by David Fortney and H. Juanita Beecher of Fortney & Scott
On January 20, 2017, Donald J. Trump will be sworn in as the 45th President of the United States. Employers have been carefully monitoring the transition to get a sense of how the incoming administration will approach labor and employment issues that affect federal contractors as well as how the Obama administration is handling its last days at the Office of Federal Contract Compliance Programs (OFCCP). Here’s what we know so far, and what we expect in the coming days.
The Incoming Trump Administration
We anticipate that the Trump administration will rescind what it perceives to be “job killing” executive orders and regulations passed by the Obama Administration, notably Executive Order 13673, Fair Pay and Safe Workplaces (aka “Blacklisting”). It is less obvious whether Executive Order 13672 (adding LGBT protections to Executive Order 11246) and Executive Order 13706 (establishing paid sick leave for federal contractors) will be rolled back.
Similarly, President-elect Trump campaigned on the promise of regulatory reform. For example, he stated that he would require each federal agency to prepare a list of all regulations imposed on businesses and rank them from most to least critical, with the latter being considered for repeal. He also indicated that for every new regulation passed, two would be repealed.
|What will the 2016 election mean for the future of workplace laws, regulations and for the federal agencies charged with enforcing them? Join us on January 25 for the first quarterly briefing of 2017 designed exclusively for federal contractors. Learn more!|
As to the revised EEO-1 report, we expect the incoming administration to rescind or revise the deeply unpopular new EEO-1 compensation reporting requirements, as well as alter the Equal Employment Opportunity Commission’s (EEOC’s) recently released Strategic Enforcement Plan for fiscal years 2017-2022, which outlines the agency’s top enforcement priorities.
Changes in Key Agency Leadership and Direction
Department of Labor (DOL). On December 8, President-elect Trump announced that he would be nominating fast-food executive Andrew Puzder to be secretary of Labor. Puzder is a vocal critic of a $15 per hour federal minimum wage and expansive interpretation of the joint employer doctrine while he is in favor of temporary legal immigration to fill lower-wage jobs, primarily through the H-2B visa program.
While no nominee has been announced for Deputy Secretary of Labor, one name that has been getting attention is Patrick Pizzella, a member of the Federal Labor Relations Authority. It is also rumored that Tammy McCutcheon, the administrator of the DOL’s Wage and Hour Division under President George W. Bush, is being considered for solicitor of Labor.
Puzder’s confirmation hearing originally scheduled for January has been rescheduled to February as he was unable to get the necessary paperwork done in time. The delay has given Puzder’s opponents a chance to gather information to oppose his nomination.
OFCCP. The OFCCP is currently headed by Acting Director Thomas Dowd, following the departure of Director Patricia Shiu in November. There is no widely reported candidate to head the agency.
EEOC. When President-elect Trump takes office, the EEOC will be composed of one Republican (Commissioner Victoria Lipnic) and three Democrats (Chair Jenny Yang, Commissioners Chai Feldblum, and Charlotte Burrows).
The President-elect will have the opportunity to select a new Republican Commissioner and potentially elevate him or her to Chair, as well as name a new EEOC General Counsel. Although it is customary for the Chair to step down so the President’s party controls a majority of the five-member Commission, Chair Yang may stay on board until her term expires on July 1, 2017.
The Outgoing Obama Administration
While the Trump administration prepares to take charge, the current Obama administration continues to aggressively pursue its agenda. This past week, the OFCCP announced two settlements—one of which with LexisNexis was a compensation settlement for $1.2 million. The OFCCP also sued Google for what it alleged was Google’s refusal to provide the OFCCP with detailed compensation data. These tactics are likely to continue at least until Secretary-designate Puzder is confirmed.
David Fortney and Nita Beecher of Fortney & Scott will provide the latest details to federal contractors in their Federal Contractor Quarterly webinar. Join Fortney and Beecher as they co-present, “Federal Contractors Quarterly Briefing: The Latest on OFCCP Rules, EEO-1 Pay Equity Reporting, Overtime and Minimum Wage, and More,” on January 25, 2017. Click here to register for this timely event.
|David S. Fortney is a co-founder of Fortney & Scott, LLC, a Washington, D.C.-based law firm that focuses on workplace related matters. Mr. Fortney’s OFCCP practice includes representing and counseling federal contractors on complying with contractors’ nondiscrimination and affirmative action obligations enforced by OFCCP. Mr. Fortney is also a co-founder of The OFCCP Institute, a Washington, DC-based nonprofit employer association (not affiliated with the U.S. Department of Labor’s OFCCP) that serves to educate federal contractors. Mr. Fortney has testified before Congress and the EEOC addressing federal contractors’ interests, and he frequently lectures and writes on OFCCP matters.
H. Juanita (Nita) Beecher is a nationally recognized expert on Office of Federal Contract Compliance Programs (OFCCP) and U.S. Equal Employment Opportunity Commission (EEOC) matters. She is Counsel to Fortney & Scott, LLC with a focus on OFCCP regulatory affairs. Ms. Beecher’s primary focus is labor and employment law with substantial experience with class investigations by the EEOC and OFCCP. She has more than 30 years of experience in labor and employment law particularly with class investigations by the OFCCP and the EEOC. From 2000 to 2015, she led networks of senior diversity, EEO and affirmative action corporate practitioners as well as senior in-house labor and employment lawyers.