October 31, 2020

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Update on OFCCP/EEOC Merger

In a recent letter responding to an inquiry regarding the proposed merger between OFCCP and EEOC, Acting OFCCP Director Tom Dowd detailed the regulatory requirements to undertake a merger, which would take effect in 2019.  He also suggested interim alternatives exist to achieve the efficiencies intended by the merger, implying the proposed merger is unlikely to occur.

Director Dowd’s letter points out that consolidating the two agencies would require:

  • Congressional amendments to VEVRAA and Section 503 to shift enforcement authority to EEOC;

  • Followed by approval of regulations to implement those changes; and,

  • Reconciling the disparate enforcement mechanisms of the two agencies.

Director Dowd states in his letter:

Bridging these and other differences will likely prove time consuming and could delay the expected FY 2019 start for the proposed consolidation, which would result in the concomitant delay in the realization of the intended benefits.

The existing Memorandum of Understanding (MOU) between EEOC and OFCCP could be an alternative vehicle for achieving the efficiencies behind the proposed merger in the short term, says Director Dowd, noting the MOU provides for “contemporaneous opportunities to improve effectiveness and efficiency.” The MOU currently allows the two agencies to coordinate the handling of complaints, as well as share information and data.

Director Dowd highlights that the MOU provides the agencies with the opportunity to

 be able to achieve desired reforms in the near term, without immediate recourse to legislative and regulatory action.

As discussed in our previous posts, there is widespread opposition to the proposed merger.  More active coordination between OFCCP and EEOC, particularly in the area of systemic discrimination cases, could also raise concerns for contractors.  This is likely not the last we will hear about the proposed merger so make sure to check back for updates.

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 243
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About this Author

Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney
Principal

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

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