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What strategy is most effective for OFCCP?

Scott Kushner

Bloomberg publication discusses OFCCP audit enforcement across multiple administrations

That’s the question Bloomberg attempted to answer, rummaging through governmental data and providing analysis on the results of the Bill Clinton, George W. Bush and Barack Obama administrations to see which tact reaped the greatest benefit.

In doing so, it could help predict a path for the Trump administration, which reportedly avoided a government shutdown, thanks to a $1 trillion agreement that is expected to keep all agencies running until October.

Bloomberg gives a thorough analysis of the financial payout the OFCCP levied during the previous administrations and discovered surprising similarities, despite diametrically different approaches. “But if only back pay recovered for applicants and employees is taken into account, then total monetary relief collected in settlements by the OFCCP in each administration is in roughly the same ballpark—$80 million to $100—despite differences in budgets, staffing levels and enforcement priorities.”

Although it received just three-quarters of Obama’s $106 million budget and significantly fewer staff members, the Bush administration pulled in similar results, according to these results.

Those figures, coupled with the longer, probing nature of audits in the Obama administration – which came under fire by contractors throughout the tenure of former OFCCP Director Patricia Shiu - could lead to an about-face from the new Republican administration.

“The agency, under (the Bush administration’s) ‘active case management,’ would close a compliance review if an abbreviated desk audit of a contractor’s employment data revealed no statistical indicators of discrimination.

The OFCCP under Obama, by contrast, conducted more comprehensive compliance reviews using an approach known as ‘active case enforcement.’ Both employee-side and management-side stakeholders have previously speculated that budget cuts might lead the OFCCP to return to some form of tiered audits, but that remains to be seen.

Management-side representatives have been critical of the OFCCP’s approach under the Obama administration, with some viewing it as inefficient because it led to lengthier audits of fewer contractor facilities and lower monetary recoveries.”

Overall, however, Bloomberg stated there was no firm stance to be taken on which side was more successful between the Bush or Obama administrations’ approach, claiming the reported numbers were not exactly “apples-to-apples” because of differentiating pathways to levying fines.

“Documents showing an apples-to-apples comparison for financial recoveries across administrations don’t appear to be publicly available. And the OFCCP denied Bloomberg BNA’s recent Freedom of Information Act request for such information.

Former Clinton and Bush officials contacted by Bloomberg BNA either declined to comment or weren’t immediately available to comment.

Assuming that back pay and interest constituted 25 percent to 30 percent of the Bush administration’s remedies, those recoveries could fall anywhere between $82.4 million and $99 million, give or take, between fiscals 2001 and 2008.”

So, even more than 100 days in, there’s still no telling exactly how the Trump administration will move forward.

The full article can be viewed here: https://www.bna.com/past-monetary-awards-n57982087074/

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