Division of Civil Rights and Labor-Management

The Civil Rights and Labor-Management Division (CRLM) in the Office of the Solicitor provides legal services primarily to three client agencies - the Office of Federal Contract Compliance Programs (OFCCP), the Office of Labor-Management Standards (OLMS), and the Civil Rights Center (CRC) – but also services several other programs on civil rights-related issues.

Legal Services for OFCCP

CRLM provides legal services to OFCCP, which enforces three equal employment opportunity laws that apply to contractors and subcontractors doing business with the federal government. Approximately 25% of the American workforce is employed by companies that do business with the federal government. This includes employees at banks, meat packing plants, manufacturing plants, accounting firms, as well as construction companies working on federal and/or federally assisted construction projects. The laws include:

• Executive Order 11246: Prohibits discrimination and requires affirmative action to ensure equal employment opportunity without regard to race, color, sex, sexual orientation, gender identity, religion, and national origin. In addition, promotes pay transparency in that contractors and subcontractors cannot discriminate against applicants or employees because they have asked about, discussed or disclosed their compensation or that of others, subject to certain limitations.
• Section 503 of the Rehabilitation Act of 1973: For qualified individuals with disabilities, prohibits discrimination and requires affirmative action to ensure equal employment opportunity in all employment practices.
• Vietnam Era Veterans' Readjustment Assistance Act of 1974: For qualified covered veterans, prohibits discrimination and requires affirmative action to ensure equal employment opportunity in all employment practices.

The Division conducts administrative hearings and appeals in enforcement cases arising under OFCCP's laws, provides legal services to the Regional Solicitors' Offices in their OFCCP enforcement work, and assists the Department of Justice in its representation of OFCCP in Federal court. The Division also provides a wide range of legal services to OFCCP including:

• working closely with the agency in developing, drafting and reviewing regulations and sub-regulatory guidance,
• providing training and technical assistance for internal and external stakeholders; and
• providing legal advice about the development and implementation of agency enforcement initiatives.

Legal Services for the Office of Labor-Management Standards

The Division provides a broad range of legal services to OLMS, which enforces laws that establish federal standards for labor union democracy, and that promote labor union and labor-management transparency through reporting and disclosure requirements for labor unions and their officials, employers, labor relations consultants, and surety companies. These laws include:

• The Labor-Management Reporting and Disclosure Act of 1959, which governs labor organizations that represent private sector employees;
• The Civil Service Reform Act, which governs federal sector unions; and
• Analogous laws governing the Postal Service and the Foreign Service.

CRLM also provides advice regarding Section 53333(b) of the Federal Transit Act (commonly referred to as Section 13c) as to certification of mass transit grants, and works with the U.S. Department of Justice in litigation arising from OLMS certification decisions.

The division conducts administrative enforcement in internal union officer election, trusteeship, and reporting cases arising under the Civil Service Reform Act, and works with the U.S. Department of Justice in its representation of OLMS in federal court in reporting, trusteeship, and officer election cases arising under the LMRDA. CRLM also works with OLMS on rulemakings and provides advice to OLMS on matters arising under its statutes.

Legal Services for the Civil Rights Center

CRLM also provides legal services to CRC with respect to its administration of DOL's internal and external enforcement programs. On the internal side, CRC administers the Equal Employment Opportunity complaint program applicable to employees and applicants for DOL employment. On the external side, CRC enforces the equal opportunity and nondiscrimination requirements that apply to recipients of federal financial assistance, including those under Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act and Section 188 of the Workforce Innovation and Opportunity Act. The external enforcement program involves compliance reviews of recipients, and investigation of complaints alleging that recipients have violated applicable equal opportunity and nondiscrimination laws. In addition, the Division provides advice and assistance to CRC in drafting and reviewing regulations and sub-regulatory guidance, as well as training and technical assistance for internal and external stakeholders.

Legal Services for Other Agencies

Additionally, the Division provides legal services to the Office of Apprenticeship regarding matters related to Equal Employment Opportunity in Apprenticeship Programs; the Office of Disability Employment Policy; the Center for Faith and Opportunity Initiatives; the Women's Bureau; and the Veterans' Employment and Training Service.

Accomplishments

OFCCP v. United Space Alliance (USA), LLC, 824 F. Supp. 2d. 68 (2011): OFCCP filed an administrative enforcement action under its expedited hearing procedures against USA under Executive Order 11246. The complaint alleged that USA violated OFCCP's regulations by failing to provide requested compensation data necessary for OFCCP to conduct a more detailed analysis during a compliance review. USA refused to provide the data, claiming that it was being unfairly targeted by OFCCP in violation of the Fourth Amendment. The ALJ issued a Recommended Decision and Order holding that USA consented to its initial selection and to OFCCP's desk audit request to review USA's affirmative action program and underlying data. The ALJ held that OFCCP has broad discretion when conducting preliminary analyses on desk audit data to seek additional data to determine compliance with OFCCP's non-discrimination laws. The ARB adopted the ALJ's decision. USA sought review of this final administrative order under the Administrative Procedures Act in D.C. District Court. The Court issued a decision in 2011, holding that OFCCP's request to review the documents off-site was akin to a subpoena, and, therefore, that the lesser probable cause standard set forth in Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984), rather than the more stringent Marshall v. Barlow's standard applicable to onsite searches, applies. The court held that OFCCP satisfied the Lone Steer standard and ordered the production of the compensation data. USA provided the data.

Successfully Defended Challenge to Disability Discrimination Rule: CRLM assisted the U.S. Department of Justice in successfully defending a challenge to an OFCCP's disability discrimination and affirmative action rule. The U.S. District Court for the District of Columbia upheld OFCCP's regulations and the D.C. Circuit affirmed. The case was Associated Builders and Contractors (ABC) v. Shiu, 773 F.3d 257 (2014). ABC filed a complaint for declaratory and injunctive relief seeking judicial review of the OFCCP Section 503 final rule issued in September 2013, on the grounds that: (1) the rule contains provisions not authorized by the statute; (2) OFCCP did not provide a rational explanation for its alleged reversal of policy as to the construction industry; and (3) OFCCP did not comply with the Regulatory Flexibility Act and Small Business Act. The rule, significantly, establishes workforce goals for individuals with disabilities, requires contractors to collect data on the number of applicants and hires with disabilities, and strengthens other affirmative action requirements.

Updated Sex Discrimination Rule: In June 2016, OFCCP's issued a Final Rule revising outdated 1970 sex discrimination guidelines to align with current law and address the realities of today's workplaces. The Final Rule addresses issues such as compensation discrimination, sexual harassment, hostile work environments, failure to provide workplace accommodations for pregnant workers, and gender identity and family caregiving discrimination. This Final Rule became effective on August 15, 2016. CRLM was heavily involved in the drafting and review of the proposed and final rules.

Pay Transparency: OFCCP's Final Rule promoting pay transparency, which implemented President Obama's Executive Order 13665, prevents federal contractors and subcontractors from firing or otherwise discriminating against employees or applicants for discussing, disclosing, or inquiring about their own pay or that of their co-workers. This Final Rule became effective on January 11, 2016. CRLM was heavily involved in the drafting and review of the proposed and final rules.

Sexual Orientation & Gender Identity Discrimination: OFCCP's regulations prohibit covered federal contractors and subcontractors from discriminating against employees and job applicants based on their sexual orientation or gender identity. This Final Rule implements Executive Order 13672 by adding sexual orientation and gender identity to the list of protected categories under Executive Order 11246, and became effective on April 8, 2015. CRLM was heavily involved in the drafting and review of the final rules.

Federal Contractor Union Notice Requirement: In National Association of Manufacturers (NAM) v. Perez, 103 F.Supp.3d 7 (D.D.C. 2015), NAM challenged the OLMS rule requiring federal contractors to post notices entitled, "Employee Rights under the National Labor Relations Act," informing employees and applicants of their rights under the National Labor Relations Act (NLRA). NAM claimed that OLMS's promulgation of the rule and its joint enforcement thereof with OFCCP was in excess of the agencies' authority and violated the First Amendment and Section 8(c) of the NLRA, and was preempted by the NLRA. The court decided in favor of the Department of Labor and granted the Department's motion for summary judgment. The court held that the Posting Rule does not violate the First Amendment; the President had the authority under the Procurement Act to require the posting of a notice as a condition of federal contracts; the Department of Labor's Notice does not violate the APA; and the Posting Rule is not preempted by the NLRA.

Public Employee Union Rights: Friedrichs v. California Teachers Association, 136 S. Ct. 1083, reh'g denied 136 S. Ct. 2545 (June 28, 2016). Petitioners in this case challenged the Supreme Court's 1977 Abood v. Detroit Board of Education decision, which had allowed public employers to require their nonunion-member employees to pay a union selected as their exclusive representative an "agency fee" to cover their proportionate share of the union's costs of collective bargaining, contract administration, and grievance adjustment. As part of the SOL amicus program, CRLM worked together with the Solicitor General's Office to file the US Government's brief in this case, arguing that agency fees be preserved as part of a time-tested framework for collective bargaining that rests on a democratically elected, exclusive representative that is duty-bound to represent fairly all employees in a bargaining unit. The brief also emphasized the states' authority to put reasonable conditions on public employment. The Supreme Court, by an equally divided Court, affirmed the decision below upholding Abood on March 29, 2016, and subsequently denied rehearing on June 28, 2016.

Persuader Activities: The LMRDA requires employers and the consultants they hire to persuade employees in union representation campaigns to file reports with the Department. OLMS issued a rule which realigns the Department's regulations with the text of the LMRDA and requires that employers and consultants file reports not only for direct persuader activities - consultants talking to workers - but also for indirect persuader activities undertaken with the intent to persuade. This rule was effective April 25, 2015, but is currently subject to litigation that prevents it from being enforced.

What We Do

The Division supports the civil rights and labor-management efforts of eight client agencies within the Department of Labor. Our enforcement-related work includes participating in administrative and district court trial litigation and appeals and advising clients on a range of enforcement initiatives. Our attorneys also assist clients in drafting and reviewing regulations and sub-regulatory guidance. Finally, the Division has a robust amicus program.

CRLM Client Agencies

• Office of Federal Contract Compliance Programs (OFCCP)
• Office of Labor-Management Standards (OLMS)
• Civil Rights Center (CRC)
• Centers for Faith and Opportunity Initiatives (CFOI)
• Office of Apprenticeship(OA)
• Office of Disability Employment Policy (ODEP)
• Veterans' Employment and Training Service (VETS)
• Women's Bureau (WB)

Law Student Internship Program

CRLM provides several internship opportunities throughout the year for current law students. The law student intern assists attorneys in providing legal services to Division's client agencies. Duties include significant research and writing in connection with advice, litigation and/or rulemaking projects, such as drafting memoranda, analyses, and briefs, and may include attending meetings with the client agencies and other SOL divisions as appropriate. Qualifications include excellent research and writing skills; a demonstrated interest in civil rights, labor and employment issues; and a strong academic record.

When is this internship?: Year-round opportunities, subject to funding availability; Pathways positions available for summer internships. Students who can commit to a full-time schedule (35-40 hours/week) are preferred. All interested candidates must submit: (1) a cover letter; (2) resume; (3) law school transcript; and (4) recent writing sample; and (5) a list of three references by email to:

Jo Ann Baptiste
Management and Program Analyst
CRLMInternshipApplications@dol.gov
202-693-5737

Applications will be reviewed on a rolling basis. Applicants must indicate in their email the period (Spring, Summer, or Fall) for which they wish to be considered.

For additional information, visit the SOL Law Student Internship and Externship Opportunities webpage.

Contact Information

200 Constitution Ave NW
Room N-2474
Washington, DC 20210

202-693-5740
202-693-5319 (fax)

Associate Solicitor
Beverly Dankowitz

Deputy Associate Solicitor
Keir Bickerstaffe

Counsel for Labor-Management and Civil Rights Policy
Eleanore Simms

Counsel for Interpretation and Advice
Monica Bhattacharya

Counsel for Special Programs
Nicole Dafoe

Counsel for Labor-Management and Civil Rights Enforcement
Jeffrey Lupardo

Management and Program Analyst
Jo Ann Baptiste

Secretary
Vacant

Published Legal Briefs