US Labor Secretary Alexander Acosta (Shawn T Moore/Department of Labor/Flickr
Last month, Bloomberg BNA’s Ben Penn and Porter Wells reported that the US Department of Labor was planning to relax a policy put in place by the Obama administration to vigorously enforce regulations prohibiting gender pay discrimination by organizations that contract with the federal government. The department was said to be issuing new guidance to supplant a 2013 directive that had given the Office of Federal Contract Compliance a mandate to audit federal contractors for salary bias and make its own determinations as to whether workers were employed in identical or comparable roles for that purpose.
The OFCCP had used that directive to force substantial settlements from several large employers over alleged pay discrimination, and it has been at the center of the ongoing dispute between the Labor Department and Google over pay discrepancies the office has said indicate widespread discrimination (Google vigorously denies this and claims to have no statistically significant gender pay gap at all).
The new guidance, Penn and Wells explained, would “allow businesses to shape the random Labor Department audits by determining which workers investigators should be comparing for possible pay bias” instead. This change would be in keeping with Labor Secretary Alexander Acosta’s approach of assuming good faith on the part of businesses and allowing them to admit and correct compliance issues without fault rather than pursuing investigations and lawsuits. After these plans came to light, however, the department may be backtracking, Allen Smith reports at SHRM. Mickey Silberman, an attorney with Fortney & Scott in Denver, tells Smith that the OFCCP, Labor Department, and various stakeholders are now discussing the proposed changes.
In a decision (PDF) handed down on Friday, administrative law judge Steven Berlin ruled that the US Department of Labor had overreached in asking Google for extensive, detailed data about its employees’ salaries as part of its scrutiny of the tech giant’s pay practices. Google will still have to provide some employee data, as Tony Romm explains at Recode:
Under the proposed order, Google must still provide the Labor Department’s Office of Federal Contract Compliance Programs, or OFCCP, with more data related to employees’ demographic information. That includes name, gender and ethnicity, as well as their salary, as of September 2014. It’s the second so-called “snapshot” of Google’s workforce sought by the agency, which obtained similar information about the tech giant’s employees from September 2015.
But Google has been spared from the government’s other demands — including a request that it submit contact information for all 21,000 of its employees so that the Labor Department can more fully investigate claims of unequal pay. … Nor is Google required to provide salary history and job history for its employees dating back to their hiring.
At a hearing in April, Labor Department regional director Janette Wipper had testified that the department had found evidence of “systemic compensation disparities against women” at Google, which the company vehemently denied. Shortly thereafter, Google released an outline of its pay methodology to refute the department’s claims, adding that its most recent internal analysis had found no gender pay gap. An analysis by Glassdoor’s chief economist also found no statistically significant difference between what men and women earn in comparable roles.
In fulfillment of his campaign pledge to slash US federal regulations, US President Donald Trump on Monday signed four bills reversing rules created by the Obama administration, including the heavily criticized “blacklisting rule” that would require federal contractors to disclose recent labor law violations and allegations thereof and potentially be barred from doing business with the government. According to USA Today, the regulations repealed on Monday also include a Bureau of Land Management rule that expanded the federal government’s role in land use planning and two regulations regarding school performance and teacher training:
The resolutions of disapproval reached the president’s desk through the Congressional Review Act, a rarely used tool that allows Congress to fast-track a bills to reverse regulations. Before Trump, the law had been used successfully only once in its 21-year history.
Trump has now signed a total of seven, a pace that has surprised even experts. “There are several that weren’t on my radar at all,” said Susan Dudley, director of the Regulatory Studies Center at George Washington University. … Trump’s action effectively precludes federal action on any of those rules, since the administration is now barred from issuing any new rule that is “substantially similar” to the ones that were just overturned.
The so-called blacklisting rule, officially titled the “Fair Pay and Safe Workplaces” rule, was already held up in court after a Texas judge ruled last October that it violated employers’ due process and First Amendment rights and issued a preliminary injunction blocking it from taking effect. The rule was widely expected to be among the prime candidates for repeal by the new administration and the Republican Congress: The resolution Trump signed on Monday had been in the works since February. At Lexology, Richard W. Arnholt of Bass, Berry & Sims PLC points out that the rule was never likely to survive anyway:
In an executive order issued last August, former president Barack Obama created a new Labor Department rule requiring federal contractors to disclose recent violations of numerous labor laws, including allegations that are being challenged in court or matters that were settled. The highly controversial rule, colloquially known as the “blacklisting rule” because it would temporarily bar companies with certain labor law violations from obtaining major contracts with the federal government, was temporarily blocked from going into effect in October when a federal judge ruled that it violated employers’ First Amendment and due process rights.
With the election of President Donald Trump and the Republican party holding majorities in both houses of Congress after November’s election, the blacklisting rule is one of many Obama-era executive regulations the new administration is expected to discard. Sure enough, earlier this month, the House of Representatives passed a resolution under the Congressional Review Act to block the rule, according to the Hill:
The resolution now heads to the Senate, where it is expected to pass. CRA resolutions cannot be filibustered. … The resolution not only repeals the rule, but stops the Federal Acquisition Regulatory Council from re-issuing the rule or one similar in the future.
Last week, SHRM’s Allen Smith discussed the argument behind the resolution. The blacklisting rule, opponents argue, would add hundreds of millions of dollars to contractors’ compliance costs and introduce an additional layer of complexity to an already overcomplicated contracting process. Democrats, however, insist that such a regulation is necessary to prevent taxpayers from supporting companies that mistreat their employees:
The Trump Administration has pledged to keep the workplace protections President Obama implemented for LGBT workers by executive order in 2014. That order, in which Obama banned companies with federal contracts from discrimination against LGBT employees, was the first protection ever afforded federal workers on the basis of their gender identity. The Trump Administration’s pledge, a decision they say was made by President Trump, comes after a draft of an executive order reversing Obama’s order had been circulated over the past several days, leading to concerns among the LGBT community. The White House statement, released Monday night to the media, said that, “President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election. The president is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.”
However, while the pledge appears to preserve the status quo of Obama’s order, it still remains possible, as Vox‘s German Lopez points out, that the Trump Administration could issue a new executive order which would exempt federal contractors from Obama’s order if they cited religious reasons. Whether or not Trump, who has expressed support for religious exemptions related to LGBT discrimination cases in the past, pursues such an order remains to be seen.