Posts Tagged ‘government contract compliance’

Oracle fights the federal contract cops in court

Federal administrative agencies are supposed to originate in legislation from Congress if not in the language of the Constitution itself. Ilya Shapiro and William Yeatman:

Yet for decades, the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) has operated a comprehensive enforcement regime, without any basis in the law.

It started in 1965, when President Lyndon Johnson ordered that all government contracts include a set of anti-discrimination provisions—collectively, an equal-opportunity clause. Since then, the OFCCP leveraged this tenuous foundation into a full-blown regulatory scheme, complete with the power to award monetary damages.

In recent years, OFCCP has wielded its power in increasingly aggressive ways. For example, the agency’s onerous and burdensome demands for information often exceed the value of the underlying government contract. Given the absence of statutory constraints—OFCCP is making this up as it goes along—the agency’s evident overreach is perhaps unsurprising.

In a February post here I noted that even when the agency makes up the rules as it goes along “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 that this pattern was beginning to change, with first Google and more recently Oracle pushing back. Now Oracle is challenging the government in court and the Cato Institute has joined an amicus brief on its behalf, arguing that “(1) OFCCP’s scheme is far beyond any statutory authority, and (2) striking it down wouldn’t undermine enforcement of anti??discrimination laws.” [Shapiro and Yeatman on brief in Oracle v. U.S. Department of Labor]

Religious accommodation and LGBTQ rights

Are religious exemptions to discrimination laws, in areas like foster care, adoption, higher education, and government contract compliance, an “assault on LGBTQ rights”? Cato has now reprinted my comments last month for a House Oversight Committee hearing on that subject. The hearing itself (at which I was not a witness) can be viewed here.

Discrimination law roundup

  • More boxes get banned: Connecticut measure will ban asking age on job applications [Daniel Schwartz]
  • In closely divided en banc ruling, Ninth Circuit rules it cruel and unusual punishment for prison authorities to deny inmate sex-reassignment surgery [en banc opinion and panel decision; Josh Blackman on a dissent authored by Judge Patrick Bumatay; I was quoted last year in public radio coverage of the Adree Edmo case]
  • “Fear And Loathing At The Department Of Labor: Has The OFCCP Become A Law Unto Itself?” [Cory Andrews, WLF, more]
  • “Look for the Union Label, not the Gender Role” [Sarah Skwire]
  • Freedom means freedom for everyone: joined by Prof. Eugene Volokh, Cato files First Amendment amicus brief on behalf of Colorado graphic/web designer who objects to working on same-sex weddings [Ilya Shapiro and James Knight on 303 Creative LLC v. Elenis, Tenth Circuit]
  • CBS News misrepresents the state of pregnancy-accommodation law in the workplace [Jon Hyman]

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