The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is proposing to update its current discrimination complaint form and the complaint-filing process. The proposed changes seem innocuous enough on the surface but may run into legal challenges.
The proposed changes to the complaint form itself are not particularly substantive. If you are curious, the OFCCP’s supporting statement actually does a pretty good job of describing the proposed changes and the proposed forms themselves can be downloaded here.
It’s the proposed process change that should cause concern. Currently, if an employee files a complaint with a federal agency tied to protections under Title VII of the Civil Rights Act or the Americans with Disabilities Act (ADA), the employer must be notified of the complaint within ten (10) days. If the employer is a federal contractor, such complaints will be considered to have been “dual-filed” with both the EEOC (which enforces Title VII and the ADA) and the OFCCP (which enforces nearly identical provisions in E.O. 11246 and Section 503 of the Rehabilitation Act, respectively). There is no similar notice provision under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), though the agency seems to think there is.
The OFCCP is proposing to create a “pre-complaint inquiry” step in the complaint filing process by which the agency can evaluate whether the “inquiry” is timely, whether the agency has jurisdiction to investigate it, and whether it should be referred to another agency or otherwise closed. The kicker is, unless an “inquiry” is picked up and investigated as a “complaint,” no notice will be sent to employers when a “pre-complaint inquiry” is filed.
The agency’s stated reason is that these notices could lead to retaliation, particularly when the complaint is not investigated. The OFCCP rather conspicuously does not discuss the reason for the current notice provision and whether and to what extent lawmakers took retaliation into account when drafting the law. Instead, the agency appears to be simply ignoring the Legislature’s intent because retaliation could occur. Note that “retaliation” is one of the complaint “basis” options on the current complaint form.
Note also that the OFCCP maintains detailed data about both audits and complaint investigations. The agency is perfectly capable of using that data to demonstrate trends involving individuals filing initial complaints, followed by retaliation complaints. The agency could also likely break those numbers down by those complaints that were ultimately investigated versus dismissed. And if the agency’s data indicated a problem with contractors retaliating against individuals who file OFCCP complaints, that might be worth talking about. But for some reason, they have not, and instead they have chosen to rely on a blanket and unsubstantiated declaration to strip federal contract employers of their rights under federal law.
Can They Do This?
Good question. In general, the underlying laws allow the federal agencies that enforce them quite a bit of latitude to develop the necessary processes and procedures. In general, though, the agency’s actions must be based on and traceable back to authority granted in the underlying law. Here, the agency must by law accept and investigate complaints, so they must develop a complaint process. That process will be largely up to the agency. But neither the law nor the implementing regulations bother to define the term, “complaint.” And that is where the OFCCP thinks they have wriggle room.
When does an “inquiry” become a “complaint?” Apparently when you start talking about what happened in detail.
The “inquiry” form contains the user’s name and contact information, an alternate contact, information about representation (if applicable), date(s) alleged discrimination occurred, an indication of whether or not others may have been harmed as well (is it a class action?), information about the employer, the “basis” for the complaint (protected characteristic(s) involved), the “employment practices” involved (hiring, promotion, termination, pay, etc.), and whether or not the user has “filed this allegation” (not a complaint!) with another federal or local agency (such as the EEOC).
If the OFCCP decides to pick up the “inquiry” and investigate it as a “complaint,” the user will have to fill out a second form, providing contact and alternate contact information (again), employer information (again), dates of alleged discrimination (again), the “basis” of the complaint (again), and information on whether or not the “allegation” (now a complaint?) has been filed with anyone else (again). But instead of checking a box for, say, hiring discrimination, the user will be asked to describe the alleged hiring discrimination.
The agency appears to believe that its level of detailed knowledge about the complaint is what makes it a complaint. Why the agency believes that and what that belief might be based on is a complete mystery to this author. The agency is not proposing to define, “complaint,” and no definition of the term we can find addresses the level of detail required for a complaint to be a complaint. The most common definition is simply “a statement that a situation is unsatisfactory,” a box the proposed “pre-complaint inquiry” form checks pretty thoroughly.
So can they, or can’t they? They probably can. Not necessarily because they actually have the authority to do so, but because it will likely take a lawsuit to stop them, which seems unlikely given the relatively low stakes.
By the OFCCP’s own numbers, the agency received 2,075 complaints in their Fiscal 2022. Of those, just 4.9% (101) were assigned for investigation. The OFCCP completes about 80 complaint investigations per year. If the OFCCP’s proposal goes through as-is, that would represent a maximum of 1,974 people trying to file a complaint with the OFCCP for which employers will receive no notice. But many of those are likely to be dual filed with the EEOC and therefore likely still will result in notice to the employer, so the real impact here may be relatively minor.
By contrast, the EEOC will field between 60,000 and 90,000 complaints in an average year. If the EEOC were to adopt a similar strategy, that would likely result in tens of thousands of instances where employers would be deprived of their legal right to notice of the complaint. The stakes just are not high enough for anyone to fire up the litigation machine over the OFCCP’s proposal.
The OFCCP must get these proposed changes approved by the White House Office of Management and Budget (OMB) and both agencies are or will be soliciting public comment. Those comments must be considered by the agencies and addressed in the OFCCP’s final proposal to OMB and OMB’s final determination regarding approval. If the OFCCP is unconcerned about Constitutional separation of powers, perhaps OMB will be interested.
Currently, the OFCCP is soliciting public comment. If you are interested in participating in the regulatory process, you can file your comments here by March 20, 2023.
After the OFCCP considers the comments received and makes any changes they wish to make to their original proposal, the package will be submitted to OMB and we will have another opportunity to raise concerns at that time.
If you have questions, concerns, or just want to chat about this or any other OFCCP compliance-related matter, feel free to reach out to us at BCGi@Biddle.com.