Wednesday, February 17, 2010

Shiu’s direction for OFCCP already showing distinctions from recent administrations

Since Patricia Shiu took the helm of the OFCCP last fall, the current administration has taken actions that distinguish it from the previous two administrations. Among those actions are town hall meetings on its Fall 2009 regulatory agenda, a bold commitment to affirmative action, and a highly unusual press release to publicize an administrative law judge’s decision in a high profile and protracted case.

Town hall meetings. On January 12, 14 and 20, 2010 the OFCCP held, via webinars, national town hall “listening sessions” regarding its Fall 2009 regulatory agenda, which was issued on December 7, 2009. The agency followed those up with live sessions in Chicago on February 4 and 5, and additional listening sessions were held in San Francisco yesterday and today (February 16-17) and scheduled for New Orleans on March 17-18.

At the session held the afternoon of February 4 in Chicago, Shiu explained that the agency wanted to reach out to those stakeholders who do not usually submit written comments on proposed regulations. "We want you to participate as we listen," she said. And the indications were that the agency was serious about listening. In addition to Shiu and OFCCP Chicago Regional Director Sandra Ziegler, an attorney from the DOL solicitor’s office and two of the individuals who will be drafting the upcoming regulations, including Terry Hankerson, the OFCCP’s Branch Chief for Regulation Development and Evaluation, were present at the Chicago sessions. A court reporter was also there to transcribe the sessions. In contrast, the previous two administrations would rarely entertain questions from stakeholders during public forums (such as the Industry Liaison Group national conferences), much less hold such sessions specifically for the purpose of seeking public comments.

Affirmative action. The OFCCP has the unique authority to enforce affirmative action requirements that apply only to those employers who have covered federal contracts and subcontracts. Although President Clinton expressed support for affirmative action (the famous quote being “mend it, don’t end it”) both the Clinton (especially in the later years) and George W. Bush Administrations de-emphasized affirmative action in favor of addressing systemic discrimination. Indeed, the Bush Administration rarely mentioned affirmative action in regard to OFCCP enforcement.

Recent statements by Director Shiu indicate that the current administration will not be shying away from this often-controversial subject. “Even though [affirmative action] hasn't been a focal point in the past 10 years, it is a focal point now," Shiu said at one of the town hall meetings in Chicago on February 5, adding that affirmative action means "a level playing field," and not quotas. According to Shiu, "[v]iable and effective affirmative action programs are a critical component of the federal contractor workplace." A document on the OFCCP’s fiscal year 2011 budget justification to Congress posted online also includes details about the OFCCP’s shift in enforcement strategy and its intention to “implement full scale, aggressive enforcement efforts” including strengthening affirmative action.

Press release regarding administrative ruling in Bank of America case. Earlier this month, the OFCCP issued a press release to publicize a January 21, 2010 ruling issued by a Department of Labor Administrative Law Judge (ALJ) in one of the agency’s most notable cases. In the most recent decision issued in the case, the ALJ issued a recommended ruling that Bank of America (then NationsBank) discriminated against African-American job applicants for entry level positions in Charlotte, North Carolina in 1993 and from 2002 to 2005. The case began in 1993 when the OFCCP requested information from NationsBank as part of a compliance review. After the OFCCP advised the bank in 1995 of its findings of discrimination, the bank brought a federal court challenge to the agency’s authority to conduct the review, arguing that the OFCCP’s action violated the bank's Fourth Amendment rights (NationsBank Corp v Herman, 4thCir, 75 EPD ¶45,814 (1999)). After the court challenge failed and Labor Department attorneys filed an administrative complaint, the bank pursued the case in the administrative forum.

Such press releases, while ubiquitous from the EEOC, have been pretty much unheard of for the OFCCP. During the last two administrations, OFCCP press releases (never common, especially compared with the numerous press releases issued by the EEOC) have been limited to settlements following compliance reviews, and, to a lesser extent, new directives or regulatory developments. It’s hard to tell whether this press release is the result of the case’s high profile (it is probably the first or second most discussed case at OFCCP-related conferences) or is the result of the new OFCCP leadership. If the OFCCP, under Director Shiu, continues to issue press releases regarding case decisions, it will be further evidence that the Obama Administration intends to allow for a higher profile OFCCP than previous administrations.

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