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The U.S. Department of Labors (DOL) Office of Federal Contract Compliance Programs (OFCCP) recently reminded federal contractors that the government has broad authority to audit and investigate contractors equal employment practices and policies. It is critical that contractors take note of such authority because failure to comply with OFCCP rules and regulations can result in significant sanctions.

On December 30, 2021, a DOL administrative law judge ordered a federal contractor, Convergys Customer Management Group, Inc., to provide all information requested by the OFCCP upon penalty of debarment and cancellation of contract. The long-standing dispute arose in 2014 after the OFCCPs selection process chose 16 different Convergys establishments for affirmative action audits. The contractor refused to submit its affirmative action programs and other supporting documents to OFCCP, relying on several bases, including a challenge to OFCCPs constitutional authority to conduct the review and a contention that OFCCPs process was not neutral.

The administrative law judge rejected the contractors arguments. The judge determined that, because the OFCCP did not seek nonconsensual entry onto Convergys property and the requests were limited to the off-site review of documents, the less stringent Lone Steer standard applied. Under this standard, an inspection must be limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. In determining that the OFCCPs document requests did not violate the Fourth Amendment, the judge concluded that the requests satisfied the Lone Steer standard because they were limited to Convergys affirmative action plans and supporting data and directly related and relevant to the OFCCPs compliance responsibilities and authority under 41 C.F.R. Chapter 60.

In addition, the judge determined that Convergys arguments regarding the OFCCPs selection process were without merit because the neutrality of the initial selection process was not relevant. Rather, the judge looked to the agencys authority and determined that the Lone Steer standard focuses on the breadth of the subpoena rather than the motivation for its issuance. Therefore, Convergys was not excused from providing the requested documents based on any alleged lack of neutrality in the OFCCPs selection criteria. As a result, the judge ordered Convergys to provide the requested documentation and threatened termination of all existing contracts and debarment if Convergys fails to comply.

This dispute harkens back to several decisions that challenged OFCCPs authority to conduct off-site and on-site review of documents. See United Space All., LLC v. Solis, 824 F. Supp. 2d 68 (D.D.C. 2011) (upholding OFCCPs authority to obtain records for desk audit). The decisions squarely cemented OFCCPs authority to utilize its selection process to select and review federal contractors for compliance audits. While Convergys argued that contractors should have more information on how OFCCP selects contractors, the judge followed established precedent that OFCCPs process satisfied the Fourth Amendment.

The clear win for OFCCP and the timing of the decision is a crucial reminder for federal contractors and subcontractors of the governments broad audit authority with regard to affirmative action plans. As we recently reported, OFCCP is actively enforcing affirmative action compliance by requiring contractors to verify through the System for Award Management (SAM) database that they have developed and maintain their affirmative action plans.

The system will include a SAM declarations page where contractors will affirm that they have developed and maintained affirmative action programs at each establishment, as applicable. On December 2, 2021, OFCCP announced registration for the Affirmative Action Program (AAP) verification portal. Beginning March 31, 2022, contractors will be able to access the portal to certify their AAP compliance and, by June 30, 2022, contractors must certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.

If OFCCP selects a contactor for audit through its neutral selection process, contractors will submit their AAPs through the portal. Two user guides govern the process (Admin Guide; Federal Contractor User Guide). Notably, it remains the case that the government is not requiring federal contractors to submit AAPs unless OFCCP selects the contractor for audit.

The OFCCP is becoming more aggressive in ensuring that contractors meet their affirmative action compliance obligations. In addition, once selected for review, the agency has plans to step up its evaluation of nondiscrimination practices such as compensation discrimination and the use of artificial intelligence in hiring. Deep evaluation of a contractors pay practices and hiring systems by experienced counsel are central to knowing where contractors stand and prepare of any potential compliance audits Indeed, as seen in the Convergys decision, the DOL is willing to recommend suspension and debarment of contractors for noncompliance. Contractors who are unclear about their coverage, compliance requirements should consult with experienced counsel.

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Federal Contractor Threatened With Suspension and Debarment for Not Submitting Affirmative Action Plans - JD Supra

Elites helping elites

Laura Ingraham: For the Great Reset cheerleaders, there will always be a new variant to justify more lockdowns and mandates

Laura Ingraham said she believes "the elite," especially those who gained prominence during the novel coronavirus pandemic, do not want to return to a pre-COVID-19 world on "Ingraham Angle" Tuesday.

Ingraham believes they are afraid if COVID-19 becomes less relevant then they would as well. "The elites are afraid that the House of COVID, which they built on sand, is about to be washed away for good," she said. "They're going to cling to [power] with a white-knuckle fury."

Dr. Anthony Fauci (AP Photo/J. Scott Applewhite, Pool)

"The Great Reset cheerleaders" will always look for ways to implement restrictions, according to Ingraham. "There's always going to be a new variant to justify more lockdowns, mandates, [and] more controls."

The Fox News host believes the elites hate the freedoms in America, especially the Constitution, which was designed to prevent tyranny. "Our entire constitution, its principles properly upheld, is a huge obstacle for the one-world crowd. The First Amendment, the Second, the Fourth Amendment, the Fourteenth Amendment they all guarantee protection to individuals against the oppressive actions of the state."

INGRAHAM: HERE'S HOW REPUBLICANS CAN DEFEAT BIDEN AND RADICAL LEFT

Centers for Disease Control and Prevention (iStock)

"It's obvious that most of our elites prefer China's system of government, where dissenters are easily silenced. No exceptions made. Population control, lockdowns, mass surveillance, propaganda in the schools the elites really aren't bothered by any of that. As long as they keep their professional perches and money flowing," Ingraham said.

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"They prefer the Chinese way. No need to explain. Just do what you're told or else. Again, the elites like it that way. But the truth is, even with all their money and all their power, the elites are running into reality. Their ideas just don't work. Their solutions for mass control fail."

China's President Xi Jinping speaks during a bilateral meeting with U.S. President Donald Trump at Trump's Mar-a-Lago estate in Palm Beach, Florida, U.S., April 7, 2017. (REUTERS/Carlos Barria)

The only solution to the conundrum posed by the elite's greed is "to take their power away and there will need to be consequences for the decisions that were made that harmed our kids, caused needless suffering and death, and turned our economy upside down," Ingraham said.

Ingraham added that the elites must be replaced with new ones. "We'll have to elevate our own elites. Like some of the voices we featured on this show over the past two years, they've been consistently right yet vilified for their courage and tenacity."

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Ingraham on politicization of COVID: Don't expect the elites to give up power easily - Fox News

K-9 units faced some competition from human crime sniffers in Des Moines, Iowa, after three officers claimed olfactory prowess during a traffic stop on October 5, 2019. Court documents from the U.S. Court of Appeals for the 8th Circuit revealed that the officers claimed to detect marijuana while driving behind the defendant, Vernon Shumaker.

The officers testified that they detected less than one gram of marijuana in a closed container coming from a moving car, a football field's length away, while a hefty breeze cut across traffic. They supposedly picked up the scent of burning marijuana through the open windows of their patrol car and pinpointed the source to a specific vehicle, two cars ahead of them.

Officers insisted "without a shadow of a doubt" that the whiff gave them probable cause to stop the car. They discovered a few unlit marijuana blunts stashed in a covered ashtray. They also found a gun, leading to Shumakers' arrest for being a felon and drug user in possession of a firearm.

Prosecutors had what they needed for conviction, though they faced one small hurdle, the Fourth Amendment. Officers must have probable cause before they conduct searches and seizures. Yet when Shumaker filed a motion to suppress evidencebased on the limits of human nosesthe district court sided with the officers. The 8th Circuit upheld the ruling on December 29, 2021.

Courts are the bulwark of civil rights. Citizens need an engaged judiciary that puts the government to its burden. Yet too often, courts bend over backward to justify officers' testimony, no matter how implausibleeven when government officials have clear conflicts of interest.

Iowa law enforcement agencies routinely use traffic enforcement to generate revenue through a money making scheme called civil forfeiture. When officers seize cash and other valuables, civil forfeiture forces property owners to file affidavits and pay legal fees to recover their assetseven when they are innocent of wrongdoing.

Costs often outweigh the value of seized items, prompting many property owners to walk away. Despite reforms that the Iowa Legislature passed in 2017, some motorists permanently lose assets without ever being arrested or charged with a crime. Police and prosecutors keep 100 percent of those assets.

"Policing for Profit," a 2020 report from the Institute for Justice, shows that civil forfeiture generated more than $100 million for Iowa law enforcement agencies in the last two decades.

That's a strong financial incentive for aggressive traffic patrols. The Special Enforcement Team within the Des Moines Police Department, which picked up Shumaker, specializes in seizures, and one team member even testified that they make "as many stops as possible."

It's no surprise that an entire cottage industry has sprung up around this practice. The director of the Smell and Taste Center at the University of Pennsylvania Medical Center testified on Shumaker's behalf, stating that the government's case reeked of misconduct. The prosecution followed up with their own expert witness from Desert Snow, a multi-million dollar company that trains cops on civil forfeiture proceedings, who claimed that humans can do amazing things with their noses so long as they have the proper "training and experience." And this assertion was good enough to pass judicial review.

Passive judges who accept government arguments without rigorous scrutiny are corrosive to the Constitution. Clearly something is rotten in law enforcement and the courts can't seem to smell it.

Excerpt from:
Cops With Super Sniffers Fool No One Except the Judge - Reason

Portland police officers approach protesters on May 30, 2020. MATHIEU LEWIS-ROLLAND

The Portland Police Bureau (PPB) estimated that, in 2020, its officers used force more than 6,000 times against members of the public participating in racial justice protests. This force came in the form of tear gas canisters shot into crowds of people, baton strikes, stun grenades filled with rubber bullets shot from an officer's gun, and forceful shoves. These actions resulted in countless injuries amongst members of the public, several lawsuits, one officer arrest, and more than one hundred public complaints filed against the bureau.

Yet, according to the Independent Police Review (IPR), the city department that investigates officer misconduct complaints, none of those forceful incidents violated city policy. In a recent deposition interview with lawyers involved in one protest-related lawsuit against the city, IPR Director Ross Caldwell explained how PPB's directives make it impossible for the city to hold individual officers accountable for using riot control weapons against the public.

"...The directives make it really challenging for us to find something out of policy for the use of tear gas on unintended people," Caldwell said in the deposition by Ashlee Albies, one of several attorneys representing plaintiffs in the Don't Shoot Portland v City of Portland case.

The lawsuit accuses the city of indiscriminately using tear gas and munitions against members of the public during Portland's 2020 protests. On Wednesday, plaintiffs' attorneys filed a motion asking that a federal judge grant them permission to treat the lawsuit as a class action case. The 83-page document relied on interviews with Caldwell and others to explain how there are a sufficient number of people with common legal claims against the city to qualify for class action certification. Attorneys used the faults of the IPR process to illustrate how the city has a pattern of failing to hold officers accountable for misconduct.

Caldwell points to PPB's crowd control directive as reason his office can't hold individual officers accountable for their forceful actions during protests.

According to that directive, riot control agents can only be used by officers if they get authorization to do so by their manager, or "incident commander." This distinction effectively removes all responsibility from the officer who fired a munition. Even if city policy allowed IPR to hold an individual officer responsible for shooting a tear gas canister into a crowd, Caldwell said that it would be difficult to identify which particular officer fired the canisterlet alone expect the person who made the complaint to know the officer's name.

The court motion mentions that the "vast majority" of cases that were closed by IPR shortly after being submitted by the public were closed because IPR could not identify which officer was responsible for the conduct, based on the information that was provided.

Caldwell also points out that some specific complaints aren't addressed by PPB policy. In his deposition interview, Caldwell mentions people who reported being impacted by tear gas despite not being involved in any protest actions.

"[The directive] doesn't say anything about making sure this doesn't leak into people's houses that live near the PPB headquarters or anything like that," said Caldwell. "And... it doesn't spell out that the kind of innocent bystander being exposed to tear gas is a violation."

IPR went as far as green-lighting several incidents that a federal judge had already determined to be unlawful.

Shortly after the Don't Shoot case was filed, District Court Chief Judge Marco Hernandez ordered Portland police to limit their use of tear gas and other crowd control munitions to instances in which the lives and safety of the police or the public were at risk. Hernandez also prohibited officers from using force against people engaged in "passive resistance." This order was already in alignment with PPB policy, yet Hernandez later found officers had violated the order during a protest in late June 2020.

Yet an IPR investigation into those officers' use of force against protesters was found to be in alignment with city policy. This contradiction didn't seem to bother the city.

"The City has little concern about making findings in direct contradiction to a federal court judge," the motion reads. "In fact, the City affirms that... if the same incident happened today, the City would find the same conduct to be within policy."

The legal filing outlines some of the use of force incidents that were unquestioned by city investigators. Lawyers found that, from a sampling of 41 reports officers must file after using force (called Force Data Collection Reports), there were 45 uses of force documented that appeared to violate the Fourth Amendment, which prohibits an officer's search and seizure of a person without probable cause.

For example, the motion explains that one officer justified pepper spraying someone because the person had yelled "Don't fucking touch me" from at least five feet away. Another officer reportedly shot someone with a less-lethal munition because that person was behind a tree taunting the officers by jumping out from behind the tree and then ducking back behind it." A third officer pepper sprayed someone who was walking towards a police car, claiming that the person was going to kick the car. None of these examples show evidence, or probably cause, that suggest a person was going to commit a crime.

PPB officers' heavy-handed use of force during the 2020 protests has been under close scrutiny from the US Department of Justice (DOJ). In 2014, the city entered a settlement agreement with the DOJ after federal investigators found PPB officers to have a "pattern and practice" of using force against people with a mental illness. While the city had made significant moves to adhere to the fed's agreement in recent years, the actions of police during the 2020 protests reversed much of that work.

In July, the DOJ demanded that PPB improve its crowd control tactics with several new measures, including a directive to hold responsible incident commanders who granted officers permission to use force during 2020 protests. The city has reportedly agreed to these new requirements.

Juan Chavez, another attorney representing Don't Shoot plaintiffs, said his legal team's findings show how Portland's past decade of police reformsranging from additional officer trainings to new paperwork to track officers' use of forcehave neglected to improve its police force.

"A lot of people have been demanding this kind of accountability for long before the uprising of 2020, but all weve gotten is pats on the head and reassurances that things are fine, that [the city] has all these processes in place to deal with misconduct," said Chavez. "That all dissolved within a week in May 2020."

He continued: "The public now has proof that an abundance of uses of force were not reviewed in any way that would have passed normal scrutiny if, in fact, the city was wanting to hold someone accountable."

Continue reading here:
Most Officers Who Used Force During 2020 Protests Have Been Cleared By the City of Misconduct. Here's Why. - The Portland Mercury

As a Department of Justice attorney charged enforcing voting rights during the Obama administration, Laura Coates says she saw countless ways in which the Voting Rights Act of 1965 was being undermined.

"People went to great lengths to try to engage in voter intimidation, whether it meant trying to move polling places to known Klan locations [or] changing or attempting to change the Election Day practices," she says. "Jurisdictions ... would try to advertise their elections on a different day than Election Day on Spanish language [radio] stations."

Coates saw voter rolls being purged, and instances where jurisdictions pretended that widespread voter fraud was taking place. And, she says, it wasn't just happening in Southern states.

"[It was] also in jurisdictions you wouldn't expect," Coates says. "We would investigate places in Washington state and California and Philadelphia, in the Northeast and all through the country. And so the perception that Jim Crow only flew below the Mason-Dixon line when it came to voting rights was actually a fallacy."

To make matters worse, it seemed like lobbyists and elected officials at both the state and federal levels would often interfere, rendering investigations futile.

"They would ... put their thumb on the scales in terms of which jurisdictions we looked at [and] which jurisdictions we were proactively investigating," Coates says. "It was frustrating for me to [see] the politics of how we prosecute cases."

Coates moved out of the Civil Rights Division and instead became a federal prosecutor. But while she had felt like a hero as an advocate for voting rights, she sometimes wondered if her new position made her a traitor to her people.

"I was viewed as an agent of The Man," she says of her role as a federal prosecutor. "[I was] considered and viewed and conflated with people who, for the public's perception, were against the communities of color, were against Black people, were trying to harm them in some way."

Coates eventually left the DOJ altogether. She now teaches law at George Washington University Law School and is a senior analyst for CNN. Her new memoir is Just Pursuit: A Black Prosecutor's Fight for Fairness.

On feeling called to work for civil rights

I revered the heroes of the civil rights movement, those who are the sung and unsung heroes. ... For me, when I thought about who my heroes were, it was those people who saw an injustice, thought about a way to solve it, took advantage of every different aspect of our government to do so, and advocated for those who didn't have a voice. And for me, I wanted to be and walk in those shadows, in those footsteps, and feel as though I had given back in some small, yet meaningful, way to those who had given so much to me.

On how the dilution of voting rights puts American democracy in peril

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Democracy is absolutely in peril, not only because of the Big Lie [that Trump won the 2020 election] that questioned the integrity of our electoral system, but also because it's a lie that jurisdictions were, in fact, believing that there was widespread voter fraud. In many respects, the jurisdictions that have already tried to claw back the Voting Rights Act and have tried to codify different aspects of this lie of widespread voter fraud, they wanted to do it before Donald Trump. They wanted to do it before the 2020 election. They just find it convenient to be able to capitalize on this Big Lie because now it had the platform and gravitas of a sitting president of the United States. But our democracy is in peril every time we claw back the gains of the Voting Rights Act, because we dilute voting power, we dilute voting strength, we undermine the philosophy of one person, one vote, and we pretend that race has no impact and that in and of itself is a lie.

On being seen as a hero in her community when she was in the voting rights division and as a traitor when she became a prosecutor in the criminal division

I did not appreciate ... how the two roles were in such stark contrast in terms of public perception. When you are a civil rights advocate and civil rights trial attorney in the Department of Justice, you are presumed the advocate on the side of the people who are most impacted by discrimination.

As a federal prosecutor ... I noticed from the very beginning the ways in which, when I'd be inside the courtroom, I would see the ways in which people would question my allegiance. Was it to the United States of America? Was it to the Black community? Was it to the Department of Justice? Whose side was I on? And I would often be criticized by my defense counsel counterparts about how somebody who has an interest in civil rights, as a Black woman, how could you be on the side of prosecutors?

On her relationship with the police, as a Black prosecutor

I worked very closely with the police. They were completely critical to the ability to prosecute cases, whether it's through their testimony, through their evidence gathering, through their help in contacting and being a go-between for witnesses and others. But I always met them with a healthy level of skepticism from having been and continuing to be a Black woman in America. I'm the daughter of a Black man. I'm the wife of a Black man. I am the mother of a Black girl and a Black boy growing up in this world, and I have been a student of history and a student of the present, and I'm trying to ensure that I can have an impact on the future. ...

I look at [police officers] through the lens of a skeptical juror who is questioning whether they have followed the Fourth Amendment, whether they have used the right amount of force, whether their statements sound more like the regurgitation of a script or genuine observation. And that was always a difficult needle to thread, to, on the one hand, know that you must rely on them and also to doubt them based on your own personal and professional experience that sometimes, like everyone else, they are fallible.

On what Dr. Martin Luther King Jr. means to her

When I think of Dr. King, the first thing that comes to mind is going to his museum down in Atlanta and looking at the number of times he was arrested. Now that might seem an oddity to people. Mostly, we think about his speeches and the impactful words, and he was an eloquent orator, and he was obviously deserving of all the accolades as it relates to his speechwriting and his sermons. But for me, I think about the number of times he was a civil rights first responder, ... the number of times he went into the battlefield, the number of times he pulled an entire race out of the wreckage, the number of times that he subjected himself to physical violence. It's the notion that myself, as a mother, looking at my young children, when all I want to do is grow old and watch them grow even older, that he had to accept the inevitability that he would not do the very things every parent wants to do. And why? Because he was thinking not only of his own children, but my children and my children's children. ...

Every time I think about his death, I think to myself, God, was that how young he was? And every year that I live beyond that, I thank him, because the life I have is because of the choices he made, because of the discomfort he experienced. And I just love this man for making those choices and for aligning his moral compass with what he was willing to do.

Sam Briger and Thea Chaloner produced and edited the audio of this interview. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the web.

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Attorney Laura Coates has witnessed the dissolution of voting rights first hand - Wisconsin Public Radio News