United States: Review Of The Trump Administration's First Year: Aggressive Agency Action

Last Updated: January 31 2018

The past year has included many expected moves by the Trump administration, such as the reversal of some of the National Labor Relations Board's (NLRB) controversial decisions under the Obama administration, as well as several unexpected developments among several agencies. In part one of this article series, we discussed the various agency appointments, and lack thereof, as well as a few Obama-era Executive Orders that were put on the chopping block. In this article, we'll take a look at the various actions by the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Program (OFCCP).

EEOC is Prescient on #Metoo

When President Donald Trump appointed Victoria Lipnic, the only Republican on the EEOC, as acting chair, many in the EEO community hoped she would eventually be named chair. That didn't come to pass, but Lipnic has already left a substantial legacy at the agency during her time in charge.

At her urging, the Office of Management and Budget (OMB) moved to suspend Component 2 of the EEO-1 report prior to Labor Day, as she had promised at the 2017 Industry Liaison Group National Conference held in August in San Antonio. Under her leadership, the EEOC has reduced its backlog of cases by 16% and filed twice as many lawsuits as it did in FY 2016.

It now appears that Lipnic's most lasting legacy will be her Select Task Force on the Study of Harassment in the Workplace, which she began chairing in January 2015 with commissioner Chai Feldblum. The report and recommendations issued by the task force in June 2016 provide helpful insights and advice for employers, especially on the type of sexual harassment training that can be successful.

The report also led the EEOC to update its sexual harassment guidance for the first time in more than 20 years, just in time for the tsunami of reporting that #MeToo has unleashed. The most important finding of the task force was how inadequate current sexual harassment training is in deterring harassment in the workplace.

Although no one has been nominated as general counsel yet, the EEOC should have a full complement of commissioners by early 2018 once Dhillon and Gade are confirmed, with three Republicans (Dhillon, Gade, and Lipnic) and two Democrats (Feldblum and Charlotte Burrows). The agency recently issued its draft strategic plan for FY 2018-22, and in recognition of the 50th anniversary of the Age Discrimination in Employment Act (ADEA), the commission is expected to release new ADEA enforcement guidelines.

Other issues facing the EEOC include its conflict with the Department of Justice (DOJ) over whether and to what extent Title VII of the Civil Rights Act of 1964 protects the rights of LGBT individuals; whether it will revise its pay data collection proposal; how to resolve employer civility rules with the National Labor Relations Act (NLRA); and, in light of the DOJ's position on religious freedom and accommodation, how employers can balance the rights of LGBT employees with the religious beliefs of other employees.

OFCCP Very Aggressive in 2017

The OFCCP finally has a new director, Ondray T. Harris, who began work on December 10. Tom Dowd had been the acting director of the agency since Pat Shiu stepped down on November 6, 2016. Despite lacking new political leadership, the OFCCP recovered a record $23.1 million in FY 2017 after it closed about 1,123 audits, the lowest number it has ever closed during a fiscal year.

The OFCCP was very aggressive in pursuing audits and litigation in 2017, prompting many contractors to dub last year the "9th year of the Obama administration." In the waning days of President Barack Obama's second term, the agency filed litigation against JPMorgan Chase, Google, and Oracle.

Meanwhile, the Pacific Region, under the leadership of regional director Janet Wipper, a former plaintiffs' attorney, undertook several in-depth audits, especially of tech industry contractors. Based on its settlements with Qualcomm and Palantir, the region recovered a majority of the financial penalties collected by the OFCCP in FY 2017. The Pacific Region has also been the most aggressive region with regard to litigation, especially against Google and Oracle.

The focus of the OFCCP's in-depth audits has primarily been compensation, hiring, and steering. Other regions have begun to use the Pacific Region's model of rejecting market data and employer-controlled factors such as employee time in pay grade as being tainted with discrimination.

Now that the OFCCP has a Trump-appointed director and the agency's budget is expected to be substantially cut, contractors should see some moderation in its approach to enforcement. The OFCCP will continue to focus on compensation and hiring, however. The administration's budget proposal for FY 2018 indicated a continued focus on both tech and finance, and the agency plans "skilled regional centers" in San Francisco and New York City.

We'll keep you posted on these developing issues. In part three of this article series, we'll discuss the ongoing battle with immigration, as well as wage and hour enforcement issues regarding overtime regulations.

Authored by David Fortney and H. Juanita M. Beecher, Fortney & Scott, LLC.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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