OFCCP’s New Use of Publicity and Press Releases: New Sheriff, New Rules and New End Objectives
First, you should know that media policy is governed by the Secretary of Labor’s Press Officer, and not by the individual agencies within the U.S. Department of Labor. So, the rules could change again with the President’s appointment of, and the Senate’s confirmation of, a new Secretary of Labor to replace now departed Secretary Solis…but I do not think so since the DOL Press Policy has thus far been White House driven.
Every Secretary of Labor has his or her own personal sense of how to use the media and all of Secretary Solis’ predecessors had a formal “press (or media) policy” as to how and when to use publicity. Almost all of Secretary Solis’ predecessors used the media to magnify their substantive policies and to highlight vigorous enforcement of policies of interest to the Secretary or born of the times in which they found themselves.
Secretary Marshall (Carter Administration) was a thoughtful academician and rarely used the media to highlight what the Department was doing. He reserved use of Press Releases for major policy pronouncements or litigation victories illustrating laws about which companies should be aware so they did not make the same mistake one of their competitors made.
Ray Donovan (first term Reagan Administration) loved to highlight Wage-Hour and OSHA issues (things he knew about personally as the owner of the world’s then second largest construction company). I recall well Press Releases and “live” media coverage of the Secretary personally joining Wage-Hour investigators to storm “work dungeons” in Manhattan’s garment district where they found hundreds of illegal aliens working at sewing machines in dimly-lit, poor and cramped working conditions. It was a “must do photo op” for several Secretaries thereafter, complete with images of a large posse of Wage-Hour investigators battering down locked doors with sledge hammers: the White Knights riding in to the rescue. Great TV “12 second sound bite” imagery. But, the objective was to shut down the “sweat shops” and stop that kind of unlawful business conduct.
Short tenured Libby Dole (George Bush-the Dad) was clear that she would use her office as a “Bully Pulpit” from which to preach to employers, via the intermediary media, how to constructively engage their labor relations challenges. As to OFCCP, Secretary Dole lured Cari Dominguez back to the Labor Department and to OFCCP, initially, (now as a political appointee running OFCCP and no longer as a career civil servant) to champion the issue of upward mobility of minorities and women. Hence Cari and The Secretary hatched “Glass-Ceiling audits” and there was MUCH press around that issue. But, the focus in all of those media contacts was on the issue of the readiness of minorities and women to move up and into higher echelons on the organizational charts of federal contractor headquarter buildings.
Secretary Reich, in the Clinton Administration, used his media machine to publicize major accomplishments of each of his Departments and to develop a national consciousness about his favorite economic issue: the growing contingent workforce—an issue to which he had given much intellectual thought while a Professor at Harvard. Beginning with Secretary Dole and escalating in a major way by the time of Secretary Reich, “DOL watchers” like me began to first identify what I call “materiality thresholds”: i.e. dollar amounts agencies/DOL lawyers had recovered via settlement or trial judgment sufficiently large enough to spawn a DOL Press Release. Other than as to Glass-Ceiling issues, Secretary Dole seemed to need $1M worth of result before the DOL publicity machine began to purr. As a result, OFCCP rarely made it into her Press Releases. Secretary Reich’s Press flaks also needed $1M in a reported settlement or judgment to write a Release, but would occasionally step it down to $250,000 so that OFCCP could occasionally take a bow and allow the Secretary to bring another area of legal compliance need to the attention of the public.
AND THEN IT HAPPENED FOR THE FIRST TIME I HAD EVER SEEN: The White House Used OFCCP to Help Re-Elect a President
There it suddenly was: Page 1 (below the fold, at least) in the Wall Street Journal and later in the New York Times: OFCCP had collected $1M in back pay for women. (My first thought was that this was such a big case, I was surprised I had not heard about it. My second thought was that if it was such a big case, I wondered why I wasn’t defending it!) In a millisecond, I remember thinking, WAIT! There has got to be something wrong here. $1M is a lot of money in damages for an OFCCP case. So, I avidly devoured the WSJ story. And indeed there was something wrong. It was not A settlement or court judgment…rather the story was about eight or nine OFCCP Conciliation Agreements, each worth around $100,000. Prominently featured was a $76,000 compensation settlement involving 8 women managers from Word Perfect Corporation (an elite software firm in Provo, Utah and which I knew well since an anchor client of mine in those days was a next door neighbor and the largest employer in Provo). I recalled that Word Perfect represented itself in the audit and had thought it was a routine and non-problematic audit. So, I was perplexed…and I was further disturbed that the $1M back pay collection the WSJ headline had blared turned out to be a ruse: there were many little settlements, not one large one.
I was intrigued. I called up several of my friends at OFCCP and asked them what was up. They all told me the same two things: (1) They thought this was remarkable, too, and they knew nothing about it. The Secretary’s Press Office had not consulted OFCCP. The Secretary’s Press Office had done this unilaterally and OFCCP, like the nation, first read about the “Million Dollar Settlement for Women” in the WSJ; and (2) OFCCP had called the Secretary’s press flaks to find out what had happened and discovered a new media term: “bundling”. The Press Office told several representatives from OFCCP that The President was in a re-election campaign and The White House needed something to help him pitch women at a major speech he was about to give to a prominent women’s group. As a result, the DOL Press Office scooped up the 8 or 9 OFCCP Conciliation Agreements involving alleged female victims from over the last year and kept “bundling” them until they got to $1M: now, Walla! Newsworthy!
Suddenly, OFCCP Press Releases were no longer designed to suit the needs of the Bully Pulpit: that is to raise compliance issues to the attention of the public (let the public know there are “speed limits” out there) and further teach them to obey the “speed laws” because “crime does not pay”. Rather, suddenly, a DOL Press Release was designed to help a President get re-elected. Now, OFCCP was no longer a federal contract compliance agency: it had suddenly become a political operative and no longer just a hallowed independent federal investigative agency.
A few months later, I received the next part of this highly unfortunate story. Word Perfect representatives attended one of my annual October-November National Employment Law Institute Affirmative Action Briefings where they told this story to a spell-bound audience. Irene Mee, OFCCP’s then Denver Regional Administrator (back in the day when there were 10 federal regions, one of which was in Denver), had led OFCCP’s Glass-Ceiling audit team at Word Perfect while the female General Counsel and the female VP HR at Word Perfect had defended the audit for Word Perfect. And, as Irene had put it, it was a spotless audit until the very end. Irene was all but wrapped up with the exit interview, but said she had to address one last issue: there was compensation discrimination affecting 8 senior women, based on their sex, at Word Perfect’s Provo World Headquarters. Back pay amounted to a little over $76,000. And, there was more: the General Counsel and the VP HR were two of the 8 alleged victims.
Hearing this surprising news, the General Counsel and the VP HR composed themselves and reported they made gentle inquiry of Irene as to how this could be since (a) they (the two of them) had (personally) designed WordPerfect’s compensation systems; (b) they made or reviewed all of the compensation decisions made in the company, other than the CEO’s compensation (which the Board of Directors set); and (c) they (themselves) had no “comparators” since the General Counsel was the top Legal Officer of the Company and the VP HR was the top employee in her work unit. Word Perfect representatives also offered, humorously at the NELI AAB, that they told Irene that they had an even bigger problem, though: how in the world could they go down the hall and tell the CEO with a straight face that they had unlawfully discriminated against 6 other women and themselves based on their sex: “It sounds a little self-serving and like a great way to backdoor a raise”, the General Counsel was quoted as saying. “… so you are going to have to help us with that Irene! And, are you really sure we are victims?” Irene replied firmly that, regrettably, they were indeed victims and OFCCP had the facts and figures to prove it. (At the NELI conference, I pressed the Word Perfect representatives very hard as to whether they could recall the precise moment they had decided to intentionally underpay themselves, based on their sex, and to take the other 6 of their sisters in the Executive Suite down with them. They struggled to recall, and could not. The crowd just roared.)
The upshot of this unfortunate series of events was that the Word Perfect victim-discriminator women screwed up their courage to march down the hall to the CEO’s office where he was reportedly dumbfounded (as any CEO might be hearing this fantastic story). He reportedly wanted to know if there would be any publicity. Irene Mee agreed there would not be: $76,000 was below OFCCP’s press materiality thresholds, it was too small a matter, the company had been wonderful and very cooperative, and everything else in the audit was very tidy. Based on that, the CEO told his female victims (nee intentional unlawful discriminators against women) that $76,000 was only a few seconds of operating revenue for the company and not worth their time fighting about and to enjoy “the bonuses”. Move on. Next.
Irene Mee, too, was as perplexed as I was when she heard the news of the WSJ and other media reports of her Word Perfect Conciliation Agreement (many) months old at this point. Irene later told me she was “mortally embarrassed” and had immediately called Word Perfect to apologize. She had even offered to write a statement for them to the media. Too late. Damage done. (…and, DOL would NEVER permit that anyway, despite her embarrassment that The President had used her settlement for his own parochial political advantage at a time she thought she was undertaking a technical correction of what she saw as pay disparities). Lesson learned.
THE DOL’s CURRENT MEDIA POLICY
- There is no monetary materiality threshold (i.e. there is no rule or requirement that a settlement or judgment be greater than $X…in fact, no money has to be involved at all!).
- Note: That is why you see OFCCP suddenly, in this Administration, publishing Press Releases upon even the filing of Complaints with unquantified damage claims. The amount of money in the case is NOT important to OFCCP—which also explains why The Department has put out press releases concerning only $25,000 failure-to-hire Conciliation Agreements (Really? Really!) NOTE: While the “money on the table” does not motivate DOL to issue a Press Release, print media editors typically look for bigger numbers to alert them that the piece is “newsworthy”. The dollars involved also help print media editors with a key editorial task: placement — above or below the fold? left page (less prominent) or right page? 3-inches of copy, or 5 inches? screaming head line, or restrained? (Ah, I miss my days as a news reporter and editor). By the way, some prior DOL Secretaries have occasionally published Press Releases upon the mere filing of a Complaint, but they were few and far between in earlier administrations and were used only to highlight an important policy issue the DOL was raising to the industry’s or the public’s attention. My guess is, without really knowing “by the numbers”, that the Solis DOL put out more press releases upon the mere filing of a Complaint than the entire last, probably, 5 Administrations combined. OFCCP senior career management has certainly been very surprised at this turn of events. Contractors should no longer be surprised: it is now de rigeur with at least Secretary Solis’ PR shop, if, if, if the Complaint satisfies one or both of the newly-identified political objectives I identify in #2 or #3, immediately below.
- While DOL has not used a “dollars-based materiality threshold” during Secretary Solis’ tenure, there has been and continues (thus far) to be, however, an “issues materiality threshold”. Driven initially by a White House re-election strategy, and now by a strategy to increase the number of Democrats in the Congress (the 2014 fight for Senate seats appears to be shaping up to be a doozy) and to “permanently” convert Hispanics into the Democratic Party (71% of Hispanics voted for President Obama in 2012—up from 67% in 2008) in the same way Democrats assume they will always win the Black vote regardless of the candidate or his positions (93% of Blacks voted for President Obama in 2012—down from 95% in 2008), each of the federal Departments reporting to the President now focus their attention on so-called “vulnerable workers”. This is code in Washington, whether it appears on federal government websites or in budget documents or in enforcement strategy memoranda, to mean: “immigrant Hispanics”.
The White House rationale goes like this and is pretty compelling politics even if not terribly satisfying to a federal contractor caught in the middle of Presidential and political party politics:
So, that is why DOL routinely puts out press releases in OFCCP failure-to-hire cases involving less than even $100,000 and often much less…BUT involving primarily entry-level immigrant Hispanics. So, that is why two weeks ago DOL put out a Wage-Hour Press Release over a $34,000 Consent Judgment to which the employer had readily agreed while cooperating with DOL’s Wage-Hour Division to get a Mexican labor vendor compliant with US and California wage laws. And, it is why the EEOC is issuing Commissioner Charges and filing lawsuits alleging discrimination on behalf of “vulnerable workers”. While DOL may or may not get local press coverage for some of these trifling settlements (albeit important to any true victim being remedied in those cases, whether it be only 8, or 20, or 15 employees), its Press Releases go out automatically to a long list of race-based and ethnically-based constituency groups who then report to their various memberships that the Obama Administration is their friend and protecting them.
- Apart from “vulnerable workers”, what is OFCCP’s other “hot button” issue it is pursuing at the behest of the White House? The women’s vote. As I reported a year ago, the Democratic National Committee (correctly) determined that the 2012 election was going to be very close and that The President could only win reelection if he won “a significant percentage” of the women’s vote. The President has been very politically savvy about the women’s vote issue and has long seen an opportunity there.
Even before the alarm bells went off at the DNC in 2011 about the women’s vote in 2012, President Obama early saw support of “women’s issues” as a differential vote getter for him. It was thus no accident that the first piece of legislation he signed was the Lilly Ledbetter Act and it was not an accident that Lilly Ledbetter delivered a prime time address at the Democratic National Convention which nominated President Obama to be the Democratic candidate to run for a second term. Did it work? You bet! 11% more women voted for President Obama in 2012 than voted for the other guy (you know, what’s his name).
So, anything “women-related” is hot news for the White House. Indeed, the President has made chairing various Women’s-related Task Forces the Vice President’s #2 job (his # 1 job is to attend state funerals around the world so the President and Michele don’t have to do so). And, federal contractors BEWARE: OFCCP is currently so desperate for a headline as to women and compensation, it will crow about just about anything. After 4 years, 12,000+ compliance reviews looking at employee-level compensation data, involving over ten million employee compensation files, OFCCP has not found more than $500,000 of alleged compensation discrimination in any year, and has not yet proved even $1 worth of unlawful compensation discrimination to a court. This is an agency in need of a headline…and a White House which needs to be able to report that it is continuing to aggressively hunt down THE COMPENSATION SNARK. Be careful out there. You could be the next WSJ headline, all because you cooperated and were perhaps “a good guy” to gracefully resolve a gray area compensation question (among the hundreds or thousands of compensation decisions your company makes each year).
|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.|