In the Empire of Labor, Justice Cannot Abide

In the dwindling days of the Obama administration, literally hours before President Trump was sworn in, the Obama Department of Labor (DoL) breathlessly raced to  file a barrage of administrative enforcement actions against federal contractors in the Office of Federal Contract Compliance Program (OFCCP). These lawsuits are against significant corporations such as Oracle and Google and are emblematic of the Obamaite exaltation of monolithic governmental power to the detriment of fundamental fairness, due process and, far too often, common sense.

Americans dare not forget the Obamaite ethos of “hope and trust” -- hope for the best and trust the government knows better than you. In Obama's groupthink progressive government formulation, the government is not a tool for the people's use, but the very foundation upon which all of American prosperity is built. Obama’s progressive/socialist government shorn of transparency laid claim to all successes and disavowed individualism.

Genuine fairness, reason, or wisdom seldom come into play when policy edicts are delivered to an unquestioning, obedient public. Who can forget: “if you've got a business, you didn’t build that”? In Obama’s political realm, government is not dependent upon the people, but the people are dependent upon the government. All citizens are wards of the state. The all-powerful and all-knowing government Agency State decides the best path for each person and each endeavor. The Deep State Obamaite holdovers ensure that these anti-Jeffersonian principles never fade. Nowhere is this ethos more apparent than in the Department of Labor, where justice does not abide.

Of course, the Trump Administration was undermined by a Deep State through a stunning disavowal and steady disregard of its powers to fire political apostates. President Trump has enemies behind every corner. 

Trump’s Secretary of Labor, Eugene Scalia who despite his genetic bona fides as a conservative liberty-minded constitutionalist, has not moved the needle a whisker as regards reforming the social engineering Obama DoL under his charge. The OFCCP continues to avidly pursue the Obama era’s politically motivated lawsuits against companies like Oracle for allegedly discriminatory wage practices using outcome-oriented statistical manipulation to find discrimination on paper without any evidence of actual Title VII discrimination.

The stunning truth is that few, if any, of the OFCCP’s social engineering victims have intentionally violated applicable labor laws. Unlike disparate treatment, which focuses on intentional discrimination, the disparate impact theory used by the OFCCP can find discrimination even in the absence of intent.  Many of these disparate impact cases do not involve illegal or even actionable workforce discrimination under the myriad labor laws, specifically Title VII of the Civil Rights Act of 1964.

Even more stunning is the fact that the OFCCP has the power to investigate, charge, adjudicate and punish companies like Oracle -- even though Oracle has likely not violated the discrimination laws legislated by Congress. In 1977, the DoL/OFCCP unlawfully fabricated their own rules that empowered them to “institute administrative enforcement proceedings” in which it could unilaterally impose massive compensatory damages awards and broad injunctive relief upon whomever they perceive to have violated the rules of their empire pursuant to 41 C.F.R. § 60-1.26(a)(2).  The OFFCP ignores Congress and bypasses the courts because they have ordained for themselves the power to mete out justice through their own in-house judges. Thus, the OFCCP erects a shadow governmental empire, consolidating power stolen from the other branches of the government. Remember, these claims always arise from the context of a contractual relationship with the government.  

Oracle has fought back in an effort to strike a blow for liberty and the rule of law. Oracle understands through experience that their chances of getting justice in the DOL are between slim and none, and slim just left town. Oracle filed a lawsuit against the OFCCP/DOL alleging the OFCCP house rules court system is an unconstitutional violation of the separation of powers, which of course, it is. In a Kafkaesque grotesquerie, however, the Department of Justice is defending the DoL and advancing the Obama-era objectives of crippling regulation and oppressive socialism without legal mandate. The Swamp gets deeper, as do the self-inflicted wounds of the Trump administration.

The solution is simple.

The administration must use its powers to govern. These OFCCP lawsuits must be dismissed. American tax dollars should not be spent defending the DOL and its unconstitutional, anti-business policies.

W. Bruce DelValle is a constitutional law, technology law, and international law litigator and founding member of the Washington, D.C. litigation firm Fein & DelValle PLLC. He is a native Texan who grew up on the Gulf Coast of Florida, graduated from Penn State University and worked as a nuclear power engineer prior to graduating cum laude from Washington and Lee University School of Law.