Is OFCCP In Or Out?

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) continues to maintain a low profile as it awaits its fate under the Trump administration. The critical questions on the agency’s collective mind are (1) whether it will continue to exist at all; and (2) if so, in what form?
While OFCCP has had to struggle to survive before under certain prior administrations, the current threat has its genesis in an encompassing Heritage Foundation report, Blueprint for Reform: A Comprehensive Policy Agenda for a New Administration in 2017. With regard to the U.S. Department of Labor, where OFCCP presently resides, the report recommends reforming or eliminating ineffective and overlapping programs and grants, such as the Job Corps, the Women’s Bureau, and Harwood grants; repealing numerous regulations promulgated during the Obama administration, such as the new salaried overtime requirements; repealing the Davis-Bacon Act; and clarifying the definition of independent contracting versus employment. Specifically, as to OFCCP, the report opined that the agency “has become redundant” with the now strong enforcement powers Congress has given to the EEOC: “Taxpayers should not fund two separate and duplicative anti-discrimination agencies, one for federal contractors and one for all employers.”
Based largely on the Heritage report, in May 2017 the White House proposed that – for the 2018 fiscal year beginning October 1, 2017 – OFCCP staff, budget authority, and all enforcement authority begin transferring to the EEOC. To effectuate the move, the White House proposed reducing the agency’s 2018 budget from its current $105 million to $88 million. By the 2019 fiscal year commencing October 1, 2018, the White House suggested OFCCP should be entirely subsumed by the EEOC and should no longer exist as a separate entity.
Following vocal outbursts from civil rights advocates and less strenuous commentary from the U.S. Chamber of Commerce and government contractor organizations (many of whom make their living from modeling the affirmative action plans OFCCP requires), the rhetoric has subsided to some degree. In recent testimony before a House Appropriations subcommittee, Secretary of Labor Alexander Acosta emphasized that the objective is cost-savings, not reducing enforcement. And in its latest budget offerings, Congress has proposed a $94.5 million budget for OFCCP, up from the White House’s $88 million two months earlier. Nevertheless, this $10 million-plus reduction from current spending levels would further reduce agency staff to approximately 450 employees (down from 785 in 2009 and from its current staffing of 571). It also would force the closure of several offices.
Whether all or any part of OFCCP will disappear within the next two years remains open to debate. The Heritage Foundation is correct in finding OFCCP is largely redundant with the EEOC – and increasingly so. Especially in terms of enforcing anti-discrimination statutes and initiatives, the EEOC has more wide-ranging and effective enforcement tools, and its reach, unlike OFCCP’s, is not limited to federal contractors. While OFCCP takes credit for originating systemic discrimination analytical tools, that role has never been unique to the agency, and in recent years the EEOC has demonstrated more formidable skills in that area. What is truly unique to OFCCP is its jurisdiction and enforcement authority over affirmative action.
The best forward compromise, then, might be a two-fold approach that first transfers OFCCP’s anti-discrimination role to the EEOC. More experienced OFCCP anti-discrimination staff members could transfer to the EEOC, and normal attrition – historically high within OFCCP – may negate any remaining excess personnel concerns. The second step would be to reform Executive Order 11246 to make OFCCP’s remaining affirmative action authority and implementing regulations meaningful, something that the agency’s historical “one size fits all” approach has never successfully accomplished.
Julia Turner Baumhart