When is an OFCCP “Placement Goal” a “Utilization Goal” or a “Benchmark Goal” or a “Quota”?
This month’s column is about the magic, majesty and meaning of words.
One of my favorite books is Lewis Carroll’s “Through The Looking-Glass and What Alice Found There” (and even before The Jefferson Airplane and Grace Slick immortalized it in the 1967 rock song “White Rabbit” and the Hippy movement adopted the book as a prescription to expand their minds by eating psychedelic mushrooms and other hallucinogens). Among many other things, Through The Looking-Glass gave Professor Carroll, an English theoretical mathematician and logician, a chance to marvel at the wonder of the English language:
Years later as a law student in Washington D.C., I had one of many occasions to reflect back on Humpty Dumpty’s comments in Through The Looking-Glass. That morning, I picked up The Washington Post newspaper and noticed a front page story reporting the conclusion of a decade-long epic legal battle in the food industry. The industry, as it turned out, was trying to classify, for advertising purposes, what a Pringle was. Was it a “Potato Chip”, as its manufacturer argued with hope (given the GREAT popularity of what was an emerging billion dollar a year chip industry (not to be confused with semi-conductor chips…although that industry was also emerging, but went poorly with guacamole and salsa))? Or was a Pringle something else, as the rest of the potato chip industry argued fearful that the Pringle might set the standard for the industry and diminish the brand and value of their much more modest chips (given that the newly developed and fabulous Pringle…was so perfect in shape, so perfect in texture…and was so perfect in taste that one could not eat just one, but was compelled to eat the entire can once one so eagerly and savagely ripped that cover foil off the top. (But, who could foresee in 1973 the coming tidal wave of Vinegar and Sea Salt chips???) So, “what is a Pringle” was the legal issue before the court which some of the best lawyers in the best law firms in America had squared off to characterize…as a matter of law.
For me, the Pringle’s case gave great strength to Humpty Dumpty’s observation that speakers can twist words to mean many things – especially lawyers who are trained to pour content into even seemingly simple everyday words – even verbs (just ask President Clinton, how right Humpty Dumpty was about those stubborn verbs, like…what the word “is” means!!).
HELD: A Pringle is NOT a potato chip. That’s right: a Pringle is not a Potato Chip. It never was! This is true even though Pringles are made from potatoes and fried and served in the form of a chip. Rather a “potato chip”, the Court held, is a “process” (no kidding) and NOT a product. Because a Pringle is not made using the traditional potato chip process, Pringles – as a matter of law – are NOT potato chips. Rather, Pringles just have that appearance…but they really are not “potato chips”. (The next time you are in the grocery store, pick up a can and read it to see how Pringles TO THIS DAY are now marketed, and described in the U.S. Rather than being a “potato chip”, they are a “______ _____”. (By the way, Pringles are indeed “Potato Chips” in the United Kingdom (for tax purposes). How can one thing be two things at once? Ask a tax lawyer to whom mysteries like this make perfect sense.)
But before I unpack what language content OFCCP is now trying to pour into the already confusing enough “goals” definition discussion in the Executive Order, and now Section 503 and now VEVRAA, let me clean up a few small issues of mass confusion involving other recent OFCCP pronouncements…and then we’ll get back to the utter analytical confusion now gripping OFCCP’s discussion of “goals”.
First, with the exception of BNA (the legal publishing house), the Chicago-based law firm of Winston & Strawn, the Law Firm of Littler Mendelson, and the VERY carefully drafted DOL/OFCCP writings, not a single other law firm, vendor, blog or webinar speaker I have heard or read (and I have heard and read too many lately) has gotten it right when describing what OFCCP did on August 27 as to its VEVRAA and 503 proposed regulations. Here are some of the erroneous forms of reports I have heard and read:
The Official OFCCP Phraseology: What Does “Announce” Mean?
This is actually very important, as a matter of law…and is not just semantics or author’s choice of style and/or wording. Describing what OFCCP did or did not do has serious legal consequences. In fact, both the OFCCP News Release and OFCCP’s website description of the VEVRAA and Section 503 Rules were VERY careful to say either that Vice President Biden had “announced” or OFCCP was “announcing” on August 27 that OMB had approved OFCCP’s proposed Rules. (“Rules” is the formal and official administrative law reference to what we call on the street “regulations”.) OFCCP has done NOTHING. But, it never claimed it did! OFCCP is innocent of this misinformation campaign. Most of the bloggers/vendors imagined more than there was. OFCCP has not “released” or “published” or done anything, in fact, to its regulations. Rather, OFCCP has merely passed another trail marker (albeit a very important one) in its long path to obtain a “Final Rule” (i.e. a regulation as we call it on the street) which is also both “legally effective” and is “paperwork effective” (my language: see below).
OFCCP still has to clear four more important hurdles before its proposed VEVRAA and 503 regulations become “legally effective” and “paperwork effective”. And, I have not heard a single commentator, including the OFCCP commentators, get the discussion right as to how to properly calculate the timing of these potential Rules. Here are the hurdles (I continue to offer no odds on whether OFCCP will achieve all four, let alone when. Who knows? No one knows, not even Secretary of Labor Perez or Pat Shiu. So, why guess if one does not truly know?).
Hurdle 1: OFCCP has to publish the proposed regulations (which OMB has now approved) in the Federal Register, as all the vendors, pundits, commentators and OFCCP I have heard/read have accurately reported. OFCCP reports it has that authority and reports its proposed regulations are in line for printing at The Federal Register within “1-2 weeks” (from August 27, 2013=September 11, 2013 if you run that two weeks out). (OMB and OFCCP are obviously not done with the regulation drafting exercise, and the regs are still “coming out of the oven”.) So, let’s see what the real publication date is and whether all the log-rolling on Capitol Hill as to Syria affects these regulations. (The President is currently selling on Capitol Hill everything but The White House china in an effort to avoid defeat of his proposal to attack Syria…and nothing is politically safe from political barter at this point. How badly do federal contractors want to stop these regulations and do they care if The President has the Sixth Fleet fire a couple dozen smart missiles at Syrian military targets from their battle positions in the Mediterranean?) NOTE: Former OFCCP Director Ellen Shong Bergman and I still have regulations waiting to be published in Final form from 1983 which OMB approved to be published in the Federal Register. Really.
Hurdle 2: The regulations are not “legally effective”, by their very terms, for 180 days from publication, in Final form, in the Federal Register, as all the vendors, pundits, commentators and OFCCP have accurately reported. The Administrative Procedure Act governs this legally effective date by requiring, other than for “emergency” Rules (affecting health and safety), that Final Rules incubate for at least 30 days from publication in the Federal Register to give ample warning to the public to comply. (However, Pat Shiu heard the contractor community’s cries about needed “lead time” to comply if she went forward with these Rules, so she took pity and gave you MUCH more time than legally required of her.) Ask former (Carter Administration) OFCCP Director Weldon Rougeau whether his proposed regulations published in Final form in the Federal Register in December 1980, with only a 30-day runway to become “legally effective”, ever ripened into “legally effective” Rules. He will tell you they never became legally effective, in fact, and (Clinton Administration) OFCCP Director Shirley Wilcher will tell you that she had to withdraw the Rougeau Final regulations 20 years later in her 2000 Final OFCCP regulations (which did become “legally effective” – after a tortuous and lengthy journey).
But again: how badly do federal contractors want to stop OFCCP’s (still only) proposed (at this writing) regulations? Irrespective of his position on critical issues of the day and the economy (still faltering with record numbers of unemployed and discouraged workers in the United States), The President is now losing power in Washington day-by-day, like an old battery, as a natural function of where he is in the political process. He is a lame duck and Congressmen and Senators want to build constituencies for re-election…and not offend potential corporate donors. These are still perilous times for OFCCP’s proposed regulations, but who knows, maybe The White House has decided to just jam these very unpopular and economy-burdening regulations through: “Damn the torpedoes, full speed ahead”.
Hurdle 3: This is the first of the two things all the vendors, pundits, commentators and even OFCCP have gotten wrong. And, it COULD be VERY IMPORTANT to federal contractors depending on what OMB does or does not do in the next 6 months (even assuming OFCCP does publish the proposed regs in Final form and they do become legally effective 180 days thereafter). Here’s what they don’t know: All the paperwork portions of the regs must undergo YET ANOTHER post-publication (in Final form in the Federal Register) OMB review and approval. Even though OMB has approved OFCCP’s proposed and now Final (proposed) regulations, OMB has legal obligations to review them yet again AFTER they are published in Final form (since they might have changed) BEFORE those portions of the regs imposing paperwork or data collection burdens on the regulated community may become – what I will call – “paperwork effective”.
Having just a “legally effective” regulation is not enough since OMB still has obligations pursuant to the Paperwork Reduction Act, among several other Carter-era “cost-benefit” paperwork justification statutes. (Remember that Jimmy Carter came to The White House, as a Democrat, nuclear engineer and peanut farmer, accustomed to detail and balancing his books, on a pledge to shrink and consolidate the federal government and put it again on a sound fiscal basis. He thus introduced to Washington the foreign concept of staying on budget and using “cost-benefit” analyses to help hold-in-check spiraling regulatory costs the Nixon White House had unleashed in its zeal to build a large socially responsible government. Remember The White House trumpets? Richard Nixon loved big government. The federal bureaucracies were never happier than during his reign as federal building after federal building popped up overnight in downtown D.C. and building cranes littered the skies over what had been a small, sleepy southern town…until then (goals and time tables=1972; 503=1973; VEVRAA=1974; major amendments to Title VII=1972; OSHA=1972; EPA=1973)…and so on and so on. What a glorious time it was in Washington…there was electricity in the air and the excitement in the streets was palpable and invigorating: public interest groups, government employees and wide-eyed Hippie Baby-Boomers (now recovered from the mushrooms and psychedelic drugs of the 60’s) thought they could do anything. But the costs of doing everything were almost immediately staggering…a problem Nixon/Ford left to Carter as inflation raged, interest rates shot up to in excess of 20% (where usury ceilings did not restrain them) and the country suddenly tottered on bankruptcy…the first time in modern history.)
It is little remembered now, but to show you the power Jimmy Carter infused into OMB, let me take you back to OFCCP Director Shirley Wilcher’s and Harold Busch’s truly “game-changing” Executive Order 11246 regulations which became legally effective in November 2000. Because those sweeping regulations changed every component part of Executive Order 11246 AAPs for Minorities and Women, OMB had to approve those regulations, again, after Shirley published them in Final form in the Federal Register in October 2000. It took OMB until January 2001 to approve the paperwork portions post-publication of OFCCP’s Final regulations in the Federal Register. So, while all the discrimination law changes in Shirley’s and Harold’s regulations became “legally effective” in November 2000, the changes to AAP construction and architecture, requiring new analyses and recordkeeping, did not become “paperwork effective” until almost 3 months later…in January 2001.
Why was that gap in approval of the paperwork portions important to federal contractors? While Harold would never tell me if it was just fate and the lethargy and traffic back-up at OMB, I have always thought Harold throttled back the paperwork approval in response to the cries (nee screams) of federal contractors and their vendors that they could not get their calendar 2001 AAPs produced under the new AAP formats by January 2001 (at a time most contractors ran their AAPs on a calendar year basis). So, the paperwork delay allowed federal contractors to produce their calendar year 2001 AAPs under the old AAP rules, in effect, before Shirley’s and Harold’s ground breaking October/November/January new regs. This gave most contractors and all vendors, as a practical and legal matter, the entire calendar year 2001 to get ready to produce AAPs for 2002 and beyond using the new regs.
Now, here’s the wild card as to OFCCP’s currently proposed 503/VEVRAA regs (the ones OMB has just approved to publish and which OFCCP has “announced”). OMB could approve the paperwork portions of those regs AT ANY TIME or NEVER after OFCCP publishes its proposed regs in Final form in the Federal Register (if it does). Thus, OMB could approve the paperwork portions of the regs BEFORE the regs become “legally effective” (180 days after OFCCP’s publication of them in the Federal Register). Or, OMB could approve the paperwork versions of OFCCP’s regs AFTER the regs become “legally effective”. When OMB approves the paperwork portions of OFCCP’s regulations, post-publication, is a political and administrative/staffing question. If Pat Shiu tires of waiting for OMB, and wants to spend a “chit” with Vice President Biden to pressure OMB to prioritize its work in favor of OFCCP, OMB could put Pat’s regs closer to the top of the pile and get done earlier rather than later. On the other hand, if contractors really want to delay or stop these regs, their Congressional representatives could weigh-in and OMB could make other “priority-of-work” decisions. (NOTE: OMB serves The President and does his bidding, within the limits of the law the Congress has delegated to OMB.)
So, let’s model some dates. Assume:
Hurdle 4: Contractors could sue in the federal courts to enjoin and stop OFCCP’s “Final” and “legally effective” and “paperwork effective” VEVRAA and/or 503 regulations. But, two surprises here:
JUMP NOW OR JUMP LATER?
My own feeling about when contractors should begin to prepare to comply is that:
(1) contractors should make NO changes to their AAPs now, but
(2) should begin earnest preparation for eventual compliance with OFCCP’s proposed Rules AFTER (not before: don’t cross bridges before you must) OFCCP publishes its proposed regs in Final form in the Federal Register (as OFCCP currently predicts it will do). Remember, too, watch for OMB’s “paperwork” seal of approval AFTER OFCCP publishes the regs in Final form in the Federal Register to know when you MUST comply and MAY comply.
SO, WHAT’S A “UTILIZATION GOAL” AND WHAT’S A “HIRING BENCHMARK GOAL”…AND, HOW ARE THEY DIFFERENT?
The name doesn’t matter, right? What matters is what it is, in fact…or better said: what matters is how OFCCP Compliance Officers in the field understand what it is and is not. Consider Juliet’s eloquent argument in Shakespeare’s Romeo and Juliet in favor of ignoring labels and looking only at the essence of what things are: “A rose by any other name would smell as sweet”.
And, tell me again how a (Section 503) “Utilization Goal” or a (VEVRAA) “Benchmark Hiring Goal” is different from an Executive Order 11246 “Placement Goal”? As the OFCCP webinar on its VEVRAA regs got towards the end, OFCCP’s speaker tried to explain it. It was then that my e-mail and text message boxes exploded with messages from contractors across the country bewildered at the statements made and raising legitimate questions about what OFCCP could possibly be talking about.
So, let me dispel the mystery before I take you into the convoluted quagmire which erupted and legitimately provoked the questioning. All three OFCCP “goals” programs, by whatever name, are what I would simply call “Recruitment goals”. They are estimates of the percentage (not number) of minorities/women/disabled/Protected Veterans available to be recruited to the contractor’s front door – where non-discrimination and other “Affirmative Action” compliance obligations then attach. (That reference to estimate is an important first concept, by the way, since this is NOT the way lawyers would ever calculate availability in litigation…with more expansive budgets than the relatively few hours OMB/OFCCP impose on contractors to produce AAPs.)
OFCCP “Goals” are not “Hiring Goals” or “Selection Goals” as many people in and out of OFCCP mistakenly believe. Rather, OFCCP goals under all three programs are, in fact, simply an estimate of the percentage availability of these four species of legally protected workers for contractors to find in the marketplace. No OFCCP “goal” is intended for hiring managers. Rather, OFCCP intends (Executive Order) “Placement Goals” for what corporate official? OFCCP “Placement Goals” are intended as a tool ONLY for recruiters and corporate personnel who recruit workers to federal contractor establishments regardless of title (i.e. Recruiter; HR Manager; HR Generalist; HR Assistant; Rose Pruner; etc). The goal tells the recruiter what percentage of minorities and women are out there so the recruiter can make sure s/he has found them all.
(By the way, the great tragedy in America is that SO many corporate recruiters and third party recruiters tell me they NEVER know what the contractor has calculated to be available for the various jobs they are sourcing for the contractor. And yet, all the work that went into that EO 11246 AAP is primarily for the benefit of the recruiters. The contractor’s availability calculation tells the recruiter the one thing no other HR function tells them: what percentage of minorities/women/disabled/Protected Veterans are available to be recruited to the contractor’s front door.
Example: What if the company’s Applicant Flow is 40% women (which sounds good in the abstract) but what if the AAP calculates the available percentage at 60%? In such a case, either the calculation is wrong or the recruiters are missing market share. If contractors do not tell the recruiters what percentage is reported to be available, the recruiters never know if they have fully and completely scraped the marketplace and found all available potential Applicants.)
INTO THE THICKET OF OFCCP’s MISUNDERSTANDING OF EO ORDER GOALS
Unfortunately, OFCCP speakers misunderstood EO goals and thus compared the new goals they were proposing to erroneous comparators. Jay-Anne B. Casuga, a seasoned OFCCP beat reporter at BNA, reported OFCCP’s VEVRAA webinar in some detail and captured OFCCP statements about VEVRAA’s “hiring benchmark goals” very fully and in concert with my copious notes of that webinar:
FOX NOTE: (a) OFCCP Director Ellen Shong informally (orally) ordered OFCCP Compliance Officers to no longer permit contractors to report numerical goals despite OFCCP’s former regulations (which had allowed contractors to set either “percentage or numeric goals” (emphasis added): see former 41 CFR Section 60-2.12(h)), and (b) following Director Shong’s lead, the Clinton Administration formally withdrew OFCCP’s regulatory “permission” for numeric goals when it altered and changed OFCCP’s AAP construction Rules in 2000. See 41 CFR Section 60-2.16 which is OFCCP’s Rule since 2000:
Accordingly, numeric goals have not been in use at OFCCP for over 30 years.
FOX: And, its worse: if you believe that last statement, Executive Order Goals would be unlawful “Quotas” which private sector contractors could only justify and render lawful by a separate finding of a “manifest imbalance” or a finding of unlawful discrimination permitting remedial relief based on race/gender and public sector contractors could only justify and render lawful by a finding of a “strong basis in evidence” to believe unlawful discrimination had occurred in the timely filing period…neither of which findings an OFCCP Executive Order AAP for Minorities and Women accomplishes. Here is a problem that last OFCCP statement does not comprehend:
FOX: So, OFCCP EO 11246 AAPs do not provide the predicate to undertake race-preferential selections. OFCCP’s EO 11246 race-conscious “goals” are lawful because they do NOT involve selection preferences but merely identify what is available for recruiters to find in the marketplace: i.e. “Recruitment Goals”.
FOX: Aha! Exactly right! Better said. Exactly like Executive Order recruitment “Goal” for minorities and/or women. Ah, a rose by any other name is still but a rose by smell.
OFCCP’s Preamble to its VEVRAA proposed regulations, as recently revised and as OMB approved them in August, makes the same point:
Yes, yes, yes, exactly so. By Jove, we have it now! So, OFCCP has now clearly revised its VEVRAA goal (from the quota it was in OFCCP’s original proposal) to be a Recruitment Goal (by whatever smelly name).
OFCCP’S RECENTLY PROPOSED SECTION 503 “UTILIZATION GOALS” ALSO SMELL LIKE RECRUITMENT GOALS, AS REVISED
OFCCP could, of course, have proposed hiring preferences for the Disabled. (There is no statutory protection of those not disabled in the way that the Executive Order and Title VII, among other statutes, protect men and whites.) OFCCP did not do so, however, in the current revision of its proposed regulations as OMB approved them in late August 2013.
Here’s what OFCCP’s proposed Section 503 Rule, as revised in August 2013, now states:
The utilization goal is not a rigid and inflexible quota which must be met, nor is it to be considered either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.
(a) Goal. OFCCP has established a utilization goal of 7% for employment of qualified individuals with disabilities for each job group in the contractor’s workforce, or for the contractor’s entire workforce as provided in paragraph (d)(2)(i) of this section.
(b) Purpose. The purpose of the utilization goal is to establish a benchmark against which the contractor must measure the representation of individuals within each job group in its workforce, or within the contractor’s entire workforce as provided in paragraph (d)(2)(i) of this section. The utilization goal serves as an equal employment opportunity objective that should be attainable by complying with all aspects of the affirmative action requirements of this part.”
Here’s what OFCCP’s proposed Section 503 Preamble now states:
FOX: That last sentence, above, is of some concern because it is so ambiguous. But, OFCCP could apply it to mean that the goal helps inform recruiters what the available percentages of the Disabled are out there in the marketplace waiting to be found and lured to apply and that analyses of rejections of the Disabled may reveal unlawful reasons for the exclusion or other administrative barriers to selection. However, the concern arises that poorly trained OFCCP Compliance Officers will understand that language to mean that contractors must select Disabled Applicants to meet the 7% Utilization Disability Goal. (I doubt that, though, since the Preamble so clearly states that contractors will suffer no punishment for failing to meet a Utilization Goal other than the duty to analyze why they failed to meet the goal.) But, this is unnecessarily sloppy and diffuse language and which does not help contractors to understand they need to face the recruitment goal to recruiters.
Here, the Preamble casts the Utilization Goal as a trigger to also force contractors to undertake diagnostic analyses anytime it failed to select at the 7% Section 503 “utilization” goal level to determine “why” so:
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While OFCCP is struggling to “just spit it out” cleanly and clearly, it has nonetheless described a “Recruitment Goal”, by whatever name or label.
So, it has been a long read. So, now go out and smell the roses, and thank goodness we speak a simple language like English we can all understand…and not Greek.
|THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.|