Law Firms Forced to Adapt as Trump Sinks Contractor Bias Office

Attorneys and consultants who advise clients regulated by the Labor Department’s federal contractor watchdog are pivoting to diversity audits and immigration compliance as the agency verges on shutdown.

Congress is weighing whether to defund the Office of Federal Contract Compliance Programs after President Donald Trump gutted the agency in January by rescinding a decades-old executive order that established most of its purview.

Bigger and smaller employment-focused firms alike are adapting as their contractor clients need no longer comply with defunct OFCCP requirements on preventing race- and gender-based workforce bias.

Before Jan. 20, roughly 40% of small firm Silberman Law PC’s work was OFCCP audit response and defense, and affirmative action plan preparation. About half of that has been eliminated, founder Mickey Silberman said.

“No doubt there’s been a downturn in that work for law firms and consultants that focus in this area and many of those firms have sought to pivot,” said Silberman, who was previously chair of the affirmative action compliance and OFCCP defense practice group at large workplace law firm Jackson Lewis.

With Trump’s rescission of Executive Order 11246, the OFCCP no longer requires race and gender-based affirmative action plans and will not conduct audits for that type of discrimination in hiring, pay, and other workplace practices.

Firms have built business on assisting contractors with OFCCP compliance, including through yearly data analyses, evaluating employment decisions, and preparing affirmative action plans. They also assisted contractors with responding to bias audits, which could reach thousands of client job sites each year.

A given contractor will often seek the same law firms for OFCCP compliance help regularly and repeatedly, Jackson Lewis principal Matt Camardella said.

Beyond OFCCP

OFCCP compliance has traditionally created work for consultants and quantitative analysts in addition to lawyers.

Jackson Lewis employs several statisticians who conduct pay equity analyses for clients under the direction of attorneys. Most of that work came during OFCCP audits, and the lack of audit activity has shrunk the pay equity analysis work, Camardella said.

The firm recently expanded the scope of its “Affirmative Action, OFCCP and Government Contract Compliance” practice group under the new moniker “Government Contracts and Compliance.”

“We’ll definitely see a diminished burden on the contractor community, but there’s going to be other things that rise up in its stead and we still don’t have full picture,” Camardella said.

The OFCCP resumed action in July on its remaining regulations, which prohibit bias against veterans and disabled workers. The White House budget proposed rehousing those functions elsewhere in the government as the agency dissolves.

Small firm Roffman Horvitz PLC still does OFCCP work, but co-founder Alissa Horvitz said it’s “definitely expanding the kinds of non-discrimination compliance advice that we’ve provided in the past to other areas like human resource compliance.”

“We are employment lawyers, and we are trying to ensure that we are able to help our clients with more than just OFCCP now,” said Horvitz, who is a former co-chair of the OFCCP practice group at large law firm Littler Mendelson.

Part of Roffman Horvitz’s expansion includes a collaboration with OutSolve, a provider of employment compliance solutions. This will increase the firm’s capacity to help employers with I-9s as it shifts to more immigration compliance work, Horvitz said.

Silberman Law is also expanding its focus on immigration, providing related trainings for attorneys and hiring experts, in a bid to address “a marked increase in requests” by employer clients for I-9 compliance audits and related advice, Silberman said.

Workforce Reviews

Trump’s gutting of the OFCCP is part of a broader push to root out diversity, equity, and inclusion programs. The order rescinding EO 11246 directed agencies to identify up to nine potential civil compliance investigations of companies.

Trump also called for agencies to require contractors certify they don’t operate DEI programs the administration would deem discriminatory.

DCI Consulting founder and president David Cohen said his company is doing more DEI risk assessment reviews for clients, which are entirely new since January.

The Equal Employment Opportunity Commission and Department of Justice released guidance in March outlining what constitutes discriminatory DEI.

“Many of the administration’s attempts to define illegal DEI have resulted in some novel positions, so clients are caught up sort of between those positions and where courts have landed. A large part of our work has been trying to help clients navigate that divide,” said Perkins Coie LLP senior counsel Christopher Wilkinson, a former DOL attorney.

In May, the administration said it wants to use the False Claims Act to target contractors’ DEI programs specifically.

Even without the OFCCP’s requirements, some contractors may choose to continue reviewing workforce demographics for race and gender.

“There is nothing illegal or wrong about conducting proactive analytics to identify arbitrary and potentially discriminatory employment practices. I think that’s best practice,” Cohen said.

New OFCCP Director Catherine Eschbach asked contractors to share information about rollbacks to regulation compliance, but firms aren’t required to respond.

Others may continue reviews to comply with state anti-bias regulations.

The White House’s proposal to eliminate the OFCCP is not set in stone. The House labor committee didn’t appropriate funding for the agency, but the Senate committee slated about $105 million to fund what little of the agency remains.

A future administration, however, could seek to bring enforcement back—and with it the need for more compliance assistance, Silberman said.

“The pendulum in this administration has swung very far against affirmative action and DEI programs and robust EEO generally, but in my experience when the pendulum swings far in one direction, with a change in administration in the future the pendulum does not swing back to the middle,” he said.” It swings back often far in the other direction.”