A change to a Department of Labor (DOL) agency rule will soon allow regulators to weigh down federal contractors with allegations of discrimination using less evidence, according to experts.
The Office of Federal Contract Compliance Programs’ (OFCCP) new rule is set to go into effect on Sept. 5, and it rolls back Trump-era guidelines that required a certain degree of evidence to issue a pre-enforcement notice, or a notice of a violation, to federal contractors in discrimination claims, according to the rule.
The rule will enable federal regulators to levy complaints without concrete evidence, opening contractors to abuse and attacks on their reputation, the experts told the DCNF.
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“The new rule subjects companies to expensive and intrusive investigations and document demands before the government has even shown a factual basis for an investigation. It amounts to ‘shoot first, ask questions later,’ invites government abuse and imposes needless costs on contractors,” William Jacobson, a law professor at Cornell and president of the Legal Insurrection Foundation, told the DCNF.
The OFCCP has jurisdiction over federal contractors to ensure that they do not discriminate against employers and applicants based on a number of protected characteristics and monitors compliance with affirmative action policies, according to the rule. If contractors are found to not be in compliance and refuse to change their policies, the OFCCP can refer them to the Office of the Solicitor at the DOL for enforcement measures.
“It’s a power grab to steamroll contractors into faster settlements with less due process constraints; without good reason it lowers evidentiary requirements for OFCCP; it’s a return to ‘gotcha’ tactics that we moved away from across the Department when I served at Labor in the Trump administration,” Devon Westhill, an attorney and president of the Center for Equal Opportunity, told the DCNF.
“This is a poor way for the government to operate for many reasons, not least of which, it can encourage perverse behavior like contractors intentionally discriminating to ‘get their numbers right’ to avoid problems with OFCCP,” Westhill continued.
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Federal contractors make up around 20% of the workforce in the U.S., according to a DOL press release.
“So what you’re doing is creating a situation where you can attack a company’s credibility and hurt their business before it can be proved that they’ve done anything wrong… is the way that I see this rulemaking,” Rusty Brown, the southern director at the Freedom Foundation and former policy adviser at the DOL under the Trump Administration, told the DCNF.
The rule change could have far-reaching effects in the economy, with the federal government paying $694 billion to contractors in fiscal year 2022, which was an increase of $3.6 billion from the previous year when adjusted for inflation, according to the Government Accountability Office.
“This final rule strengthens OFCCP’s enforcement by rescinding the evidentiary standards and definitions codified in 2020 (‘the 2020 rule’), which hindered the agency’s ability to pursue meritorious cases,” the rule reads. “OFCCP is instituting a streamlined, effective, and flexible pre-enforcement and conciliation process that promotes greater consistency with Title VII of the Civil Rights Act of 1964.”
The DOL did not immediately respond to a request to comment from the DCNF.
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