U.S. Department of Labor’s proposed 2011 budgets reflects an increased emphasis on enforcement

Lexology
USA February 9 2010
Morgan Lewis & Bokius LLP

On February 1, Secretary of Labor Hilda Solis released the Obama administration’s proposed fiscal year 2011 budget for the U.S. Department of Labor (DOL or the Department). Adopting a theme of “good jobs for everyone,” the DOL’s FY2011 budget reshuffles the Department’s discretionary funds to support new policy, program, and enforcement priorities for the DOL.
Employers should be mindful of the programmatic and policy themes underlying the more technical “dollars and cents” of the budget process. These themes give invaluable insights into the direction the Department intends to move labor and employment law in the coming months.
Summary of Budget Proposal
The DOL’s budget proposal is only one step in a longer funding process that will carry through over the next few years. With that said, however, employers can expect the policies and priorities identified in the Department’s budget to move forward—whether Congress approves the funding or not.
A number of themes emerge that should assist employers in this new regulatory environment:
The DOL prefers corporatewide solutions, not site-specific fixes to a problem, be it an Occupational Safety and Health Administration (OSHA) violation or an Office of Federal Contracts Compliance Programs (OFCCP) audit. Employers should think broadly when problems emerge, and question whether the “band-aid” approach is always appropriate for any given situation.
The DOL will continue to target repeat offenders, and will up the ante significantly when an employer is labeled as a “persistent” problem. Employers need to ensure that any “fixes” made in response to DOL complaints or audits completely fix the problem, and do so in a timely manner— companywide.
The DOL (and the administration as a whole) values open access, making investigations less than confidential, and making press releases the norm of doing business. Employers need to be prepared for external pressure—from the press, from the community, and from the Department—to move in the directions the DOL has identified.
The DOL’s expanded enforcement will be accompanied by a substantial increase in regulatory activity, creating new obligations for employers.
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Office of Federal Contractor Compliance Programs Budget
In his State of the Union address last month, President Obama announced, “We are going to crack down on violations of equal pay laws—so that women get equal pay for an equal day’s work.” The FY2011 budget proposal for the Department of Labor implements this part of the president’s agenda. Secretary Solis described this initiative in her budget presentation as “narrow[ing] the wage gap” and requiring employers to “offer fair compensation.”
The OFCCP currently investigates whether federal contractors’ pay and employment practices are discriminatory, and it will play a key role in the Administration’s expanded enforcement agenda. The OFCCP received a 33% budget increase in FY2010 to $105 million, and “has embarked on an unprecedented initiative” to hire 213 new compliance officers. The FY2011 budget proposal maintains these high funding levels: the OFCCP would therefore receive an increase to $113 million (788 full-time equivalents) for FY2011.

Full Story: http://www.lexology.com/library/detail.aspx?g=01a500b0-4f96-411a-975b-cc1a42cab5da

House OKs Three-Year Extension of E-Verify Program

Workforce Management
October 16, 2009

With action on comprehensive immigration reform pushed off to next year, the House approved a homeland security funding bill on Thursday, October 15, that would renew a government-run electronic employment verification system.
A provision to extend the mechanism, known as E-Verify, for three years was included in a $42.8 billion appropriations measure the House approved, 307-114, that would fund the Department of Homeland Security for the next fiscal year.
The bill was a product of House-Senate negotiations and is expected to be approved by the Senate.
It allocates $137 million to improve E-Verify’s accuracy and compliance rates and $135 million for Immigration and Customs Enforcement to hire special agents for workplace immigration audits.

Full Story: http://www.workforce.com/section/00/article/26/73/45.php

House Passes Walberg Amendment Ending "Race Preferences" in Transportation Programs

The House of Representatives passed an amendment to the Transportation Department's appropriations bill to purportedly end "preferences" in federal contracting. The bill moves to the Senate where it faces an unlikely future. Representative Walberg's statement on the floor of the House follows. The bill language is so broad, it could prohibit regulations that would protect women and minorities from any form of discrimination. It would therefore conflict with the civil rights laws including Title VI of the Civil Rights Act of 1964 as amended. This action tramples upon the legacy of the late Rep. Parren Mitchell who championed minority business enterprise programs.

TRANSPORTATION, HOUSING AND URBAN DEVELOPMENT, AND RELATED AGENCIES APPROPRIATIONS ACT, 2008 -- (House of Representatives - July 24, 2007)
[Page: H8359]
http://thomas.loc.gov/cgi-bin/query/C?r110:./temp/~r110LSkZBA

Mr. WALBERG. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. Without objection, the Clerk will report the amendment.
There was no objection.
The Clerk read as follows:
Amendment offered by Mr. Walberg:
At the end of the bill (before the short title), insert the following:
Sec. __X. None of the funds made available in this Act may be used by the Department of Transportation to promulgate regulations based on race, ethnicity, or sex.
The Acting CHAIRMAN. Pursuant to the order of the House of today, the gentleman from Michigan (Mr. Walberg) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Michigan.
Mr. WALBERG. Mr. Chairman, I come to the floor today to pose an important question to this House, and that question is this: Do we really need race, ethnic or gender-based preferences for roads?
Today I am offering an amendment to the transportation bill we are currently debating that would stipulate no funding in this bill may be used by the Department of Transportation to discriminate based on race, ethnicity or sex.
Though this policy may be motivated by good intention, I agree with Justice Clarence Thomas about the DOT's affirmative action programs where he states, ``The paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution.''
Last fall in my home State, Michiganders voted overwhelmingly, 58 percent to 42 percent, in favor of amending our State constitution to outlaw racial preferences in public education, employment and contracting. Like my constituents in south-central Michigan, I oppose any and all forms of discrimination. But I also support nondiscrimination, the practice or policy of refraining from discrimination.
My support of nondiscrimination compels me to state on this floor that every American deserves equal treatment when competing for business contracts, and our Federal Government should treat all applicants for such contracts on an equal basis. The Federal Government should never view any American as part of a group, but rather look at them as an individual. By granting the Department of Transportation the ability to discriminate based on race or sex, this House would essentially create affirmative action preferences for our Nation's highways.
I urge my colleagues to support my amendment and ensure that all American businesses competing for public works projects are given a fair, nondiscriminatory opportunity.
Mr. Chairman, I reserve the balance of my time...