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Trump administration should protect companies from bad lawsuits

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Op-ed views and opinions expressed are solely those of the author.

The country is now engaged in a great discussion to determine whether to continue the Trump administration or to return to the Obama administration (in the person of former Vice President Joe Biden). But in an important way the Obama administration never really went away. More than three years into the Trump administration, the Department of Labor is allowing the federal government to prosecute some pointless Obama era lawsuits.

Our nation is also embroiled in a debate over how to address discrimination in law enforcement. The government should never enable discrimination and should follow existing laws that help promote fairness in hiring and promotions. When government alleges discrimination where it does not exist, the government creates more problems and more divisions in society.

The story begins in the final moments of the Obama administration. In January of 2017, the Office of Federal Contract Compliance Programs (OFCCP), a small part of the Department of Labor, filed discrimination suits against leading technology companies including Google, Palantir and Oracle.

 OFCCP is supposed to promote affirmative action among companies that are federal contractors. That’s an admirable goal, and one we should all support. However, instead of identifying actual violations by particular companies, OFCCP relied instead on statistical analysis of hiring and promotion information it was able to get its hands on. It used that information first to harass and later to sue companies for alleged discrimination. Falsely accusing a company of discrimination leaves a terrible reputational scar on that company.

A major problem with the suits is that the government didn’t have the information it needed (firstly) to attempt to bring them. OFCCP didn’t compare the duties, skills and responsibilities of similarly situated employees at Oracle, for example, even though such steps are required under law before a lawsuit can be filed. 

Statistical analysis is no substitute for actual evidence of discrimination, which the government doesn’t have. In fact, the feds ignored performance reviews and changes in job titles so they could move forward with this case. The Oracle case alone shows that the OFCCP is not abiding by existing law and has made baseless claims against tech companies.

Unfortunately, this is par for the course. And this is what leads to institutional dysfunction and causes companies, as they have in the past, to seek more business-friendly countries.  It’s this type of non-sensical power and control that frustrates business people who are responsible for America’s engines of productivity.  

At a time when our country needs to be growth centric there needs to be a rising resistance to a process that hinders productivity and growth.  Our elected officials and government need to realize that they exist to serve and not be served.  This is what is costing us so much in money, time, resources, including human resources.  

Who wants to work in this kind of environment much less invest all you have to create a business and jobs only to be sabotaged by a self-serving bureaucracy. We know this has been a growing problem for decades, but somehow this incompetent paradigm has become status quo and acceptable.

A big and bloated government offers cover, adds to the problem and avoid accountability.  And we’ve experienced by pattern that inspector generals who come from these specific bureaucracy instinctively protect their own.  So they go through the exercise as a pretense for accountability and meanwhile everyone keeps getting a pay raise that fortifies the bad behavior continuum.

An in-depth report from the U.S. Chamber of Commerce investigated the OFCCP’s methods. Companies reported that the government demanded that the employer provide enormous amounts of data in a short time frame, rather than working with the employer to narrow the request to focus on data relating to a specific issue. They also told a contractor that it was welcome to bring a matter before an administrative law judge, “but the judge works for us.” 

I think you would agree that this is basically unjust and unfair.  But this is how power and control operates in the beltway.  There are many reasons they are able to get away with this, as we have noted some.  It’s insidious, too pervasive and acceptable.  

They also frightened employees by telling them “we can ask for anything we want.” Another thing the Chamber found was that the OFCCP could unilaterally set dates and times for on-site investigations without an invitation to discuss legal issues or trying to work with the employer’s schedule. Government abuse of power is another national debate we are having today and this effort by the government to bully companies into compliance is an abuse of federal government power.

They seemingly have lost site of their raison d’exister…which is to promote affirmative action. Like too much of the disease that runs rampant in DC, their objective has become clearly to harass the companies and win concessions, rather than to promote fair hiring practices. It’s a version of the lawyer trick “sue and settle,” when an attorney brings a pointless lawsuit, hoping the company sued will prefer to simply settle the suit rather than deal with the legal hassles. Except in this case, the companies involved decided to fight back, and the government should have backed off. 

This can be fixed in two ways. 

The Chamber recommends 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.” And (3) get some leadership who is committed to this vision with the power to reassign bureaucrats who resist and hinder the mission objective.  That would be a fair start.  

Barring that, the administration could take control and end this foolishness. 

Kate O’Scannlain, the current Solicitor of Labor, could and should already have abandoned these actions, which were filed, in part, to cause trouble for the incoming administration. Instead she has allowed them to crawl forward, putting future jobs and economic growth at risk. 

Either way, this frivolous legal action needs to stop now, before it’s too late for our economy, and our important high-tech leaders. Reform of this agency will get it back into line with the law and original mission of the agency.

Bill Martinez

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