President Trump’s administration has been repealing a great many Obama-era regulations, as well as ending a pervasive anti-business agenda within Federal departments and agencies. Coupled with the president’s historic tax cuts and a sense that the Obama ‘war on private enterprise’ is over, the economy has soared to new heights, with record high employment across the country and a booming stock market. America is truly back.
However the job isn’t finished. At the Department of Labor, for example, many “midnight” regulations and lawsuits, instituted after the 2016 election and before President Donald Trump was sworn in, are still harming businesses unnecessarily.
These last-minute lawsuits against government contractors should have been withdrawn by President Trump after he was sworn in. The result is continued harassment of private companies with ‘lawfare’ tactics that followed the ideology of the liberal Obama administration, and not of President Trump. The suits lack authority under federal law to continue being pursued, and are nothing more than left-wing legal activism.
The Trump Administration’s DoL should have been streamlining labor laws to promote economic growth, yet unfortunately, the former Labor Secretary, Alex Acosta, harmed that goal by allowing Obama’s politically based lawsuits to continue against companies for discriminatory wage practices without any actual evidence of discrimination, but just using selective statistical analysis.
Allowing rogue liberal lawsuits that harass business and extort businesses for perceived, but unprovable discrimination runs contrary to the Trump administration’s goals to expand economic growth and free markets and truly protect employee rights.
At the core of this Obama anti-business steamroller is the Office of Federal Contract Compliance Programs (OFCCP). In theory, the office has the responsibility to promote affirmative action with federal contractors, yet in practice they relied on selected statistical analysis of hiring and promotion data to harass and sue companies for alleged discrimination, rather than using any actual evidence of discrimination. Bureaucrats could use the cherry-picked statistics to prove anything they wanted without any real evidence.
Since Secretary Acosta resigned in September, conservatives are hoping that Secretary Eugene Scalia will withdraw a pending lawsuit against Oracle and abandon the practices that led to actions against tech companies Google and Palantir.
The bottom line is that there is no statutory authority for litigation alleging discrimination by federal government contractor companies using statistical analysis instead of actual evidence. The OFCCP is in need of reform and should back away from this unconstitutional power grab that lead to actions against companies that Congress had not authorized.
Secretary Scalia should take this opportunity to audit his own OFCCP, and return all enforcement actions to relying upon actual, provable evidence.
In a 2017 study, “Office of Federal Contract Compliance Programs: Right Mission, Wrong Tactics Recommendations for Reform,” the U.S. Chamber of Commerce found that, “the Chamber’s overarching recommendation that OFCCP deliberately (1) return to its core mission of fostering true affirmative action by federal contractors and subcontractors, and (2) abandon its transformation to an opaque, plaintiff-style enforcement agency, purposefully hostile to the contracting community and singularly focused on issuing findings of discrimination, often where none exist.”
The Chamber also issued a number of recommendations to reform OFCCP, including:
- Return to a more neutral enforcement agency approach that encourages OFCCP investigators and contractors to work together to understand and resolve issues during all phases of audits.
- Encourage comprehensive and holistic evaluations of contractors’ affirmative action and nondiscrimination efforts as opposed to overemphasizing statistical analyses.
- Revise subregulatory guidance documents to make them consistent with well-established federal antidiscrimination law, allow for more transparency during investigations.
- Revise OFCCP’s current anti-retaliation regulations to make them consistent with federal antidiscrimination law and U.S. Supreme Court jurisprudence.
- Implement guidance/regulations to set clear parameters on OFCCP investigations with consistent application across regional and district offices nationwide.
- Examine ways to minimize the compliance burden on small businesses without sacrificing OFCCP’s overall goals.
The Chamber correctly identified the problem and the solutions, and this could be the proper path for Secretary Scalia to take in reforming the OFCCP’s actions at Labor. Discrimination is always wrong, but using invented statistics to create fake narratives of discrimination only harms employees with real discrimination complaints and companies then become burdened fighting such erroneous lawsuits.
President Trump promised the American people that he would make America great again, and his promise must not be hindered by ‘deep-state’ Obama holdover bureaucrats continuing to wage Obama-era anti-business ‘lawfare.’
Art Harman is the President of the Coalition to Save Manned Space Exploration. He was the Legislative Director and foreign policy advisor for Rep. Stockman (R-Texas) in the 113th Congress, and is a veteran policy analyst and grass-roots political expert. His expertise includes foreign relations, border security/amnesty, national security, transportation, foreign broadcasting and NASA/space policy.
He has travelled the world and been behind the Iron Curtain during the Soviet era, witnessed the fall of the Berlin Wall, was arrested by the KGB, and stood in the footprints of those who sacrificed everything for freedom at Tiananmen Square.
Mr. Harman developed the strategy to kill the 2013 Senate “gang of eight” amnesty bill as violating the Constitution’s Origination Clause, and provided policy advice to the Trump campaign, transition and the White House. He wrote what became the ‘bible’ for post-Brexit trade relations which was introduced in 2016 by Sen. Mike Lee as S. 3123, the United Kingdom Trade Continuity Act, and he advised the Trump administration to return Americans to the Moon by 2024–now official policy. Harman is a frequent guest expert on radio shows on key policy issues, and is an award-winning fine-arts photographer.