Teleconference Series for Law Students on Careers in Administrative Law

The Section is hosting a series of teleconferences on career paths in administrative law. Three are scheduled, the first on Thursday April 4 from 12:30 to 2:00 EDT. This first session will examine Careers in Administrative Law and Regulatory Practice with Jonathan J. Rusch, Deputy Chief for Strategy and Policy for the Fraud Section, Criminal Division, US Department of Justice. Mr. Rusch is also the former Chair of our Section.

Two more teleconferences will be held over the coming months. Careers in Government and the Private Sector on Thursday April 18 at 12:30 EDT, and Careers as an Administrative Law Judge on Thursday May 23 at 12:30 EDT. Faculty for the last two session are yet to be determined.

Teleconference attendance is complimentary for Admin Law Section members, and $15 per line for non-members. Registration is required, and the form is available online.

Agency Spotlight: DOT Set to Approve Request To Acquire Kansas Corp.

by Shannon Allen

The Department of Transportation’s (“DOT’s”) Surface Transportation Board (“STB”) issued a Notice Tentatively Approving and Authorizing an application by a Canadian carrier that “provides transportation on both an interstate and intrastate basis across the United States” for acquisition of control over a Kansas corporation that “holds interstate operating authority” and “provides rail crew transportation services in over 20 states within the Unites States.”  The proposed transaction would result in a change of ownership, but would not change the nature or scope of operations or transfer any operating authorities.

Under 49 U.S.C. 14303(b), the Board must approve and authorize a motor carrier of passengers transaction it finds consistent with the public interest, taking into consideration at least:

·         The effect of the transaction on the adequacy of transportation to the public;

·         the total fixed charges that result; and

·         the interest of affected carrier employees.

The applicants state that the proposed transaction 1) will have no significant impact on the adequacy of transportation services available to the public, 2) will improve efficiency and lower the costs of operations, 3) will have no adverse impact on competition, and 4) will not have a significant adverse impact on carrier employees.

The STB, based on the application, finds the acquisition proposal is consistent with the public interest and should be tentatively approved and authorized noting “that the motor carrier passenger sector is competitive and has low barriers to entry.”  In addition, the proposal “will not significantly affect either the quality of the human environment or the conservation of energy resources.”

The STB is tentatively approving and authorizing the transaction, and, if no opposing comments are timely filed, this notice will be the final Board action.  Interested individuals wishing to oppose the application must follow the rules under 49 CFR 1182.5 and 1182.8.  Comments must be filed by May 13, 2013. Applicants may file a reply by May 28, 2013. If no comments are filed by May 13, 2013, this notice shall be effective on May 14, 2013.

Send an original and 10 copies of any comments referring to Docket No. MCF 21052 to: Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, send one copy of comments to Applicants' representative: David H. Coburn, Steptoe & Johnson LLP, 1330 Connecticut Ave. NW., Washington, DC 20036.

Don't Miss Section Brown Bag Lunch on Latest Developments at MPSB

On March 28, 2013, the Section will hold a Brown Bag Lunch  from 12:00 to 1:30 p.m. titled "Latest Developments at the Merit Systems Protection Board, CY 2012 Year in Review." Moderator Andrew Perlmutter with Passman & Kaplan P.C. and panelists Bryan G. Polisuk, General Counsel at MSPB, and Stephen Kostkowski, Attorney Advisor, Office of Appeals Counsel at MSPB, will discuss changes in statutes and regulations, and address important cases decided in the last year. The Registration form is available online.  You are welcome to attend in person or participate via teleconference. 

If you attend in person, beverages will be available.  Attendees are invited to bring their own lunch.  The session will be held in the John Marshall Room on the 9th floor of the American Bar Association (740 15th St. NW, Washington, DC 20005).

Agency Spotlight: Protecting the Wolverine

by Shannon Allen

Despite successful efforts to bring them back from near extinction in the 20^th century, wolverines may still be in danger from climate change.  The U.S. Fish and Wildlife Service (FWS) asserts that “climate warming over the next century is likely to significantly reduce wolverine habitat, to the point where persistence of wolverines in the [U.S.], without intervention is in doubt.”  As such, the agency seeks comment on a proposed rule that would provide threatened status under the Endangered Species Act for the North American Wolverine. 

The public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties are invited to comment particularly on the following:

• Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species.
• Additional information concerning the historical and current status, range, distribution, and population size of this species.
• Ongoing conservation measures for the species and its habitat.
• Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species.
• The reasons why FWS should or should not designate habitat as “critical habitat.”
• Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat.
• Additional information concerning whether it is appropriate to prohibit incidental take of wolverine in the course of legal trapping activities directed at other species.

The comment deadline is May 6, 2013 and may be submitted by one of the following methods:

• Go to the Federal eRulemaking Portal: http://www.regulations.gov. (Docket No. FWS-R6-ES-2012-0107).
• Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-2012-0107; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
• Attend a public hearing

Meet Kevin J. Schmitt, Law Student at UC Hastings College of the Law

by Nina Hart

 

Kevin J. Schmitt is a third-year law student at UC Hastings College of the Law. He is currently a Senior Articles Editor for the Hastings Law Journal and periodic contributor to the Yahoo! Contributor Network and Notice and Comment.  Below, Kevin shares his career aspirations and views on challenges facing administrative law practitioners.

1.      Where do you attend law school? What led you to attend law school? What are your plans for after law school?

I’m currently finishing my third year at the University of California, Hastings College of the Law. I wanted to go into law because of my combined fascination with government processes, policy and politics, and philosophy. Law, as a profession, seemed the best mixture of all of these. I’m also very interested in the nature of liberty and power structures and have always seen law as a way to understand how these concepts interact within a republican framework.

My plan is to start a career in some level of government. For most of my law school career, I focused on pursuing a career with a legislature or a federal or state agency. In the last two years or so, my studies led me to focus on state issues, and so I had planned to find a job with California’s Legislature or its Legislative Counsel Bureau. Recently, I cast my net a bit wider, and am looking into some exciting opportunities in the worlds of private practice, local government, and the court system.

2.      What interested you in administrative law?

As a political science undergrad, I wrote my honors thesis on presidential-congressional relations. In the course of my research, I ran into this unknown (to me) bit of legislation called the Administrative Procedure Act. As I delved deeper, I learned more about the process, including the role of OIRA, and saw how integral the administrative process is to American government. I found this to be fascinating stuff. At the time, it was also pretty shocking to learn how central administrative agencies are in the whole system. I’m sure I was pretty scandalized at first.

As I learned more about the rulemaking process and some of the policy rationale behind it, as well as the philosophy of Max Weber on which our whole bureaucratic system is based, I came to have a greater understanding and appreciation for the role of the administrative state. I’m really just continuing down that course of study now, applying the lessons I’ve learned from law school to some of these more policy-oriented thoughts. It’s been an interesting and rewarding intellectual process.

3.      What experiences with administrative or regulatory law have you had?

Probably my main interaction, outside of academic classes, was a seminar course that involved performing legal and policy research for a state agency. It was a great chance to work with top-tier attorneys on a cutting edge legal issue. My work involved the interplay of federalism and a major piece of federal legislation, so I was able to learn a lot about how both the state agency and its federal counterparts operated in regards to the issue. In addition to this, I was exposed to the administrative process when I interned for an Assembly Member who chaired an administrative oversight committee.

4.      Based on your experiences thus far, what do you perceive to be challenges facing administrative law practitioners? 

On a theoretical level, I think administrative law attorneys, at least those on the “outside,” need to keep in mind the balance between being an advocate for the client and building a partnership with the agency at the same time. Sometimes the latter approach will better serve the client’s interests. Most lawyers know how to be persuasive in an adversarial setting, but it seems like only a certain set know how to apply those skills in a more collaborative setting.

For those on the inside (or hoping to be!), there seem to be a whole range of issues. Some are purely structural – for instance, balancing the agency’s regulatory goal against what is permissible – but the economy is doing us no favors. Assuming that sequestration is going to hit, and now that budget cutting is the favored policy tool du jour, we’re going to have to figure out how to do more with less. In one recent article on the sequester, I recall that a DOJ attorney complained that he would still have to do the same amount of work, but thanks to mandatory furloughs he had one less day to do it all. It was a sobering reminder that the work of governing will still have to be done, and the demands on federal and state agencies are not going to lessen simply because there’s not as much money available to them anymore.

5.      For law students considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field? Are there any courses, other than Administrative Law, that you consider especially useful?

Take a course on legislation. It’s important to understand the politics of administrative law and to be able to keep an eye on bills that may affect your work. Also, since agencies are active in seeking to influence legislative action, it helps to know the process in order to understand how to accomplish your goal.

I’d also highly recommend a course of legislative and/or regulatory drafting. When I was interning for the Legislature, I had the chance to work on some of my Member’s proposed legislation, and I found it to be one of the most challenging forms of legal writing I’ve ever encountered. There’s a definite trick to being able to say a lot in few words and do so in a way that is comprehensible.

I think it can be useful to take a class in a field of interest, particularly if it’s one dominated by a particular agency. You would be remiss, for instance, to pass up a labor law course if you’re at all interested in the NLRB, because you get a more intimate understanding of how that agency operates than you will from a general administrative law course. If possible, I’d also try to get a summer job at one of these agencies, especially if you’re more interested in the adjudicative function of the agency.

Also, I had someone recently recommend taking an elections law course in conjunction with administrative law. The implication was that understanding elections law will give you a better handle on how the political appointees in the agency operate vis-à-vis the career staff. As I’m almost done with third year, I won’t be able to do this, but it sounds like an intriguing idea.

6.      From a law student’s perspective, how do you think a meaningful dialogue between practitioners and academics might be achieved? What are some of the “disconnects” or assumptions that each group might make and that need to be addressed?

I remember a story from when I was researching my undergraduate thesis. I was in D.C. as part of a semester abroad program and had managed to interview with a prominent congressional scholar. This particular scholar was fairly critical of the shift of power away from the legislative branch and towards the executive. In part, he blamed this on law schools, particularly the case method, arguing they failed to inculcate respect for the legislative institution among lawyers. I remember very clearly that he said that the case method was “the easy way to teach law, but a stupid way.”

I don’t wholeheartedly endorse this criticism, but I think it raises a fair point. In my work experiences so far, legislation and regulation don’t receive sufficient emphasis in the law school curriculum and, as a result, in legal scholarship overall. In my experience, a statute or agency rule is likely to be more important to a client than a court case. There’s also not nearly enough focus on policy considerations in court cases, partly because courts often feel like these issues are beyond their purview. I think practitioners understand the connection between law and policy, and I’d like to see that trickle into the classroom.

Schools needs to strive for better balance between the case method and emphasizing the political origins of law, and I’ve already seen some encouraging signs. At Hastings, for example, we’re required to take a first year course on statutory interpretation. Similarly, there are all manner of clinics and externship programs that allow law students to get into the field and get practical experience. In one of my current classes, we’ll often pause for a moment while reading a case and try to tease out why the legislative body or regulatory agency adopted the position it did.

My favorite parts of law school have been those where I had the chance to do real work – doing legal and policy research for an Assembly Member, analyzing a critical new development for a state agency, or drafting a memo or judgment for a judge. But I’ve also really appreciated getting into theoretical issues in the course of taking classes and seminars, and in all honesty I don’t think I would have been adequately prepared for my practical experiences without that background.

In short, there should be a better effort at blending. I know there’s been some talk around the country recently about providing students with more practical training on top of traditional law school courses. I think that sounds like a great idea and I hope more state bars take that approach. 

7.      Outside of the law, what are your favorite activities or hobbies?

I tend to do a lot of reading (mostly nonfiction, but a good novel is fun from time to time). When I can, I write short pieces for the Yahoo! Contributor Network, although for the last few months I’ve turned my attention to my final semester and haven’t submitted anything. Most of these pieces are on legal or political topics that interest me. Beyond that, I enjoy playing, and occasionally recording, music.

Section YLD Networking Breakfast

Greetings from Allison Bonnenburg, the Section Young Lawyers Division Liaison. 

On April 4, 2013, the Section will hold a complimentary networking breakfast for young lawyers at the 9th Annual Administrative Law Institute. The breakfast will take place from 7:30 - 8:30 a.m. in the Congressional Ballroom at the Capital Hilton (1001 16th St NW) in Washington, DC.  We are also offering Section young lawyers a special registration rate for the Institute -- 50% off the single day admission price ($100). Please email Anne Kiefer at anne.kiefer@americanbar.org to let her know if you plan to attend the breakfast. Attach the registration form found at this link if you would like to attend the Institute. The special offer expires March 22, so register now!

Even if you can't attend the Institute, I hope that you will come to the breakfast to share your thoughts and network with colleagues. Also, please take a moment to complete our brief young lawyers survery and tell us a little bit about yourself.  Looking forward to meeting you soon!

Agency Spotlight: More Time to Comment on Patent Small Claims Proceedings

by Shannon Allen

Stakeholders have more time to weigh in on the need for small claims proceedings in patent enforcement. After consulting with Federal judges, academia, private practitioners, and bar and industry associations, the United States Patent and Trademark Office (USPTO) published a request for comments from the public in the Federal Register on this issue. The comment period was set to end March 18, 2013. Section members and the public now have until April 30, 2013 to submit comments to the USPTO.

Public comments can focus on any issue relevant to patent small claims proceedings. The USPTO is specifically interested in comments that provide:

·         A general description of the need (or lack thereof) for a patent small claims court (or other streamlined proceeding), and why or why not.

·         Detailed views on how a preferred patent small claims proceeding should operate, including, possible venues, preferred subject matter jurisdiction, waiving right to jury trial, required pleadings, filing fees, multiple parties, attorneys’ role, case management, remedies, attorney fees, mediation, etc.

·         Any unintended negative consequences of a patent small claims proceeding.

Written comments can be sent by email (preferred method) to ip.policy@uspto.gov with the subject line “Patent Small Claims” or postal mail addressed to: Mail Stop OPEA, P.O. Box 1450, Alexandria, VA 22313-1450, ATTN: Elizabeth Shaw. Comments will be available for public inspection so they should not include any private information. 

Brown Bag Lunch Series Beginning March 20

The Section has announced two brown-bag lunches to be held starting next week in Washington D.C. The first will be a Cost Benefit Analysis Brown Bag on Wednesday March 20 from noon to 1:30 p.m. The first confirmed panelist is Rebecca MacPherson, Of Counsel at Jones Day and former assistant chief counsel for international law, legislation and regulations at the Federal Aviation Administration. Find out more about this important tool of rulemaking either in person or via teleconference. Registration form available online.

The second session will be held Thursday March 28 from noon to 1:30 p.m. and is titled "Latest Developments at the Merit Systems Protection Board, CY 2012 Year in Review." Panelists will discuss changes in statutes and regulations, and address important cases decided in the last year. Registration form available online.

Beverages will be available, and attendees are invited to bring their own lunches. Both sessions are being held in the John Marshall Room on the 9th floor of the American Bar Association in Washington.

Come Learn About Critical Issues in Regulation

Please join us for the 9th Annual Administrative Law & Regulatory Practice Institute: Critical Issues in Regulation. The Institute will be April 3-4, 2013 at the Capital Hilton in Washington, DC. 

On April 3, Anna Shavers, Program Chair, will welcome Joan Dailey and her colleagues for another very popular look at rulemaking and judicial review, during the “Rulemaking 101” program. The Institute will also cover a number of hot topics in administrative law including the constitutionality of recess appointments, extending OIRA review to independent agencies, and what technology can do for rulemaking.

Download the Full Agenda & Registration Form and register today!

Agency Spotlight: HHS Regulations Implementing the Affordable Care Act

by Kevin J. Schmitt

While much of the recent media attention focused on states establishing health insurance exchanges under the Affordable Care Act (ACA), the federal government is playing a significant role implementing key parts of the law. With only sixteen states plus the District of Columbia set to manage their own exchanges and seven more opting for a partnership approach, the federal government will assume full responsibility for running the remainder of the state health insurance exchange marketplaces nationwide. The Department of Health and Human Services (HHS) also made “expand[ing] health insurance coverage and ensur[ing] that the American people can rely on their existing coverage when they need it most” a top regulatory priority for Fiscal Year 2013. HHS is seeking comments on a number of proposed rules to achieve this goal:

• Coverage for Preventive Services: Issued in conjunction with the Departments of Treasury and Labor, the proposed rule addresses requirements under section 2713 of the ACA requiring insurance coverage of preventative health measures, including contraceptives. The proposal is part of an ongoing effort by these departments to ensure insurance coverage for these services while protecting organizations objecting to contraceptives on religious grounds. The proposed rule contemplates two key changes: (1) amend the criteria for the religious exemption to ensure that an employer falling under this exemption does not face disqualification “because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths;” and (2) “establish accommodations for health coverage established or maintained by eligible organizations . . . with religious objections to contraceptive coverage.”  The comment period closes on April 8, 2013.  Visit regulations.gov for instructions on how to submit comments.

• Small Business Health Options Plan: The ACA requires states running their own exchanges to establish a Small Business Health Options Plan (SHOP) to help small businesses provide insurance for their employees. The proposed rule would make a variety of changes to existing regulations governing the management of these SHOPs. First, it would align various aspects of the SHOPs with provisions of the Health Insurance Portability and Accountability Act. Second, the rule proposes a transitional plan for establishing the SHOPs to grant businesses more preparation time while allowing employees access to small group benefits.  The comment period closes on April 1, 2013. Visit regulations.gov for instructions on how to submit comments.   

• Essential Coverage: Section 5000A of the Internal Revenue Code, which requires individuals to maintain minimum essential coverage, is one of the most controversial aspects of the ACA. Certain classes of individuals are exempted from this requirement, and the health insurance exchanges are directed to issue certifications of exemption for qualified individuals. The proposed rule would establish the procedures by which the exchanges will determine eligibility for the exemption.  Interested parties are encouraged to act soon, as comments are due March 18, 2013. Visit regulations.gov for instructions on how to submit comments.

Kevin J. Schmitt is a third-year law student at UC Hastings College of the Law.  He is currently a Senior Articles Editor for the Hastings Law Journal. 

OPM Accepting Applications for ALJ Positions

OPM is now accepting applications for Administrative Law Judge (ALJ) positions with various federal agencies all over the country. ALJs preside over hearings required pursuant to the Administrative Procedures Act on a variety of issues including food and drugs, labor management relations and social security disability. This position closes March 15, 2013. Visit usajobs.gov for more information on how to apply. 

Meet Mary Bissell, Principal, Child Focus

by Nina Hart

Notice and Comment is pleased to spotlight Mary Bissell, Principal at Child Focus.  Child Focus is a national consulting firm that brings together innovative people, programs and policies to help non-profit organizations, foundations, and government agencies support America's children and families.  Below, Mary shares her administrative law experience and offers advice for aspiring attorneys.  

  1.      What is your experience with administrative or regulatory law?

Like many law students, administrative law never had a lot of magnetism for me.  I took Administrative Law because it seemed like a class that a well-rounded lawyer “should take,” not because it held any particular interest for me.  It was only when I began working as an Equal Justice Fellow at the Legal Aid Society of DC that I realized how administrative and regulatory law strategies were often a more effective – and efficient – fix for some of my clients, many of whom had already experienced years of delay with traditional legal reform and litigation approaches.  I also realized the power of economies of scale.  One change to DC public school regulations could bring relief to dozens of the clients on my caseload – and sometimes eliminate the need for individual legal representation altogether.

2.      Where are you working now and how has your experience with administrative law shaped your approach to legal or policy advocacy?

As a child and family policy advocate, my approach is based on an assessment of the fastest and more cost-effective way to bring about lasting social change.  Especially in this current Congressional environment of partisan rancor, I find that focusing on administrative and regulatory reforms is often the short cut to “getting things done.”  And while you can also develop strong relations over time when you lobby Congress for statutory reforms, you really develop strong relationships with leaders in the administrative context.  Strong relationships and plain dealing are critical in achieving administrative and regulatory reforms – and often those relationships bring rewards that last long beyond a specific proposal for change. 

3.      What led you to a career in law and an interest in administrative law?

For me, law school was not a fun or particularly interesting experience.  I felt that the Socratic method and emphasis on litigation and debate had limited application for me in the real world of problem solving.  That being said, when I began to see the things I learned in law school as tools (as opposed to a professional approach), I felt more comfortable with the skills I learned as part of a lifetime of skill building.  I now teach a class on advocacy skills for public interest lawyers.  What we want our students to understand is that every tool has its time and its place.  Lawyers can no longer afford to say, “that approach isn’t in my job description.”  You have to understand enough about each aspect of law practice to identify where the gaps are.  For me, administrative law is one of the many tools in the tool kit.  There is a time and a place for it, just as there is a time and place to elevate an issue using traditional and social media.

4.      Do you have any advice about “best practices” for attorneys who are preparing to handle administrative law cases or otherwise interacting with administrative regulations or agencies?

Effectuating lasting change is almost always dependent on lasting relationships.  You can have the best legal argument in the world and make the mistake of alienating a key bureaucrat or other decision maker early in your career.  Build strong relationships, be straightforward in your dealings with others, and you will realize that success is dependent on more than a strong grounding in law and strategy. 

5.      What do you think is the biggest challenge facing administrative law practitioners?

As with all legal specialties, lawyers often lose the forest through the trees.  In my experience in the public interest, the more “purist” administrative law practitioners have sometimes been short-sided in their overall strategic approach.  For example, they may find the perfect legal loophole to derail an administrative reform process, but destroy a key alliance in the process.  In the short run, they have accomplished their legal goals, but the approach is a pyrrhic victory over the long haul.

6.      For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

I am a big advocate of finding an issue or a cause that moves you and then trying a variety of tools to determine which ones fit your personality and life choices.  I wouldn’t recommend that a student pursue a career in administrative law or tax law or estate law right out of the gate.  Instead, find something that really makes you pound the table, exposes you to a wide range of experiences and let your career unfold over time.  I have always been skeptical of 22-year-old law students who know they want to spend their entire career in one area of the law.  A lucky few may find the right match immediately, but it takes work to figure out what you want to do when you grow up.  The happiest lawyers I know are those that take the time and have the courage to reinvent themselves on a regular basis. 

7.      Outside of the law, what are your favorite activities or hobbies?

My husband and I have two children, 11 and 13, which doesn’t leave a lot of time for hobbies (unless hobbies include driving our kids back and forth to sports practices and games).  But when I get the chance, I love to read, work out and like nothing more than hanging out with my family and friends.

DOT Seeks Assistant General Counsel

Submitted by Judith S. Kaleta, Deputy General Counsel, U.S. Departement of Transportatin (DOT)

The DOT, Office of the General Counsel is looking for a dynamic executive to serve as the Assistant General Counsel for Regulation and Enforcement. The application deadline is March 25, 2013, with interim reviews of applications received by midnight on March 7, 2013 and March 20, 2013.

The Assistant General Counsel will lead a team of attorneys, staff professionals and support personnel in providing legal advice and services in all matters related to the Department’s regulatory and enforcement activities. He or she will direct the oversight, assessment, and review of the multidimensional regulatory and enforcement activities and practices of one of the largest Federal Regulatory agencies to ensure conformity with the Administrative Procedure Act, other applicable statutes and Executive Orders, and Departmental policies. This executive will work on challenging and rewarding issues such as safety requirements for unmanned aircraft and driverless cars, environmental impacts of federally-funded transportation projects, training requirements for commercial truck drivers, motor vehicle fuel economy, and consumer protection. The executive will also represent the Department in conferences with other departments and agencies of the Federal Government, state, local and tribal governments.

 

The Assistant General Counsel will report to the General Counsel and Deputy General Counsel, will receive broad policy guidance and direction from them, and will be responsible for the effective operation of his/her office. The Assistant General Counsel will provide legal and policy advice to our highest officials. When appropriate, DOT will expect the Assistant General Counsel's recommendations to include innovative approaches to substantive and procedural problems. Because a high degree of trust and confidence must be placed in the successful candidate’s professional skills and judgment, DOT is seeking an individual with demonstrated leadership and supervisor abilities, a proven commitment to client service and a strong background in the relevant legal and policy fields.

 

DOT is looking for a diverse pool of highly qualified candidates. If you know someone who has the leadership qualities and may be interested in this position, please encourage him/her to apply through the vacancy announcement listed on USAJOBS.

Agency Spotlight: DOL OFCCP Replaces Compensation Guidelines

by Lynn White

On February 28, 2013, the Department of Labor (DOL), Office of Federal Contract Compliance Programs (OFCCP) published a notice rescinding two guidance documents related to compensation discrimination. OFCCP enforces nondiscrimination and affirmative action requirements for federal contractors. The agency rescinded the Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to Systemic Compensation Discrimination (Standards) which outlined “analytical procedures” for issuing a Notice of Violation based on compensation discrimination. OFCCP also rescinded the Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 (Voluntary Guidelines) which created a method for contractors to evaluate their own pay practices. The agency initially proposed the rescissions on January 3, 2011.

Removing Barriers to Enforcement

OFCCP Director Patricia A. Shiu stated that the Standards and Voluntary Guidelines created arbitrary barriers to “finding and combating illegal pay discrimination.” In particular, the Standards applied to pay differences among workers in specific job categories, leaving little room for analysis of other factors like discrimination in job assignments and unequal access to promotional opportunities. OFCCP further asserted that the Voluntary Guidelines gave employers the flexibility to analyze pay data based on their interpretation of how to apply the guidelines. If the interpretation was reasonable, the Voluntary Guidelines required finding contractors in compliance even if a different analysis suggested pay disparities. 

Issuing Clearer Guidance

OFCCP issued Policy Directive 307 (Directive 307) to replace the Standards, Voluntary Guidelines, and any previous policy guidance on investigating pay discrimination. Directive 307 provides a detailed description of the process OFCCP compliance officers should follow when reviewing compensation data during a federal contractor audit. This includes conducting a preliminary analysis of summary data, analyzing individual employee level data, and developing pay analysis groups, among other things. Director Shiu stated that the directive  provides "clear guidance for contractors to facilitate their success when it comes to providing equal opportunity to all of their workers."

For more information about the rescission and Directive 307, visit OFCCP’s website.