Live from Workplace Horizons 2025 - Trump's First 100 Days: OFCCP

Transcript

INTRO

You're listening to a special edition of We get work®, recorded live from Workplace Horizons 2025 in New York City, Jackson Lewis's annual Labor and Employment Law Conference. Over 500 representatives from 260 companies gathered together to share valuable insights and best practices on workplace law issues impacting their business today. Here's your personal invitation to get the insights from the conference delivered directly to you. We'll see you in 2026.

CONTENT

Alitia Faccone

Senior Director Of Business Development 

Good afternoon, Matt Camardella, principal in the Long Island office of Jackson Lewis, and welcome to Live from Workplace Horizons 2025. Thank you for sitting behind the podcast, mic with me this afternoon. This may be a silly question but tell us a little bit about you and your practice and what's going on right now.

Matthew Camardella

Principal, Long Island 

I co-lead the firm's Affirmative Action, OFCCP and Contract Compliance Group. I've been with the firm for 27 years now. We support federal government contractors and subcontractors with their compliance obligations as a result of those federal contracts and subcontracts. We do everything from developing affirmative action programs to preparing EEO1 and VETS 4212 reports. We support our clients in government audits and do a healthy amount of advice and counsel.

Faccone 

You did one of our speed rounds this afternoon, our popular speed round presentations kicking off the conference, and it was about the OFCCP. What did you cover in your presentation this afternoon?

Camardella 

We covered a lot of ground in 20 minutes, but we basically did a past, present and future. What the OFCCP has been up to in the past, what the immediate implications of Trump's executive orders on the agency and what we can expect to see going forward.

Faccone 

We know they had a big impact on the agency. How did that shape what you decided to cover in your presentation? What did you talk about?

Camardella

We spent a lot of time talking about both what changed and what didn't change. On the change side of things, one of the three affirmative action plans that contractors historically had to prepare, the one for minorities and females, went away. Making sure that contractors knew that they no longer had to do that. Updating them on the fact that the OFCCP is not going to be as vigorous an enforcement agency as it has been in the past. In fact, the future of the OFCCP is quite uncertain at this time. 

I spent a fair amount of time talking about the new certification that contractors are going to need to make in future federal contracts.  That certification is that they are not engaged in unlawful discrimination, including illegal DEI and acknowledging that the provision is material to the contract itself. That's important because it creates potential false claims act liability once it's a material provision of a contract.

Faccone 

Given all that, and I know you spend an awful lot of time on the phone with clients every day that are coping with the change, what are they most concerned about? If that's even a fair question, what kinds of questions do you get?

Camardella 

We get questions about everything, from, hey, does this mean I don't have to do affirmative action plans anymore, to was the OFCCP disbanded? The thing that is really giving clients the most anxiety is new risks that are arising out of these executive orders. One I just mentioned, which is this potential False Claims Act liability. 

The False Claims Act, interestingly, is a whistleblower statute. It incentivizes employees or concerned citizens to file claims against employers who may be defrauding the federal government. Now that we have this new provision in contracts whereby companies are certifying that they're not violating the country's civil rights laws, if an employee thinks they are as a result of some sort of DEI program, they can report that employer. If the claim is successful, they actually get a piece of the action – they get a percentage of the revenues that are recovered as a result of that specific claim. That has really concerned a lot of employers because that's a risk that they weren't facing before.

Faccone 

And I'm guessing the damages are pretty significant when it comes to false claims.

Camardella 

They are significant. The way that the False Claims Act works is every time you submit an invoice for payment, if it was done as part of a fraudulent activity on behalf of the employer, then they actually can be fined under statutory penalties for each one of those invoices. If you're one of these companies that's submitting an invoice every month to the government, and that invoices for half a million, two million, 10 million dollars, you can see how liability can rise very, quickly.

Faccone 

You can see why people are very, very concerned. Have those claims started to be made by employees? Are you starting to see those?

Camardella 

Good question. We haven't yet and that's because the certification itself has not started to show up in contracts yet. There's been a bit of a clumsy attempt by the administration to send certifications outside of the contracting process to contractors to actually sign, but it's been very haphazard. There's no consistency of form or process. It really hasn't happened yet, but once the Federal Acquisition Council passes regulations that has the appropriate language that will go into contracts. We expect there'll be an uptick in those types of claims.

Faccone 

We were just talking to Patty Pryor and one of the things that she mentioned is that people should try to practice patience, which is super difficult right now. Would you say the same thing, take a wait and see attitude and not try to rush to make crazy changes? What would you say to people or what would you say to somebody if they stopped you in the hall and asked you the question today?

Faccone 

I would agree. The fact of the matter is things are changing so rapidly, not just in the government contract compliance space, but also importantly in the DEI space. To move too quickly, you might create new risks that you didn't anticipate. What's the old saying? Nobody wants to be the tall blade of grass, so don't get too far out and don't stand out in a crowd. I would recommend, why don't you follow the herd, blend in and don't draw any unnecessary attention.

Faccone 

Not bad advice. How is Jackson Lewis helping not only your clients, but all clients cope with these and other issues related to the changes that have taken place recently?

Camardella 

We're spending a lot of time reviewing the issues, thinking about the issues and strategizing how best to advise clients. We are communicating with clients through our blogs. We are hosting a number of webinars on all types of content, all related to the first 100 days. We really feel like our primary objective here is to make sure that we are affirmatively and proactively advising our clients so that they know what's going on. They can get some sense of what they should do in the short term, even if they can't maybe make long-term strategic decisions just quite yet.

Faccone 

So, proactivity and patience at the same time. Matt, what are some of the other key takeaways you would share with our audience here at Workplace Horizons and with clients who aren't here today? 

Camardella

Importantly, you have to comply with what the law is. The law now is you do not prepare affirmative action plans covering women and minorities. You are not able to undertake diversity, equity and inclusion programs that are violative of Title VII, although that was the law before. Nothing's really changed there. This administration is going to look to make examples of employers. That's the first thing I would say is make sure that you are compliant with existing law and anything that's changed. 

Employers really need to take stock of their compliance and DEI programs to make sure that they are in alignment with this administration's enforcement priorities. The last thing is a lot of employers are looking for something to replace the things that they're no longer required to do, like these affirmative action programs for women and minorities because they want to ensure that their employment practices are nondiscriminatory. As I said in my presentation, the absence of a mandate is not a prohibition. If employers want to undertake proactive analytics to ensure that their employment practices are nondiscriminatory, they can do that. There's a benefit in doing that in that you now can safely certify that you are not engaged in illegal discrimination because you've actually done an analysis to conclude that. That's another thing that we're suggesting that employers take a look at.

Faccone

That's fantastic. A long time Jackson Lewis lawyer. What's great about coming to workplace horizons?

Camardella 

Well, besides the beautiful accommodations and the great food, it's the people. We speak to our clients day in and day out. Now we do it through the little Teams box, so we get to see people. Being with them in person, there is nothing better for making connection, chatting through issues, getting to know them a little bit more on a personal level. From my perspective, that's really the top thing that I take away from these conferences.

Faccone 

Well, was great being here with you this afternoon, Matt. Thank you so much for stopping by and enjoy the rest of the conference. Thank you.

OUTRO

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