Posts Tagged ‘government contract compliance’

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]

Please advise IBM of any mint issues

A tweet by Robert Swirsky:

A followup photo includes the fateful mint jar. In subsequent discussion, attorney Peter Orlowicz points out that general federal ethics regulations “exclude modest items of food/refreshments from the definition of ‘gift’; it’s not clear that IBM was being over-cautious, though, given that supplementary agency regulations as well as state and local regulations have been known to go further than the general federal standard.

September 9 roundup

  • Mess surrounding ex-Willkie partner could drag down giant credit card settlement after exposure of “burn this” emails to adverse lawyer [Alison Frankel, WSJ Moneybeat, New York Post]
  • “The war against homeschooling is…not a fight to make sure children are safer/better educated” [Bethany Mandel, Acculturated, reacting to ProPublica/Slate piece raising alarms about how, e.g., 48 states don’t make parents go through background checks before being allowed to homeschool their kids] ProPublica also complains that parents with criminal records are allowed to homeschool; did they run this by the “Ban the Box” advocacy groups?
  • President Jimmy Carter’s deregulatory record looks even better in retrospect [Cato podcast with Peter Van Doren, Caleb Brown]
  • Ugly tactic: protesters rally at home of Judge Bunning in Kim Davis case [River City News, Kentucky; links to some other instances]
  • “Obama celebrates Labor Day by making it more expensive to hire employees”; executive order requires federal contractors to provide paid sick leave [W$J, Sean Higgins/Washington Examiner (“offering paid leave is already the norm among the vast majority of federal contractors”)]
  • “FBI, DEA and others will now have to get a warrant to use stingrays” [ArsTechnica]
  • After the prosecutorial abuses: “John Doe Reform Bill Moves to Assembly” [Right Wisconsin]

Labor roundup

Labor and employment roundup

Labor and employment roundup

Labor and employment roundup

  • Loosen constraints on local and state deviation from the NLRA labor law model? Idea gathering force on right also draws some interest from left [Ben Sachs, On Labor, on James Sherk/Andrew Kloster proposal for right to work laws at city/county level]
  • Justice Alito dissents from Supreme Court’s denial of certiorari in Kalamazoo “employee buyer’s regret” case where asked-for transfer was later construed as retaliation [Jon Hyman]
  • NLRB’s franchise power grab could prove costly to small business [Diana Furchtgott-Roth, Connor Wolf]
  • A very different country: Supreme Court of Canada constitutionalizes a right of public employees to strike [On Labor]
  • Average full-time California municipal employee got 2013 compensation package of nearly $121,000 [Steven Greenhut]
  • Perfect, now let’s mandate sick day banking nationwide: “Montgomery [County] fire department has history of sick-day abuse among workers due to retire” [Washington Post]
  • Yet more unilateralism: Obama administration tightens regs on federal contractor sex discrimination [Roger Clegg]

For federal contractors, a hundred little compliance plans

Coyote, updated, and Hans Bader write about yet another new burden loaded on federal contractors, involving the creation of separate affirmative action plans for each installation, including those that do no federal contract business. One result will be to pressure some firms that do only a little federal work to get out of the government contracting business entirely, rather than submit to escalating cost and open-ended legal consequences.

Meanwhile, notes Bader, another part of the Obama administration’s rapidly proliferating “pen and phone” regulation of the workplace “will make it very costly for employers to challenge dubious allegations of wrongdoing against them,” by “[allowing] the government to cut off the contracts of contractors and subcontractors that do not ‘consistently adhere’ to a multitude of complex federal labor, antidiscrimination, harassment, and disabilities-rights laws.” Even more damaging, it will forbid many applications of pre-dispute arbitration to workplace disputes, thus shunting grievances into courtroom litigation. “It will allow trial lawyers to extort larger settlements from companies, and enable bureaucratic agencies to extract costly settlements over conduct that may have been perfectly legal.”

Earlier on regulation of federal contractors, a program driven by executive orders and particularly at the mercy of White House discretion, here and here, here, here, here, and generally at this new tag.

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]