Division of Civil Rights and Labor-Management (CRLM)
MISSION AND FUNCTION: The Civil Rights and Labor-Management Division provides legal services to the Assistant Secretary for Employment Standards in connection with two major programs in ESA: the Office of Federal Contract Compliance Programs (OFCCP) and the Office of Labor-Management Standards (OLMS).
The Division provides legal services to OFCCP in the administration and enforcement of: 1) Executive Order 11246, as amended; 2) Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 793 et seq.); and 3) the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended (38 U.S.C. § 4212 et seq.). OFCCP is responsible for ensuring that employers doing business with the Federal government comply with the laws and regulations requiring nondiscrimination and affirmative action.
The Division provides a broad range of legal services, including advice, litigation, and rulemaking, to OLMS concerning the administration and enforcement of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), as amended (29 U.S.C. § 401 et seq.). The LMRDA was enacted primarily to ensure basic standards of democracy and fiscal responsibility in labor organizations representing private sector members. The Division also provides legal services to OLMS concerning the provisions of other statutes, applicable to labor organizations representing public sector employers, with provisions or goals similar to the LMRDA.
The Division also provides legal services to OLMS’ Division of Statutory Programs concerning 49 U.S.C. § 5333(b) (formerly section 13(c) of the Urban Mass Transportation Act). This provision of the Federal Transit Act requires the Secretary of Labor to certify that the rights of affected mass transit employees are protected when Federal funds are used to acquire, improve, or operate a transit system.
In addition, the Division provides legal services to the Office of Apprenticeship Training, Employer and Labor Services (ATELS) regarding matters arising under 29 CFR Part 30, Equal Employment Opportunity in Apprenticeship and Training. These regulations set forth policies and procedures to promote equality of opportunity in apprenticeship programs, applying to the recruitment and selection of apprentices, and to all conditions of employment and training during apprenticeship. The regulations promote equality of opportunity in apprenticeship by prohibiting discrimination based on race, color, religion, national origin, or sex in apprenticeship programs, and by requiring affirmative action to provide equal opportunity in such apprenticeship programs.
The Division also provides services to the Civil Rights Center (CRC). CRC enforces various Federal statutes and regulations that (1) prohibit discrimination in programs and activities that are conducted with DOL financial assistance; (2) prohibit discrimination on the basis of disability by certain public entities and in DOL conducted activities; and (3) prohibit discrimination within DOL itself.
Other client-agencies within the Department for which the Division is responsible include the Center for Faith-Based and Neighborhood Partnerships (CFBNP), the Office of Disability Employment Policy (ODEP), and the Veterans' Employment and Training Service (VETS).
The Center for Faith-Based and Neighborhood Partnerships (CFBNP) seeks to empower faith-based and community organizations (FBCO) as these organizations help their neighbors enter, succeed and thrive in the workforce. To accomplish this mission, CFBCI works to remove administrative and regulatory barriers and develop innovative programs to foster partnerships between DOL-funded programs and FBCOs.
The Office of Disability Employment Policy (ODEP), a sub-cabinet level policy agency within the Department, was authorized by Congress in the Department’s FY 2001 appropriation. ODEP provides national leadership by developing and influencing disability-related employment policy and practice affecting the employment of people with disabilities.
The Veterans' Employment and Training Service (VETS), in conjunction with the U.S. Department of Veterans' Affairs, provides veterans with the resources and services to succeed in the 21st century workforce by maximizing their employment opportunities, protecting their employment rights and meeting labor-market demands with qualified veterans. Under VEVRAA, VETS collects and compiles data on the Federal Contactor Program Veterans' Employment Reports (VETS-100 Report) from Federal contractors and subcontractors who receive a Federal contract.
The Division also maintains liaison with the Equal Employment Opportunity Commission (EEOC) and participates in matters of common concern. In addition, the Division provides advice to the Department, and assists in preparing regulations, legislative proposals, and testimony in civil rights matters.
STATUTES, EXECUTIVE ORDERS, AND REGULATIONS: In providing legal services to OFCCP, the Division helps administer and enforce Executive Order 11246, as amended; 2) Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 793 et seq.); and 3) the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended (38 U.S.C. § 4212 et seq.), the civil rights provisions at section 188 of the Workforce Investment Act (WIA), Title VI of the Civil Rights Act, Title IX of the Education Amendments Act, the Age Discrimination Act, the Americans with Disabilities Act of 1990, section 504 of the Rehabilitation Act, and related laws that require equal opportunity on the bases of such characteristics as race, sex, religion, national origin, age, disability, and status as a covered veteran.
In providing legal services to OLMS, the Division helps administer and enforce the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), as amended (29 U.S.C. § 401 et seq.), section 1209 of the Postal Reorganization Act of 1970 (39 U.S.C. § 1209), section 701 of the Civil Service Reform Act of 1978 (CSRA) (5 U.S.C. § 7120), section 1017 of the Foreign Service Act of 1980 (22 U.S.C. § 4117), and section 220(a)(1) of the Congressional Accountability Act of 1995 (2 U.S.C. § 1351(a)(1)).
Under Executive Order 13201, and 29 CFR Part 470 which implement E.O. 13201, government contracts and sub-contracts must include an employee notice clause that requires such non-exempt Federal contractors and subcontractors to post notices informing their employees of union member rights. Non-exempt government contractors are required to inform their employees that they have certain rights related to union membership and use of union dues and fees. This Executive Order and these regulations are administered by both OLMS and OFCCP.
Legal services to the Office of Apprenticeship Training, Employer and Labor Services (ATELS) regard matters arising under 29 CFR Part 30, Equal Employment Opportunity in Apprenticeship and Training. These regulations set forth policies and procedures to promote equality of opportunity in apprenticeship programs, applying to the recruitment and selection of apprentices, and to all conditions of employment and training during apprenticeship. The regulations promote equality of opportunity in apprenticeship by prohibiting discrimination based on race, color, religion, national origin, or sex in apprenticeship programs, and by requiring affirmative action to provide equal opportunity in such apprenticeship programs.
The Division also provides services to the Civil Rights Center (CRC). CRC enforces various Federal statutes and regulations that (1) prohibit discrimination in programs and activities that are conducted with DOL financial assistance; (2) prohibit discrimination on the basis of disability by certain public entities and in DOL conducted activities; and (3) prohibit discrimination within DOL itself. The Division provides legal services to CRC on matters arising under the nondiscrimination provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000e); Title IX of the Education Amendments Act of 1972 (20 U.S.C. § 1681 et seq.); section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); the Age Discrimination Act of 1975 as amended (42 U.S.C. § 6101 et seq.); the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.); Executive Order 13166 (";Improving Access to Services for People with Limited-English Proficiency";); and section 188 of the Workforce Investment Act (WIA) (29 U.S.C. § 2938(a)(2)), as well as internal EEO cases and related matters.
The Division also provides legal services to the Office of Disability Employment Policy (ODEP). Some of the statues and regulations that the Division assists ODEP with include: the Americans with Disabilities Act, sections 503 and 504 of the Rehabilitation Act, and section 188 of WIA.
The Division provides additional legal services to Center for Faith-Based and Neighborhood Partnerships (CFBNP) under two Executive Orders enacted during President George W. Bush's administration. The Division helps implement these two Executive Orders within Departmental programs. Some of the statutes and regulations that the Division assists CFBCI with include: Executive Order 13198 (enacted on January 29, 2001, to establish CFBCI within the Department), Executive Order 13279 (enacted on December 12, 2002, requiring equal protection for faith-based and community organizations to enable them to compete equally for Departmental grants), 20 CFR Parts 667 and 670, and 29 CFR Parts 2 and 37.
In providing legal services to Veterans' Employment and Training Service (VETS), the Division helps administer and enforce Federal contractors' compliance with their Federal Contactor Program Veterans' Employment Reports (VETS-100 Reports) under VEVRAA. 38 U.S.C. § 4212(d).
DESCRIPTION OF DUTIES: The Division is headed by an Associate Solicitor and a Deputy Associate Solicitor. The Division also comprises Counsels (supervisory attorneys), Senior Attorneys, Staff Attorneys, and support staff personnel (paralegals and legal technicians). Division attorneys provide legal services to the Division’s client agencies including rulemaking, legal advice and assistance, legal opinions, review of agency decisions, analysis of enforcement litigation, appeal litigation and defensive litigation.
Enforcement cases brought by the Division under laws administered by OFCCP are litigated before the Department's Administrative Law Judges (ALJs). Many of the cases include large classes of applicants or employees of Federal contractors or subcontractors, and virtually all require the use of expert witnesses. During OFCCP litigation, Division attorneys are also responsible for handling the administrative appeals before the ARB, monitoring and assisting RSOL attorneys with their cases, and defending the Department in defensive litigation filed in Federal court. On large, complex cases, two or more attorneys may work together as a team, and at times, the Division attorneys will partner with RSOL attorneys when handling a case.
In enforcement work under the LMRDA and CSRA, Division attorneys recommend bringing civil actions under the LMRDA, provide assistance to DOJ attorneys in prosecuting these actions, they bring administrative actions under the CSRA, and they provide advice during the supervision of union officer elections to labor organizations. Attorneys also work with OLMS in its efforts to reach a negotiated settlement with the labor unions in LMRDA and CSRA cases. Division attorneys may also assist DOJ or directly represent the Secretary of Labor in the Courts of Appeal in LMRDA cases.
Division attorneys also represent DOL in either affirmative or defensive litigation conducted in administrative hearings or Federal Court as a result of external EEO complaints filed under the laws administered by CRC. Division attorneys also represent the interests of CRC in appeals of CRC decisions or EEOC ALJ final decisions filed before the EEOC’s Office of Federal Operations.
Significant enforcement and defensive litigation work of recent date that Division attorneys have completed includes:
OFCCP v. Whirlpool, in partnership with RSOL attorneys in Dallas, Texas, CRLM obtained in settlement an award of $850,000 in back pay for a class of 800 African-American job applicants for entry-level assembler jobs at the company's manufacturing facility in Tulsa, Oklahoma. The settlement remedies discriminatory hiring practices that arose from the company's administering of a reading and math skills test and a structured interview that disproportionately eliminated African-American assembler applicants from job consideration.
OFCCP v. Bank of America. In this case involving hiring discrimination against minority applicants for administrative and teller positions, handled by Atlanta RSOL at the trial level, division attorneys successfully argued before the Administrative Review Board that a contractor's voluntary contemporaneous consent to an OFCCP compliance review is an exception to the Fourth Amendment reasonableness requirement. The ARB held that, if the Bank voluntarily consented to the review, the requirements of the Fourth Amendment would be satisfied regardless whether OFCCP selected the Bank pursuant to a neutral administrative plan.
Lugo v. Office of the Governor, Commonwealth of Puerto Rico, representing the CRC and the Secretary of Labor, we helped the Department recover $850,000 in back pay during settlement against the Commonwealth of Puerto Rico to remedy discriminatory terminations of Commonwealth employees on the basis of their political affiliation in violation of section 167 of the Job Training and Partnership Act (29 U.S.C. § 1577(a)(2)), which was the predecessor to section 188 of the Workforce Investment Act.
American Federation of Labor and Congress of Industrial Organizations v. Chao. In this case, the AFL-CIO challenged the final rule revising the Form LM-2 and creating the Form T-1. These forms are used by the largest labor organizations to disclose their annual financial conditions and operations. The Form LM-2 has been used to report generally on a labor organization’s own financial operations, while the From T-1 created specific reporting obligations regarding trusts in which such labor organizations hold an interest. This office worked with the Department of Justice in successfully defending the regulation in the district court. On appeal, the U.S. Court of Appeals for the D.C. Circuit upheld the Form LM-2 revisions, but a divided court vacated the Form T-1 because, in the majority’s view, the Department had failed to articulate a basis for imposing the reporting obligation generally as distinct from requiring reporting only on such trusts dominated or controlled by a union.
Ellis v. Chao, in which the plaintiff, an unsuccessful candidate in an election of Local 1000 of the Civil Service Employees Association, brought suit under Title IV of the LMRDA, challenging the Secretary's decision not to file suit to set aside the election. Under the LMRDA, the Secretary is required to sue a union when an election violates the LMRDA and the violation may have affected the outcome of the election. This case was brought before the U.S. Court of Appeals for the Second Circuit for the second time. The Court recently ruled that the Secretary conducted a thorough investigation and offered a reasonable explanation for her conclusion that the violations could not have affected the outcome of the election. Consequently, the Court upheld the Secretary's decision not to file suit to challenge the union election.
In addition, Division attorneys have also completed significant regulations and policy guidance for our client-agencies that includes:
- OFCCP "Internet Applicant" Final Rule, which amends OFCCP's Executive Order 11246 recordkeeping rule for Federal contractors and subcontractors to prescribe the records to be maintained and the demographic information to be solicited from job applicants who apply for work through the Internet or other electronic technologies.
- OLMS Form LM-2 Final Rule, which revised the Form LM-2, used by the largest labor organizations to disclose their financial conditions and operations. The Final Rule greatly enhanced the transparency of union financial operations, making more information readily available to union members than ever before, while reducing the filing burden on smaller unions.
- OLMS Form LM-30 Notice of Proposed Rulemaking, which proposed to revise the Form LM-30, used by union officers and employees to report financial transactions with and holdings in employers and businesses.
- OFCCP VEVRAA Final Rule, which would implement the 1998 and 2000 statutory amendments to VEVRAA, raising the Federal contract amount to establish VEVRAA coverage from $10,000 to $25,000, and extending VEVRAA protection to a new group of veterans, called "other protected veterans." The Division is also currently working on a VEVRAA NPRM that would implement the 2002 VEVRAA statutory amendments to increase the Federal contract coverage threshold to $100,000 for contracts entered on or after December 1, 2003.
- Assisting the CRC with the first-ever compliance evaluation of State programs that receive Federal financial assistance from the Department that they are providing meaningful access and benefits to program recipients that are limited-English proficient (LEP) in compliance with Executive Order 13166 and the civil rights laws administered by the CRC.
- Publishing regulations for CFBCI that implement the President's Faith-based and Community Organization initiative in DOL programs.
To access further information on the Departmental client-agencies that the Division works closely with that are described above, please use one of the links listed below: