Article by: Christopher Wilkinson and Gary Siniscalco.
The President released his budget which includes separate proposals for various government agencies. The budget proposal for the Office of Federal Contract Compliance Programs (OFCCP), which oversees affirmative action and non-discrimination requirements for federal contractors, includes a plan for the government to fold the agency into the Equal Employment Opportunity Commission (EEOC). The proposal tasks OFCCP with working collaboratively to develop and implement a plan to complete the merger by September 30, 2018. The proposal touts increased efficiencies in the form of consolidated government EEO oversight and enforcement "under one roof." Perhaps to facilitate this move to a common agency, the administration has proposed slashing OFCCP's budget by over $17 million to $88 million for FY 2018 and reducing staff by 131 positions. This would be accomplished by closing field office locations and other cost savings measures.
The proposed merger raises many questions including:
- Whether the President can confer additional authority to the EEOC with the stroke of a pen?
- How will OFCCP be structured within EEOC?
- Who will conduct enforcement efforts as the regulations implementing Executive Order 11246 confer litigation authority to the DOL Office of the Solicitor and the Department of Justice?
- How will the EEOC take on the affirmative action requirements of the Executive Order?
- Whether the EEOC would be able to obtain enhanced remedies in cases brought against federal contractors (EO 11246 limits recovery to back wages and interest)?
- How would the combined Agency administer Executive Order 13672 providing protections on the basis of sexual orientation and gender identity?
Another notable item in the budget proposal is the inclusion of an Obama-era proposal to open two resource centers in New York and San Francisco. The centers would have skilled compliance officers capable of handling large and complex investigations in the financial services and information technology sectors. However, the language has been modified from previous proposals to strip out any mention of enhanced enforcement. Rather, the centers will focus on compliance evaluations and compliance assistance. The entire budget proposal represents a strong emphasis on compliance assistance rather than enforcement. While pay discrimination will remain a priority, the efforts will be focused on "intensive contractor compliance assistance aimed at educating contractors about their contractual obligations." In addition, the Agency will continue its mega construction project initiative.
Presidential budget proposals are aspirational documents and almost never pass Congress as proposed. In addition, many contractor and worker rights groups do not support merging the agencies. However, the Agency's aggressive tactics in recent enforcement actions culminating in a scathing recent Administrative Law Judge opinion in the Google access case could not have helped the Agency's perception in the eyes of the new administration.
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