s revised joint-employer standard should be undone. “To most Americans, the question over who their employer is seems to be an obvious answer. It’s the person who hired them, the one who signs their paycheck,” Representative Bradley Byrne said at the hearing. “As a former labor attorney, I can tell you it used to be very clear in legal terms how you become someone’s employer. But that’s no longer the case since the [NLRB] stepped in.”

“It’s time to settle once and for all what constitutes a joint employer—not through arbitrary and misguided NLRB decisions and rulings by activist judges—but through legislation,” Representative Tim Walberg (R-Mich.) added.

Costing small businesses more. Tamra Kennedy testified on behalf of the Coalition to Save Local Businesses. She is a business owner who started out as a secretary for a local Taco John’s franchise and went on to own several of her own restaurants. Kennedy expressed her concern that the revised joint-employer rule may rob her of the success and independence she worked so hard to achieve. “After two years operating under the expanded joint-employer standard, the impact on my business is clear: joint employer means I must pay more to run my business, and earn less in return, all while worrying if the unclear joint-employer liability rule will continue to erode my autonomy to run my business,” she said.

Kennedy pointed out that her franchisor used to provide standard employee handbooks to franchisees, but because of the expanded joint employment liability, no longer does so, even though the franchisor has the expertise and best practices that would be most helpful for her and her employees. Kennedy said she now must hire an outside attorney to write an employee handbook, which cost her business $9,000 to have outside counsel prepare. She also needs attorneys to update her handbook each time the law changes.

The small business owner also noted that she no longer receives a job application form from her franchisor. She must create her own application and keep it updated. Moreover, Kennedy said, she must recruit employees on her own. For years, her brand company produced and provided franchise owners employee recruiting kits with banners, brochures, fliers, and an employment application form for use in the restaurants.

“All of the materials were created by the brand and presented a unified, consistent quality to our potential employees,” Kennedy said. “Today, because of the fear of joint-employment liability, these essential recruitment tools are no longer available to franchisees. While we are welcome to produce our own materials—both incurring the cost of design and printing—we can no longer expect this support from our brand company. It also creates another barrier to hiring great people, so unfortunately, I’m creating jobs in my community slower than I otherwise would.”

Will small businesses get hurt? Not everyone agrees that H.R. 3441 would help small businesses—some predict that it would hurt more than help. “The proposed narrow definition of ‘joint employer’ would have seriously negative impacts on workers and on small business owners,” according to Michael Rubin, Partner at Altshuler Berzon LLP. “[H.R. 3441] would also leave small business owners in the untenable position of facing the risk of being held solely responsible for labor law compliance and collective bargaining even when they lack the authority or means to fulfill that legal responsibility. . . I am convinced that H.R. 3441 will [not] benefit local businesses.”

Subcontracting in the construction industry. Granger MacDonald, who appeared on behalf of the National Association of Home Builders and is a second-generation home builder from Kerrville, Texas, explained the importance of contracting in his industry, and how the joint-employer scheme limits the ability to contract with other companies.

“Without [contractors], my company and many other family-owned home building firms like it would simply cease to be viable operations,” MacDonald said. But “simply by applying responsible everyday business practices, we could still be held accountable for the labor and employment practices of third-party vendors, suppliers, and contractors over whom we have no direct control.”

MacDonald added that the joint-employer threat to contracting undermines the housing market recovery.

“Congress should consider policies that support a continued housing recovery, starting with undoing the harmful precedent set by the NLRB’s expanded joint-employer doctrine and other policies that reduce labor market flexibility,” he said.

Collective bargaining problem. Employment lawyer Zachary Fasman, a partner in the law firm of Proskauer Rose, LLP, called Browning-Ferris “nothing short of a disaster.” He said the key problem of the Browning-Ferris decision is that it “sweeps virtually every contracting relationship within its boundaries. In practice, it is no standard at all.” He cited the Browning-Ferris dissent: ‘[n]o bargaining table is big enough to seat all of the entities that will be potential joint employers under the majority’s new standards.’

As to H.R. 3441, Fasman disputed claims made by critics, saying, “This bill would not deny any employee the right to join and form a union or to bargain with his or her employer. It would merely establish that the proper employer for bargaining is the employer that actually sets the terms and conditions of employment in the workplace, and not some affiliated entity which has a commercial relationship with the employer.”

Undermining employer accountability. But Representative Mark Takano (D-Calif.) saw it differently. “For decades, joint-employment standards have ensured workers can hold employers accountable for violating wage and hour laws or refusing to collectively bargain. This bill represents a significant and dangerous break from that precedent that would undermine the rights of American workers,” he said. “This legislation rewards companies that rent employees from staffing agencies instead of hiring them directly, and allows them to evade responsibility for upholding the rights of those employees, even though they profit from their work.”

Opponents of H.R. 3441 also contend that it gives unscrupulous employers a roadmap for evading the obligations they owe to workers under current law. Employers can outsource one of the bill’s listed terms of employment, such as determining work schedules, to another entity and evade all responsibilities to collectively bargain with workers or to pay wages owed to workers. Similarly, because a joint employer must exert control “directly, actually, and immediately” under the bill, an employer can convey all employment directions through a third party without ever being considered a joint employer, Subcommittee Democrats suggested.

“This bill is simply an excuse for top corporations to remove any responsibility to their workers. They are subcontracting their consciences to put profits over people,” said Representative Donald Norcross (D-N.J.). “This bill would leave countless hardworking Americans without a voice in their workplace at a time when Congress should be helping to lift up workers by raising wages and improving workplace conditions.”

The “Save Local Business Act” represents a blank check for powerful franchisors to dictate small franchisees’ employment practices, while at the same time leaving franchisees on the hook for any legal violations,” according to opponents of the measure.

Joint-employer liability narrowed out of existence? It’s worth considering whether under H.R. 3441, joint-employer responsibility would be narrowed to the point of nonexistence, and whether that’s a good thing. Rubin said that the practical impact of the bill would be “to eliminate joint-employer responsibility under the NLRA and FLSA altogether.” He explained that the proposed definition of “joint employer” under the bill “so dramatically narrows the common law standard under the NLRA and the ‘suffer or permit’ standard under the FLSA that it will prevent any entity, other than the direct employer itself, from being a ‘joint employer.’” The result would be that H.R. 3441 would “effectively overrule hundreds of court decisions, going back to well before the Supreme Court’s first major joint-employer decision in 1947, which held that a slaughterhouse owner was the statutory employer of the meat deboners it hired through an independent staffing contractor.”

Senate Appropriations Committee rejects White House proposal to merge OFCCP into EEOC, calls on OFCCP to ‘right size’

September 11th, 2017  |  Published in Blog

The Senate Appropriations Committee has rejected the White House’s proposal to merge the OFCCP into the EEOC and has recommended OFCCP funding at a level significantly higher than the levels recommended by the Trump Administration and the House Appropriations Committee earlier this year. Nevertheless, the Senate Appropriations Committee recommended cutting the OFCCP’s budget, and “strongly urge[d]” the agency to “find efficiencies and cost savings,” instructing it to provide the Committee with an inventory of its current infrastructure and a plan to consolidate and “right size” the agency.

On September 7, 2017, the Committee approved, 29-2, the Fiscal Year (FY) 2018 Labor, Health and Human Services, and Education and Related Agencies Appropriations Bill. The bill calls for $103,476,000 in FY 2018 funding for the OFCCP. By comparison, the White House’s FY 2018 budget proposal, released on May 23, 2017, calls for $88 million in funding for the OFCCP. On July 19, 2017, the House Appropriations Committee approved its draft FY 2018 Labor, Health and Human Services, and Education funding bill which would allot the OFCCP $94.5 million.

In its report on the bill (at page 30), the Committee stated that it “strongly urges OFCCP to find efficiencies and cost savings, including the consolidation of offices, within its current budget structure. This should include a review of the current OFCCP office locations and infrastructure across the country and whether these offices align with current workload needs. OFCCP is directed to report to the Committee with an inventory of current infrastructure and a plan to consolidate and right-size the agency 180 days after enactment of this Act.”

The White House’s FY 2018 budget proposal also calls for the OFCCP to consider reducing the number of its field office locations. Its proposed funding level would include 440 full-time equivalent (FTE) employees, down from the current FY 2017 estimate of 571 FTEs.

The House Appropriations Committee report on its bill is silent as to the merger, instead focusing it comments (on page 12) on a Government Accountability Office (GAO) report issued on September 22, 2016, in which the GAO identified and discussed multiple deficiencies with OFCCP enforcement. Noting that the OFCCP accepted the GAO’s recommendations, the Committee instructed the agency to report to it on its efforts and the status of implementing each of the recommendations.

Congressional action necessary to complete proposed merger. The White House proposed the merger in its Fiscal Year (FY) 2018 budget, released on May 23, 2017, in which the Appendix section detailing the proposed DOL budget provides that the two agencies would work collaboratively to coordinate this transition to the EEOC by the end of FY 2018. Because the EEOC does not currently have the authority to do a number of things that the OFCCP does, Congressional action is an essential component of the merger. To that end, the

DOL’s budget justification as to the OFCCP calls on the agency to draft and review: (1) legislative proposals to amend the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act (Section 503); and (2) a new Executive Order (EO) amending EO 11246. The OFCCP would also need to draft/revise its EO 11246, VEVRAA, and Section 503 regulations to implement the transfer of authority.

Outreach to business community lacking, expert says. From the start, the Administration did not engage in necessary outreach to the business community,” Mickey Silberman, a Shareholder with Fortney & Scott, LLC and Chair of the firm’s Affirmative Action & Pay Equity Practice Group, told Employment Law Daily on September 8. “And when the business community announced their opposition to the proposed merger, it went on life support. With the Senate Appropriations Committee’s clear rejection of the proposal, it’s now dead. Whether its buried for the remainder of Trump’s term is not certain, but I predict it will not be revised by this administration.

“OFCCP anticipated this outcome, announcing several times in the past few months it hopes to work with contractors in a more cooperative and productive way and will consider reforms to the agency’s structure and enforcement methods.”

‘Rugby scrum,’ over OFCCP’s fate continues. “The political Rugby Scrum over the fate of OFCCP is now operating at full power,” said John C. Fox, former OFCCP official and current President of Fox, Wang & Morgan, P.C., in comments to Employment Law Daily the evening of September 7. “Were the Senate Appropriation Committee’s budget proposal for OFCCP to be adopted, it would not be devastating to the agency, but would still render OFCCP too small, in my opinion, to be able to function as an effective federal agency.”

“The Senate Appropriation Committee’s $2 million reduction in proposed budget (from OFCCP’s last year’s approximately $105 million plus budget), combined with about $2 million of increased expenses at OFCCP (pensions and rent increases, etc), would mean a loss, in effect, of approximately 40 compliance officers,” Fox explained, noting that OFCCP compliance officers costs are about $100,000 per employee, or about 10 for $1 million. “Accordingly, OFCCP would shrink, under the Senate Appropriations Committee’s proposal, from 571 authorized positions (at the end of FY 2017) to approximately 530 or so authorized positions by the end of coming FY 2018.”

Reduction in OFCCP offices. “Currently, OFCCP’s employees are spread across approximately 59 brick and mortar offices, including a Headquarters Office (National Office) in Washington D.C., 6 Regional Offices, 49 District Offices and perhaps 3 Area Offices (which operate without an on-site manager),” Fox noted. “That would leave fewer than nine OFCCP employees per office, on average. Currently, most District Offices are already between one-third and one-half empty as the agency has stair-stepped down annually in headcount over the last 8 years from 785 authorized positions in the first year of the Obama Administration to the current 571 authorized positions.”

Number of on-site audits down. “The GAO has recommended for years consolidating offices since OFCCP no longer automatically comes on-site to audit covered government contractors,” Fox continued. “Indeed, OFCCP currently only comes ‘on-site’ to a contractor’s establishment to audit in about 3-5 percent of the agency’s increasingly fewer audits (perhaps only 1,000 or so audit completions by the end of this FY 2017, down from the 4,000-5,000 per year only a few years ago.). The resulting thirty to fifty OFCCP on-site audits we expect to see reported in this FY 2017  (or even 250 on-site audits per year) hardly justifies having dispersed OFCCP offices throughout the United States and the concomitant leasehold expense.”

Operating changes have reduced travel needs. “[In addition], OFCCP must travel from its existing dispersed offices to contractor sites to conduct audits in over half of their existing on-site audits, so the advantages of ‘offices near the contractor’ have now been overtaken by the change in OFCCP’s operating philosophy (in 1996 in the Clinton Administration) to no longer automatically and routinely go on-site in each and every OFCCP audit, and by advances in technology,” Fox observed. “Rather, OFCCP today carries out most audits (about 95-97 percent depending on what year one examines) via telephone and via e-mail without any on-site presence at the contractor’s establishment. As a result, there is a strong operational argument to consolidate OFCCP offices, as the Senate Appropriations Committee is urging OFCCP to do, with its shrunken budget. However, there is an even more compelling argument to immediately close all OFCCP District and Area offices, and to perhaps close all OFCCP Regional Offices, too, and thus, house all OFCCP personnel in one office in the Washington DC area. Standing against that common sense operational and budget result is the political issues of Members of Congress losing federal investments in their states and cities and the hardship to the over 500 OFCCP employees who would have to either move, quit or be fired.”

Hashing out the differences between the House and Senate bills. “Given the rumors of the last several days coming out of The White House that President Trump may delay a threatened federal government shutdown on October 1 in hopes of negotiating by December 1 an agreement to fund the building of ‘The Wall’ on the Mexican border, it appears that a two-month Continuing Resolution might soon be in the offing as of October 1,” Fox said. “If that were to occur, the Senate and the House would have an additional two months to hash out their large differences in approach to OFCCP’s budget and future direction. The Senate Appropriations Committee’s proposed OFCCP budget is approximately $9 and a half million higher than the House’s proposed budget for coming FY 2018 ($103,476,000 versus $94,000,000). That approximately $9 million difference represents another 90 lost OFCCP positions. However, if the House and the Senate were to ‘split the baby in half’ and agree upon a $99 million budget for OFCCP (or about a $6 million loss from OFCCP’s current over $105,000,000 funding level), OFCCP’s FY 2018 headcount would shrink about 60 heads from its current 571 authorized level to about 510 authorized positions, nationwide. At that level, OFCCP is approaching an average of only about 8 employees per office. While one could operate an agency that small in size, the number of audits would shrink drastically since a large Headquarters staff is necessary to hire and train compliance officers, do the accounting and bookkeeping and carry out a regulatory agenda. If the OFCCP were to shrink to below 550 employees in size, nationwide, not only would office closures/consolidations be absolutely necessary, but the idea of merger suddenly becomes much more tantalizing to OFCCP personnel in need of quality and continuous training and supervision.”

Difficulty of winding down the OFCCP. According to Fox, “[t]he federal government does not ‘sunset” agencies or federal programs well. What we are witnessing is the writhing of an anguished Congress struggling to find a way to wind down OFCCP in a graceful and orderly way. There will be little agreement among principals about the ‘right way’ to wind down OFCCP, even while all recognize that it must be done and is being done, little by little: death by a thousand small lashes….like watching a mortally wounded Titanic sink under the waves….in ultra-slow motion.”

[Wolters Kluwer Note: For an in-depth discussion of the merger proposal, see the September 8 post on this blog.]

While many specifics of proposed OFCCP merger into EEOC remain unclear, experts discuss range of issues presented

September 8th, 2017  |  Published in Blog

Because many blanks are yet to be filled in as to the White House’s proposal to merge the OFCCP into the EEOC, Employment Law Daily reached out to three labor and employment law experts, including two former OFCCP officials, to get their thoughts on the mechanics of how the merger might occur as well as its implications for employers. In separate interviews, the three attorneysLawrence Z. Lorber, Senior Counsel in the Washington, DC office of Seyfarth Shaw, and former OFCCP Director; John C. Fox, former OFCCP official and current President of Fox, Wang & Morgan, P.C. in Los Gatos, California; and David Gabor, a Partner in Boston, Massachusetts office of The Wagner Law Groupdiscussed the legal, technical, practical, and political issues presented by the proposed merger. Among the topics covered were: potential budget savings, efficiencies, and other improvements to enforcement functions that might be achieved by the proposal; what will become of the affirmative action component of the OFCCP’s mission; whether the proposed merger timeline is realistic; and options for the agencies to work together even if political considerations ultimately doom the merger.

Proposed merger. The White House’s proposed Fiscal Year (FY) 2018 budget, released on May 23, 2017, would decrease OFCCP funding by about $17 million and merge the agency into the EEOC by the end of FY 2018. 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.”

Proposal not well-received among stakeholders. Even before getting into the technical aspects of what would be required to undergo the merger, there is the issue of how the mere idea of such a merger is being received. As previously reported in Employment Law Daily, this proposal has also not been well-received among business/employer groups, who fear 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. In addition, the National Industry Liaison Group (NILG) sent a letter to Secretary of Labor Alexander Acosta and Office of Management and Budget Director Mick Mulvaney, on June 12, 2017, expressing its opposition to the proposal stating in part: “We fear that by eliminating the OFCCP, the focus of audits will become full blown EEOC lawsuits.” The NILG letter also expressed concern that budget reductions will “create a situation where compliance is no longer a significant concern for most federal contractors,” and that the substantial work required by the government to combine the agencies “will have deleterious effects on both the federal government’s procurement process and federal contractor compliance.”

Civil rights groups have also expressed opposition. For example, 73 national civil rights organizations, including the ACLU, the NAACP, and the American Association for Access, Equity and Diversity, have signed onto a letter addressed to Secretary Acosta and OMB Director Mulvaney calling on the Trump Administration to abandon the proposal. Acting Commission Chair Victoria Lipnic was copied on the letter, dated May 26, 2017. The proposal “would impede the work of both the OFCCP and the EEOC as each have distinct missions and expertise, and would thereby undermine the civil rights protections that employers and workers have relied on for almost fifty years,” the letter states.

Issues affecting consideration. “There are three issues which affect consideration [of this proposal],” Fox noted. First, “as a purely technical and administrative decision, it is hard to argue against. If you were a Martian landing on earth and one day stumbled upon the OFCCP and the EEOC, you would wonder why these civil rights agency twins had ever been separated at birth. One can find technical issues to debate, but those are details with multiple potential solutions. Unfortunately for those opposing the merger, there are no “deal stoppers” [with regard to this merger proposal].”

Second, “as a political proposition, the merger is very difficult and will continue to be poorly received as proposed because it drives together ‘strange bedfellows’ in opposition,” Fox continued. “Indeed, the precise form of the merger (all of OFCCP, not parts of its authority and budget) may be so politically unpalatable that the merger proposal may well be ‘Dead on Arrival.’ In addition, the 16.5 percent budget reduction the White House has proposed for the OFCCP is hard to separate in the minds of most government contractors and civil rights groups from the political decision—even though the White House is treating OFCCP better than most other USDOL agencies as to which the White House has proposed more than a 16.5 percent budget cut.”

Third, “as an emotional proposition, the merger is also difficult for many government contractors to accept because people are always and inherently resistant to change. Moreover, the government contractor community is quite accustomed to the OFCCP it knows and currently also fears what it does not know (which is all the details of the proposed merger).”

“So, depending on which of the above three issue(s) drives one’s thinking, you are either pro or con the merger proposal,” Fox observed.

Would the combined agencies be more efficient? As stated above, the White House asserts that combining the agencies will “reduce operational redundancies” and “promote efficiencies.” The experts differed on the extent to which efficiencies would result from the merger.

“The significant differences in authority, procedures and enforcement processes, call into question what efficiencies and savings the merger would achieve if the current functions of both agencies are to remain,” said Lorber. “The agencies actually have complimentary but different missions. The OFCCP and its predecessors were established with the primary mission of promoting and enhancing affirmative action outreach efforts aimed at increasing the pool of qualified employees from historically disadvantaged groups available to work on federal contracts.  It is an audit based agency which does not establish rights to pursue private law suits, but instead reviews contractor establishments to determine compliance.

“The EEOC, on the other hand, is a discrimination charge based agency with a mandate to conciliate charges but who may also establish rights to bring private litigation.  While the two statutes and Executive Order which guide OFCCP’s actions do prohibit discrimination, they are not part of federal government’s core responsibility to combat discrimination. That responsibility derives from Title VII, the ADA and USERRA, among other laws, which each establish specific prohibitions against discrimination. Title VII, the ADA, and other laws are administered by the EEOC.”

How the merger is actually carried will be key a factor in the extent of efficiencies that might occur, according to Gabor. “Without knowing the specifics, it sounds like a merger of EEOC and OFCCP makes a great deal of sense,” he said. “They perform related functions and a merger might create efficiencies and consistency in administration. One of the challenges that companies often face is conflicting messages from different agencies. How effective a merger might be is dependent on how it is executed. There will need to be solid communication between teams from the EEOC and the OFCCP. If that fails and the framework of the merger is not solid, then the merger will not be effective.”

Realistic timeline for merger? 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 and for the merger to be completed by the beginning of FY 2019. Considering that the proposed transfer of operations would touch upon every aspect of the OFCCP’s operations including compliance evaluations, compliance assistance, policy, training, stakeholder outreach and education, personnel, contracting and procurement, and information technology, some stakeholders have questioned whether the timeline specified in the White House’s budget documents is realistic. Indeed, in a recent letter to the Institute for Workplace Equality (IWE), Acting OFCCP Director/Deputy Director Thomas M. Dowd acknowledged that the proposal “includes several challenging transition issues,” and indicated that the legislative and regulatory actions necessary to effectuate  the proposed merger “will likely prove time consuming and could delay the expected FY 2019 start for the proposed consolidation.”

“The Congress and the agencies would have to determine the efficacy of the timeline for the merger and how resources would be allocated,” Lorber said, adding “[t]he timeline does seem to be somewhat ambitious.”

“I do not believe that the timeline is realistic unless adequate resources are available to manage the transition,” Gabor said. “To that end, it appears that this plan is contingent on a number of other things happening. If one of those things fails, there may be a domino effect.”

Yet, Fox pointed out that “[b]usiness mergers of billion dollar companies sometime happen in less than two weeks. It won’t be pretty and the OFCCP may go into an ‘enforcement pause’ for a year or so.”

“If there is a Continuing Resolution of the FY 2018 Budget, the continuing uncertainty of the Congress’ direction could also slow transition planning because of the uncertainty of the Congress’ eventual approval of the merger proposal,” Fox continued. “However, I strongly suspect that Ms. Lipnic and Secretary of Labor Acosta will continue to plan the transfer of the OFCCP to the EEOC despite any Continuing Resolution and absent direction from the Congress that it will not support and fund the merger.”

Budget savings. All three attorneys agreed there would be some budget savings if a merger occurs, but not right away.

“If it goes forward there should be budget savings inasmuch as this would eliminate duplication of services,” Gabor said.

“Any budget savings would be determined by how the merger is effectuated and how the responsibilities and resources are reallocated,” Lorber stated. “There would seem to be a need to cross-train OFCCP compliance staff and EEOC investigators and intake staff on the functions and procedures of the other agency. It may therefore be difficult to realize immediate savings.”

“It is hard to quantify, but my sense is probably $20 million per year even apart from the increased enforcement capability of an OFCCP owned and operated by the EEOC,” Fox said, noting that economies of scale will be a factor.

Delving into some detail, Fox noted that in terms of financial efficiency, “[t]here is no doubt the combined agencies would save a substantial amount of money.” He explained that there would be just one budget for discrimination law enforcement, statistics, recordkeeping, and interviewing training. Money will also be saved via “the elimination of 60 some-odd offices currently co-located throughout the country and presumably (but not necessarily)  elimination of the Office of Administrative Law Judge process at USDOL in exchange for the EEOC’s traditional access to the federal courts.”

“The savings in leasehold expense will be very large as OFCCP has shrunk in recent years by over 30 personnel from almost 800 employees to about 550 on roll today and heading, perhaps to an authorized payroll of only 440 employees) leaving the agency with many offices which are 50 percent or more empty,” he continued.

“There will, however, be a large one-time cost to intake the OFCCP personnel into the EEOC,” he noted, adding that, ”[t]he EEOC should treat the OFCCP personnel as new hires off the street and train them in every law and system at the EEOC to disengage OFCCP’s bad habits and fill in the many gaps in OFCCP training.”

Operational efficiency. Looking at operational efficiency, Fox observed that “[t]he EEOC is a very well run agency by most measures and the OFCCP is among the very lowest performing agencies in the federal government. The strong training and organizational tradition of the EEOC would greatly increase the OFCCP’s operational and enforcement efficiency through sturdy and reliable discrimination training programs the EEOC has large staffs to update and deliver.” In contrast, “the OFCCP has not offered training programs in three years and most of its employees have never been trained in discrimination law, investigation procedures, interview techniques, statistics, recordkeeping during investigations, etc.

“As one example, the EEOC during the Obama Administration launched a pilot ‘systemic discrimination’ program in selected EEOC offices to mirror the systemic program at OFCCP. In only three years, the EEOC systemic program, with about the same number of employees as OFCCP employs, has last fiscal year collected over three times more than the OFCCP’s entire back pay collection.” [Wolters Kluwer Note: According to the agencies’ statistics for FY 2016, the EEOC obtained approximately $38 million in relief for victims of systemic discrimination, while the OFCCP obtained just over $10.5 million total from compliance evaluations and complaint investigations.]

“Indeed, one of the contractor community’s fears about the transfer of the OFCCP to the EEOC is that the EEOC would undoubtedly make the OFCCP a more efficient, functional and fearsome agency instead of the heavily damaged and burdened agency it now is,” Fox explained, adding that the OFCCP is an agency “which does not strike much fear currently in corporate General Counsel offices throughout the United States.”

“Also, the EEOC would get the OFCCP on schedule,” he continued. “[The] OFCCP is chronically tardy, brings lawsuits often 10 years after the events in question without explanation or remorse, [it] has thousands of audits now 4-8 years old and has no internal operating deadlines whatsoever (since FY 2016). [Thus,] the EEOC’s structured and mature infrastructure will help organize the decayed OFCCP management structure.”

What’s driving the opposition? Fox identified three primary drivers behind the government contractor community galvanizing in opposition to the merger. The first is the fear that “the EEOC will make the OFCCP a much more effective and feared agency the contractor community can no longer control,” he said, adding that is the great “elephant in the room” that few are discussing publicly because it is “not a compelling reason to oppose the merger.”

The second driver is “distrust of the White House’s intentions as to civil rights, causing an automatic reflex ‘knee-jerk’ reaction to resist anything the White House does [in this area].” Elaborating on this point, he said “just imagine how differently the civil rights and government contractor communities might have received the White House’s merger proposal had the Trump White House recommended, let’s say, a doubling of the OFCCP’s budget AND merger with the EEOC; thus, engendering confidence that the White House was well-intentioned as to its merger decision.”

The third driver is the “fear that the transfer means a diminished role for the OFCCP. [Thereby,] threatening the livelihoods of hundreds of vendors, thousands of corporate affirmative action personnel and thousands of lawyers servicing government contractors.”  However, Secretary Acosta’s June 7 testimony at the House subcommittee hearing should now remove this third concern, he said. “The 16.5 percent reduction the White House has proposed to the OFCCP’s budget does not diminish the integrity of the merger decision since the White House is not differentially reducing the OFCCP’s budget. Rather, the White House has launched a broad-frontal attack on the budget of the entire federal Executive Branch—not just the OFCCP— with only a few exceptions, such as defense and veterans programs,” he noted.

“There are usually varied reasons for disparate groups to take positions on legislative or policy proposals,” Lorber said. “Civil Rights organizations have traditionally argued that government contractors should face enhanced oversight of their personnel practices. Employer and contractor organizations seem to argue that the OFCCP should focus its efforts on affirmative action, diversity and inclusion and recognize the long standing Memorandum of Understanding (MOU) with the EEOC which charges the EEOC with the responsibility for discrimination reviews. There is a concern that the mingling of different authorities and responsibilities could lead to the EEOC using the OFCCP authority to have unlimited access to all personnel records and threaten procurement action in Title VII or ADA complaint situations and the OFCCP using the EEOC authority to demand punitive and compensatory damages and access to federal courts to further put pressure on contractors it has under review.”

“The only way a ‘Super EEO Enforcement Agency’ would be created would be if the authorities of the two agencies were intermingled,” Lorber continued.  “It would perhaps be helpful if the decision makers reviewed the legislative history of the 1972 Equal Employment Opportunity Act to familiarize themselves with the arguments which led to the defeat of the proposal then to merge the agencies.”

“The current administration is under terrific pressure from all sides,” Gabor said. “It is difficult to predict how that pressure will influence its decision making. At the same time, it is not always clear what will ultimately influence its decisions.”

Affirmative action. Neither the Appendix section regarding the OFCCP nor the DOL Budget Justification for the OFCCP mention what the combined agency would do regarding affirmative action. At a House Appropriations Labor, Health and Human Services, Education, and Related Agencies Subcommittee hearing on June 7, 2017, Secretary of Labor Alexander Acosta indicated that there would not be a reduction in the scope of EO 11246.

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 has explained. Any of these options would require some Congressional action as well as the President amending EO 11246. All three attorneys said there was a lack of clear direction on this issue.

“We all wait to learn more about directives from Washington,” Gabor observed. “It is extremely difficult to predict what will happen down the road.”

“There has been no guidance as to how the affirmative action functions would continue and what changes would be made in EO 11246, Section 503 of the Rehabilitation Act or VEVRAA other than that the responsibility would be shifted to the EEOC,” Lorber noted. “It is somewhat implicit in the Budget guidance that the OFCCP’s authority over procurement would be even more directed at addressing discrimination since the justification suggested that the agencies had the same responsibilities but there has been no further explanation.  The absence of any more specifics may reflect the fact that implementing this change would require legislative changes.”

“The White House has purposely not thought through the details of the transfer,” Fox said. “This may turn out in retrospect to be a poor strategic decision from the White House’s perspective since the fear of the unknown is rallying opposition to the merger proposal among the government contractor community. The White House was ‘painting’ the merger idea with a broad and simple brush: just merge two civil rights agencies in a time the federal government can no longer financially afford the luxury of redundant agencies. The White House thinks of this transfer as a simple, obvious, streamlining activity like any of the thousands of business mergers which occur each year in America. Politics did not drive the White House’s merger decision. Rather, the White House has left it to senior Department of Labor officials and EEOC Acting Chair Lipnic to spend the next year planning the details of the merger.”

As to those details, “there are many ways to ‘skin the cat,’’ Fox noted. “Ms. Lipnic is likely going to be the key architect of the transfer and will decide: (1) whether she will create separate affirmative action teams different from the Commission’s discrimination investigation teams; and (2) whether the OFCCP program will be run centrallyperhaps only from Washington D.C. (as the Government Accountability Office (GAO) has charged the OFCCP to consider) or through EEOC regional officesor whether to continue the OFCCP’s decentralized enforcement design.”

Required Congressional actions. On top of the affirmative action issue, the EEOC does not currently have the authority to do several other things that the OFCCP does, including bringing administrative actions to debar federal contractors. The DOL’s budget justification as to the OFCCP calls 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. The attorneys all agreed that no changes to the statutes enforced by the EEOC would be required to effectuate this transition.

Opportunity to change laws enforced by the EEOC? Even so, Employment Law Daily asked if Congress might still take such a merger process as an opportunity to make changes to the laws enforced by the EEOC. “No,” Fox said. “Not in a modern Republican Administration which is not intent on expanding the administrative state. The last Republican who believed in and supported the administrative state was Richard Nixon.”

“Also, the tide seems to have turned in America against ‘big government’ and a smaller federal government  now appears to very much be a national goal, except among progressive Democrats. The FY 2018 budget will be a telling referendum on the fate of the administrative state. This debate is important because OFCCP’s budget is caught up, like most federal executive agencies currently, in that over-arching political debate in Washington D.C.”

Noting his previous comment regarding the MOU between the two agencies, Lorber said, “it would be helpful if the OFCCP followed the Memorandum of Understanding and did not try to replicate the functions of charge driven investigation and enforcement. Functions would not have to be merged if the existing protocols and procedures were followed. The agencies could certainly be more cooperative if these policies were followed and if the agencies followed the prescripts of Section 715 of Title VII [Equal Employment Opportunity Coordinating Council] and Section 12117(b) of the ADA [which covers the coordination of the EEOC’s ADA enforcement and the OFCCP’s Section 503 enforcement].

“There has been a push to amend the ADEA to make it more consistent with Title VII in order to avoid disparate impact and illegal hiring practices,” Gabor noted. “The ADEA was written roughly three years after Title VII and left out some of the language contained in Title VII.”

Skilled Regional Centers. The proposed budget allows for the OFCCP to continue with its plan 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, according to the proposal.

“If the agencies were merged, operational differences or initiatives such as the Skilled Regional Centers would obviously have to be reconsidered,” Lorber noted.  “The key question is ‘what is the purpose of the merger?’ If the purpose of the merger is to achieve some degree of economy of scale, then agency specific functions such as the Skilled Regional Centers would have to be reviewed for continued viability.”

“This [merger] will logically present logistical challenges that may impact [the combined agencies’] ability to cover the nation.” Gabor observed. “I don’t think that employers should be wary of a Super EEO Enforcement Agency. The greater question would be the resources that the agency has.”

“Ms. Lipnic will work this issue through,” Fox said, noting again that there are many ways to approach this task. “However, the EEOC already has ready and harmonious administrative vehicles to accommodate the OFCCP’s two Skill Centers in that the EEOC has already created specialized systemic discrimination units in San Francisco and New York,” he observed.

EEO-1 Report. Federal regulations currently require that all employers in the private sector with 100 or more employees, and some federal contractors with 50 or more employees, annually file the EEO-1 Report, with the Joint Reporting Committee — a joint committee consisting of the EEOC and the OFCCP.

“Another effect of the merger would undoubtedly be to examine how the EEO-1 Report would be compiled as there are different standards for government contractors and Title VII covered employers,” Lorber said.

A controversial pay data reporting requirement, added to the EEO-1 by the Obama Administration back in September 2016, was stayed by the Trump Administration on August 29, 2017. Neomi Rao, Administrator of the OMB’s Office of Information and Regulatory Affairs informed the EEOC via a memo that the OMB, pursuant to  its authority under the Paperwork Reduction Act, is initiating a review of the effectiveness of that pay data collection component.

That compensation data reporting requirement would have required employers “to present a tremendous amount of information to the EEOC that employers have never before been required to produce,” Gabor stated. “To me, [such a requirement would have presented a] much greater risk of enforcement action.”

Both the OMB and the EEOC had the power to reverse course on the compensation reporting component, Fox has noted; but the action came from the OMB because the Republicans won’t have a 3-2 majority on the Commission, and presumably the votes withdraw the requirement, until President Trump has all his appointments in place. Currently still pending Senate confirmation are President Trump’s selection of Janet Dhillon, to be EEOC Chair, and Daniel M. Gade to be a Commissioner. Acting EEOC Chair Lipnic voted against the pay data reporting requirement when it was before the Commission during the Obama Administration.

Issues identified by 2016 GAO report. On September 22, 2016, the GAO issued a report identifying and discussing multiple deficiencies with OFCCP enforcement. The report concluded that the OFCCP’s process in selecting federal contractors for compliance evaluations, the agency’s primary tool for enforcement, is not designed to focus on contractors with the greatest risk of noncompliance. Among its other findings, the report determined that the OFCCP is not providing consistency in its enforcement efforts across its offices because it is failing to timely train new compliance officers and provide essential ongoing professional training for all of its compliance officers. The proposed merger would “[a]bsolutely” help remedy some of the problems identified in the report, Fox said.

“The OFCCP would have to devote resources to adequately train its compliance officers in response to the GAO report regardless of the merger,” Lorber noted.  “EEOC personnel assigned to OFCCP functions would have to be trained in the full gamut of OFCCP activities.”

“One of the benefits from the merger would be the prospect of better education and training that would help employers avoid potential conflicts,” Gabor said.

Other ways to improve efficiencies? Even if this full merger doesn’t happen, are there ways the two agencies could work together to improve efficiencies?

“Yes,” Fox said, “but the efficiencies and cost savings of the two agencies working more closely together but without merging are ‘small change.’”

“From a procedural standpoint, it would be great of the agencies would have joint mission statements and joint enforcement memoranda,” Gabor said. “This would also be true of other agencies such as the NLRB and the DOL. Imagine if employers could ‘one stop shop’ to remain current on what is coming out of Washington.”

“The OFCCP could again exercise its discretion, interrupted in the waning days of the Obama Administration, to refer as much of its complaint docket to the EEOC as possible,” Fox explained. As an example, he said the OFCCP could return to the “historic policy” of referring individual complaints of discrimination under EO 11246 and Section 503 to the EEOC for investigation and prosecution.

“But, remember, the White House consciously chose not to bifurcate the OFCCP’s authority and did NOT propose to send OFCCP’s discrimination law authority to the EEOC while keeping the affirmative action authority at the DOL. So, if the merger fails, I believe The White House will continue to try to treat the OFCCP like it is treating almost all other federal agencies: by substantially reducing it in size.”

Budget will continue to be a concern. “Also, if merger fails, OFCCP still has all the same administrative, training and enforcement problems it has now and with inadequate budget and no plan to fix the agency,” Fox pointed out. “The EEOC merger proposal may well look, at this point in time, like Carpathia unto Titanic to OFCCP personnel.”

The White House’s FY 2018 budget proposal calls for $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 proposed budget calls for the OFCCP to consider reducing the number of its field office locations. On July 19, 2017, the House Appropriations Committee approved the draft FY 2018 Labor, Health and Human Services, and Education funding bill which would allot the OFCCP $94.5 million. The Senate has yet to propose its FY 2018 budget for the DOL/OFCCP.

“If the White House’s FY 2018 budget proposal for OFCCP comes to pass, the merger will not be the primary concern as to OFCCP,” Fox said. “Rather, the small size of the agency will drive civil rights concerns and government contractor vendor concern since the agency, at an $88M budget figure and with only 440 resulting employees, would cease to be large enough to function effectively…like cutting the roots while the plant above the ground otherwise appears to be healthy, for the moment. Even at OFCCP’s current 551 authorized employee headcount (571 minus the 20 employee loss occasioned by the recently passed FY 2017 budget), OFCCP is too small to function effectively and efficiently. This is another reason why a merger with the EEOC (and OFCCP’s overnight acquisition of the EEOC’s mature infrastructure, significantly better managerial staff, and extensive training college) would make great sense from an administrative point of view, even if not a compelling political action.”

Buyouts. In addition, Fox noted that the OFCCP’s union estimates that as many as 50-75 OFCCP employees from across all OFCCP offices and ranks could leave the agency as a result of two buyout offers (Voluntary Separation Incentive Payments and Voluntary Early Retirement Authority) detailed by Acting Director/Deputy Director Dowd in an August 18, 2017 memo sent to agency employees (Fox posted the memo as part of his August 28 blog for Direct Employer’s OFCCP Week in Review). The OFCCP will have to reduce staff out of necessity due to budget reductions and increased agency operating costs, he explained. Interestingly, “Secretary Acosta has decided to down-size OFCCP EVEN BEFORE the Senate weighs in with its FY 2018 budget for the DOL and the OFCCP,” Fox observed.

Given these anticipated staff reductions, which will likely result in the elimination of some of the agency’s brick and mortar offices, “a merger of OFCCP and EEOC is almost pre-ordained,” Fox concluded. “The question then becomes not whether, but only when.”

[Wolters Kluwer Note: After press time on September 7, 2017, the date this article was published in Employment Law Daily, the Senate Appropriations Committee announced its approval, by a 29-2 vote, of the FY 2018 Labor, Health and Human Services, and Education and Related Agencies Appropriations Bill. In its report on the bill, posted the following day, the Committee rejected the proposed merger and recommended $103,476,000 in FY 2018 funding for the OFCCP. It also instructed the OFCCP to report to the Committee within 180 days with an inventory of its current infrastructure and a plan to consolidate and “right size” the agency. See the September 11 post on this blog for more details, including expert commentary, about that development.]