Search Results for ‘ofccp’

Wednesday hearing on OFCCP disabled, veterans quotas

Rep. Tim Walberg (R-Mich.) of the House Education and the Workforce Committee will be inquiring into the new “benchmarks” that federal contractors will be required to adopt. Julian Hattem at The Hill has more details, and quotes me:

“They have the power to be intrusive and expensive to contractors that they believe are not playing ball on this,” said Walter Olson, a senior fellow at the Cato Institute. “If the initiative means anything, it means that they are signaling to ‘Please be one of the ones that we think is trying to make these benchmarks, because if we think that you’re one of the ones we think are not trying to make the benchmarks, you will be hearing from us.’”

Earlier here, here and here. As I observed back in February:

To achieve the [7 percent disabled goal], employers will need to hope that large numbers of new hires will turn out to have less visible disabilities, such as back problems, diabetes or (perhaps most useful because most subjectively defined) the array of mental, emotional and behavioral issues that are the most dynamically expansive disability category of all, and which can range from neurosis to learning disability to oppositional defiant disorder to drug and alcohol abuse (if in rehab).

Trouble is, it’s illegal under the ADA for employers to ask job applicants whether they’re disabled, even if the question is offered with favorable intent. So the rules contemplate a fan dance of “invited self-identification” in which workers are given repeated chances at successive stages of the hiring process to announce that they are disabled. Unfortunately for quota compliance, even after getting the job an employee may be too shy to offer such a self-identification, which means the employer may lose any “credit” for the hire. Perhaps equally frustrating, an employee hired with the quota in mind may turn out not to have any disability at all (“Dang it! And she looked so disabled!”).

Oracle fights the federal contract cops in court

Federal administrative agencies are supposed to originate in legislation from Congress if not in the language of the Constitution itself. Ilya Shapiro and William Yeatman:

Yet for decades, the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) has operated a comprehensive enforcement regime, without any basis in the law.

It started in 1965, when President Lyndon Johnson ordered that all government contracts include a set of anti-discrimination provisions—collectively, an equal-opportunity clause. Since then, the OFCCP leveraged this tenuous foundation into a full-blown regulatory scheme, complete with the power to award monetary damages.

In recent years, OFCCP has wielded its power in increasingly aggressive ways. For example, the agency’s onerous and burdensome demands for information often exceed the value of the underlying government contract. Given the absence of statutory constraints—OFCCP is making this up as it goes along—the agency’s evident overreach is perhaps unsurprising.

In a February post here I noted that even when the agency makes up the rules as it goes along “few big companies are willing to fight back, given the breadth of arbitrary power the agency holds over them as well as the distant threat of debarment or other sanctions,” but that this pattern was beginning to change, with first Google and more recently Oracle pushing back. Now Oracle is challenging the government in court and the Cato Institute has joined an amicus brief on its behalf, arguing that “(1) OFCCP’s scheme is far beyond any statutory authority, and (2) striking it down wouldn’t undermine enforcement of anti??discrimination laws.” [Shapiro and Yeatman on brief in Oracle v. U.S. Department of Labor]

Discrimination law roundup

  • More boxes get banned: Connecticut measure will ban asking age on job applications [Daniel Schwartz]
  • In closely divided en banc ruling, Ninth Circuit rules it cruel and unusual punishment for prison authorities to deny inmate sex-reassignment surgery [en banc opinion and panel decision; Josh Blackman on a dissent authored by Judge Patrick Bumatay; I was quoted last year in public radio coverage of the Adree Edmo case]
  • “Fear And Loathing At The Department Of Labor: Has The OFCCP Become A Law Unto Itself?” [Cory Andrews, WLF, more]
  • “Look for the Union Label, not the Gender Role” [Sarah Skwire]
  • Freedom means freedom for everyone: joined by Prof. Eugene Volokh, Cato files First Amendment amicus brief on behalf of Colorado graphic/web designer who objects to working on same-sex weddings [Ilya Shapiro and James Knight on 303 Creative LLC v. Elenis, Tenth Circuit]
  • CBS News misrepresents the state of pregnancy-accommodation law in the workplace [Jon Hyman]

Another company, Oracle, stands up to the federal contract cops

Among the most feared federal regulators, and one created largely through presidential strokes of the pen rather than by Congressional blueprint, is the Department of Labor’s Office of Federal Contract Compliance Programs, or OFCCP. The agency’s investigators go on wide-ranging fishing expeditions seeking evidence of discrimination at large companies, most of which hold federal contracts of one sort or another. “Instead of holding firms accountable when they engage in real discrimination against their employees, the agency has become a government arm for securing high-dollar settlements on dubious grounds.” In its audits demanding large back pay sums, for example, the “government fails to compare like employees to like, and it doesn’t control for perfectly innocent variables that explain pay differences.”

As OFCCP has turned into a combination social engineer and extractor of big-ticket settlements, few big companies are willing to fight back, given the breadth of arbitrary power the agency holds over them as well as the distant threat of debarment or other sanctions. But recently two big tech firms have stepped forward as exceptions: Google, in a dispute we wrote about in 2017 on demands for employee documents, and now Oracle, which is suing rather than accept what it considers an unreasonable settlement demand. [Veronique de Rugy, syndicated/Casper Star Tribune; WSJ editorial; Kate Cox, ArsTechnica; Anthony Kaylin, ASE; Pamela Wolf, CCH]

Discrimination law roundup

  • In August the Fifth Circuit handed down an opinion enjoining guidance on criminal records in employment issued by the Equal Employment Opportunity Commission, an agency to which Congress has accorded no rulemaking powers. Importantly, the opinion casts doubt on the EEOC’s powers to act by guidance in many other areas as well [Federalist Society teleforum with Mark Chenoweth and Eileen O’Connor on Texas v. EEOC]
  • Trump signs “ban the box” measure that restricts criminal-record inquiries by federal contractors, not just the government itself [Thomas Ahearn, ESRCheck; Roy Maurer/SHRM]
  • Also on Federal contract compliance: “Will New Executive Orders Close OFCCP’s Highway to Enforcement Hell?” [Chamber Institute for Legal Reform]
  • “Europe ended its age of religious wars by carving out safe space for each of the contending faiths, guaranteeing that none of them would be able to absolutely crush the others. We ought to try that again.” [Andrew Koppelman, Balkinization on why he thinks Justice William Brennan might have preferred the “Fairness for All” bill (earlier) to the Equality Act; Scott Shackford]
  • “Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): ‘Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there.'” [IJ “Short Circuit” on Johnson v. Ohio Department of Public Safety]
  • Virginia employment law could lurch leftward given breadth of pending legislation [Hans Bader and more]

Discrimination law roundup

  • Can a law ban calls to police by the public that are based on stereotyping or bias? Grand Rapids may find out [Scott Greenfield]
  • Courts and EEOC have held that the federal ban on pregnancy discrimination encompasses a ban on discrimination related to abortion [Jon Hyman] Legislative proposal in Ohio, fortunately given little chance of passage, would make anti-vaxxers a protected group under state employment discrimination law [same]
  • “Finally Some Robust Research Into Whether ‘Diversity Training’ Actually Works – Unfortunately It’s Not Very Promising” [Jesse Singal, British Psychological Society Research Digest, earlier]
  • New EEOC employer reporting requirements represent “an order of magnitude increase in the amount of information the government wants” for one recreation management business [Coyote] How are federal agencies doing on civil rights issues in this administration? Federalist Society panel with Gail Heriot, Kenneth Marcus, Theodore Shaw, Timothy Taylor, moderated by Erik Jaffe;
  • When an outcry arose over its partnership decisions, “Paul, Weiss did what every other mainstream institution does today when accused of racial bias: it fell on its sword.” [Heather Mac Donald, City Journal via Eugene Volokh]
  • “Targeted Advertising and Age Discrimination: An Explainer” [Joe Ruckert, On Labor]

Labor and employment roundup

  • After Harris v. Quinn, states and unions begin dropping mandatory dues collection for home health carers [Michigan Capitol Confidential, Fox; my two cents at Free State Notes on Maryland’s heel-dragging]
  • Macy’s in suburban Boston is opening target for NLRB bid to install gerrymandered “micro-unions” [The Hill, earlier here, etc.]
  • Federal contractors to fork over pay demographics, the better to be sued [Department of Labor]
  • Speaking of the barrage of executive orders coming out of the White House, it’s beyond silly to pretend that all the costly new employment mandates will promote “efficiency and cost savings” [Coyote]
  • “Gay Christian conservative employee sues gay bar for sexual, religious harassment” [Volokh]
  • “House Hearing Highlights Problems in the Fair Labor Standards Act” [Alex Bolt]
  • “Forcing Kids to Do Chores Not a Federal Crime” [Courthouse News, Volokh]

March 20 roundup

  • Sue the NYC welfare department enough, and Mayor De Blasio might make you its chief [Heather Mac Donald, City Journal] Cozy relations between nonprofits and Gotham administration dodge accountability [Steven Malanga, same]
  • Consumer objects to Muscle Milk class action settlement, and there’s a Ted Frank angle [Above the Law]
  • Asking employees whether they’re disabled suddenly mandatory rather than forbidden [WSJ, earlier]
  • “…not trying to tell you how to live your life, I’m just suggesting that it’s a bad idea to put sharp or explosive objects in your…” [Lowering the Bar]
  • “Carnival cruise passengers sue seeking $5,000 a month for life” [Reuters]
  • Husbands could sue noncompliant wives: “UAE law requires mothers to breastfeed for first two years” [Guardian]
  • New symposium on “The State, The Clan, and Individual Liberty” with Mark S. Weiner, Arnold Kling, Daniel McCarthy, and John Fabian Witt [Cato Unbound]

Labor and employment roundup

  • Defend yourself in the press against an employee’s litigation publicity, and you’ve “retaliated”? If you say so, Your Honor [Jon Hyman]
  • Hijab-wearing applicant never informed Abercrombie she needed religious accommodation of Look Policy; 10th Circuit reverses EEOC win [Wolters Kluwer, EEOC v. Abercrombie & Fitch]
  • What, no more drop-ins from other states? “Gov. Jerry Brown signs athlete workers’ comp bill” [L.A. Times, background]
  • ProPublica on supposed decline and fall of employment class actions after Wal-Mart v. Dukes [Ted Frank, my take]
  • How many online readers need to follow OFCCP press releases on federal-contractor law but have so little fluency in English that they require a version in Hmong, Lao, Tagalog, or Urdu? [Department of Labor]
  • What happened to the carpal tunnel epidemic? The condition itself didn’t go away [Freakonomics via Ira Stoll]
  • Gail Heriot on affirmative action at Cato Constitution Day [video]

Hans Bader on disabled-hiring quotas

Building on my post of yesterday, Competitive Enterprise Institute scholar Hans Bader makes several additional points about the Department of Labor’s new hiring quotas for disabled workers at federal contractors:

  • Under the regulations, Bader points out, contractors will be obliged to aim for a seven percent quota for each division, a significantly harder task than if it were just a company-wide quota.
  • Dodgy terminology to conceal the reality of quotas is nothing new; in fact, there’s a long history of federal officials’ resorting to euphemism and vagueness to characterize quotas as benchmarks, goals, and so forth.
  • While disabled quotas, unlike racial quotas, do not raise immediate red flags of unconstitutionality, there is serious doubt as to whether they are actually a lawful application of the statutes Congress has passed in this area. While one such law does refer vaguely to affirmative action for the disabled, that does not necessarily provide a broad enough basis to authorize the new scheme.
  • Will compliance and paperwork on this and a related veteran-quota measure cost federal contractors $6 billion a year, as the Associated General Contractors of America has it? Or less than one-fifth that sum, as OFCCP insists? And does OFCCP face even the slightest consequences if its estimates turn out to be low-balls and the contractors turn out to be right?

[cross-posted, with adaptations, at Cato at Liberty. Edited final paragraph 9/23 to clarify that two quota programs are involved]