By Christian Josi
December 17, 2019 at 5:00 am ET
On Sept. 30, 2019, Eugene Scalia was sworn into office, replacing Alexander Acosta as Secretary of Labor. Scalia was a great choice and it was time for the meek leadership of Acosta to end. Acosta was wrapped up in a controversial prosecution of Jeffrey Epstein and was widely panned as a do-nothing labor secretary.
President Donald J. Trump praised Scalia as “one of the most qualified people ever confirmed as Secretary of Labor. He will use his skills as he has over the years — and he has built an extremely distinguished career — to fight and win for the American workforce.” Scalia worked in the administration of President George W. Bush as Solicitor of Labor. He was also a speechwriter for Secretary of Education William Bennett during the Reagan Administration. Scalia is highly qualified and an expert in labor law.
The first reform needed in the Department of Labor is a wholesale reset at the Office of Federal Contract Compliance Programs (OFCCP). The Chamber of Commerce put out an excellent set of recommendations for reform at the agency. The agency is well known in the business community for engaging in fishing expeditions when they were originally “tasked with enforcing the affirmative action and nondiscrimination requirements of federal contractors.” The Chamber concluded that the “OFCCP has become an agency that appears to focus more on garnering splashy headlines and securing high-dollar settlements than it does simply pursuing its admirable, if at times, unglamorous mission.” The agency is “often antagonistic toward the regulated community, ignores the myriad and effective diversity efforts undertaken by contractors, engages in overly broad and unreasonable fishing expeditions for employment data, and pursues take it or leave it conciliation efforts.” They are driving reputable companies away from conducting business with the federal government for fear of litigation harassment by progressive lawyers embedded at the Department of Labor.
The goal of the Department of Labor should be to work with companies that do work with the federal government as contractors as opposed to a hostile relationship. The OFCCP has used the power to disqualify federal contractors as a hammer to force companies to comply with unreasonable requests. In the last weeks of the Obama administration, the Department of Labor aggressively went after Google and Oracle with wild accusations of discrimination and the threat of government action if these companies did not comply with requests. Former Secretary Acosta not only did not back away from these actions, he allowed liberal lawyers at the OFCCP to continue lawsuits. Google fought back against the claims and Oracle went to federal court recently to make the argument that the Department of Labor does not have any law authorizing them to take the extreme actions they have taken over the past few years.
Secretary Scalia can reform this out-of-control agency within his Department of Labor and reel them in. It is reasonable for the government to work with contractors to make sure they are complying with anti-discrimination laws and to get away from demanding employment statistics from contractors, then manipulating the data to allege discrimination. The Chamber wants two reforms imposed on the OFCCP. The first is to return to the agencies core mission of “fostering true affirmative action by federal contractors and subcontractors,” and abandon “an opaque, plaintiff-style enforcement agency” that has proven hostile and fishing for discrimination when it does not exist. Secretary Scalia is in a great position to right the ship in an agency at the Department of Labor that is taking actions that slow economic growth.
Trial lawyers don’t produce anything other than lawsuits. Empowering them to extort money from big tech companies by using manipulated statistical analysis to prove discrimination would open the door for endless litigation. The left would love nothing more than to sic progressive lawyers on the biggest companies in America with only a government-demanded data set of employment statistics to get large settlements and to get rich. If you think I am overstating the case, this is exactly what happened with Google — they were hit by the Department of Labor with a suit, then employees of Google used that data to engage in a class-action lawsuit that ended up getting dismissed.\
The reduction of red tape has been a hallmark of the Trump administration, yet there is still a ways to go to rid the administration of holdover actions by President Obama that still hurt growth today. Secretary Scalia is the right man for the job and he should focus some of his efforts at cleaning up the mess Obama left behind at the OFCCP.
Christian Josi is a veteran of international center-right politics, and a frequent columnist for a variety of publications. He is the founder and managing director of C. Josi & Company, a global communications resource firm based in Virginia Beach and Washington.
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