Header Image
Harold M Busch

Harold M. Busch, Ed.M.

Vice President of
Government Affairs
SHARE:
Facebook Twitter Linkedin
Harold M. Busch is the Vice President of Government Affairs at DCI Consulting Group, Inc. He provides consulting services to employers with a specific emphasis in government relations, affirmative action plan development and implementation and comprehensive self-audits to prepare contractors for Office of Federal Contract Compliance Program evaluations. Mr. Busch also provides strategic advice to contractors during ongoing OFCCP compliance evaluations.

Mr. Busch also is the Executive Director for The Center for Corporate Equality (CCE), a national nonprofit employer association based in Washington, D.C. dedicated to creating workplaces free from bias and unlawful discrimination.

Mr. Busch was employed by the federal government for more than thirty years, serving more than ten (10) years in the Senior Executive Service level. During his career he received numerous achievement awards and commendations before retiring in 2005. For more than ten years, he was the Director of the Division of Program Operations with the OFCCP’s national office in Washington, D.C. Mr. Busch also served in several other executive positions with the Agency, including the Acting Deputy Assistant Secretary and Acting Deputy Director for the OFCCP in which he was responsible for planning, directing and coordinating enforcement operations across the U.S. He also served as the Acting Regional Director of the OFCCP’s Northeast Region for two years prior to his retirement.

Mr. Busch lectures on EEO law at Cornell University’s New York State School of Industrial and Labor Relations in New York City, where he has trained hundreds of human resource professionals and EEO investigators from government and private industry. He speaks extensively to employer and industry groups on EEO and affirmative action issues.

Mr. Busch has an Ed.M. degree from the Rutgers University Graduate School of Education in New Jersey, where he also received his B.A. degree.

Harold M Busch ’s Recent Posts

At the time this blog was written, the federal government has been closed for close to two weeks. In an earlier blog DCI staff suggested that federal contractors take a “business as usual” motto when it comes to OFCCP compliance. As many of you know, this isn’t the first time the government has shut down. Harold M. Busch was at OFCCP’s national office during the shutdowns that occurred in 1995-1996 during the Clinton administration. The 1995 shutdown resulted from a conflict between Democratic President Bill Clinton and the Republican-controlled Congress over federal funding levels with a focus on several major programs, including Medicare, education, the environment, and public health. The shutdown occurred after President Clinton vetoed the spending bill sent to him by Congress, resulting in placing non-essential federal government employees on furlough and suspending non-essential government services. Technically there were two shutdowns, the first on November 14 through November 19, 1995 and the second December 16, 1995 to January 6, 1996. Harold shares his take on those shutdowns and considers implications for OFCCP.

Harold M. Busch speaks about the Shutdownby Harold M. Busch, Vice President, Government Relations, DCI Consulting Group [1]

Before I discuss what happened almost 17 years ago, let’s discuss how the contractor community should be responding to the current situation. As mentioned in the previous blog, Contractors should continue to adopt a “Business as usual” motto. In a nutshell, all timelines, timeframes and due dates for any type of submission should be adhered to, even if you have questions on their content or want extensions. The government being shutdown does not relieve contractors of their obligations. Once OFCCP returns to work it may grant individual requests for extensions or even postpone or close some evaluations that have not actually commenced prior to the shutdown. However, it is my experience and professional opinion that each request or scenario will be treated on a case-by-case basis. Additionally, failure to submit documents (e.g., AAP’s, responses to show causes, additional data) or information on a timely basis could result in the Agency initiating or recommending enforcement action.

Obviously, on-site evaluations or scheduled meetings with OFCCP staff that were to occur during the shutdown will have to be rescheduled. As will be discussed in a little more depth later, OFCCP staff will have to spend most of their initial time back at work prioritizing what has to be done, accounting for submissions and missed appointments and rescheduling these events. Believe me, this is a tremendously time consuming task and depending how long the shutdown lasts the amount of time to become fully operationally will be multiple times the days of the actual shutdown.

Now let’s focus on the prior shutdowns while thinking about what may occur this time. I was the Director of Program Operations of the National Office of OFCCP during the 1995-1996 shutdowns and a government manager during all prior shutdowns. We summarize previous shutdowns via a series of questions below.

What happened during the government shutdown 17 years ago?

Although the shutdowns were based on differences between political parties, the political atmosphere was very different than the way it is now. Each of the Departments of the Federal government went through the same process, as done this time and identified essential employees who would be required to report to work even without pay or promise of pay. Similar to the present shutdown, OFCCP, like most of the government, had only a skeleton staff working in the National Office and the Regions.

Did the OFCCP shutdown?

Yes, it did shutdown in a similar manner as what is happening today. Essential employees were identified within each region. The career people and political employees within OFCCP were kept on board.

 
What were the expectations for contractors?The relationship between contractors and the OFCCP was much less antagonistic in the 1990s. Although the Agency was clearly focused on finding systemic discrimination, OFCCP staff was comprised and led by senior career employee management, nationally, regionally and locally, that had long term experience with the contractor community. The marching orders from the very top, including the White House was to be “flexible, fair and firm.” Contractors were still expected to meet timelines and timeframes, but when staff returned issues like extensions and rescheduling were done in a business friendly atmosphere. It was this relationship that allowed the return to work to be relatively smooth, and I am not sure if the current circumstances will allow for this.

Were audits due, even if nobody from the OFCCP was there to receive the audit package via mail?

Yes, they were due then and that is the case now. It was ‘business as usual’ for the contractor community. As mentioned above, the Clinton administration attempted to reduce the harmful effects of the shutdown. Also, 17 years ago, OFCCP was told to not be a bureaucrat and was expected to work with the contractors if they show good faith. Government staff, including DOL and OFCCP, were made aware that there would be potential problems during and after the shutdown and that they were expected to be sensitive and avoid inflating them. The situation this time may be more complicated than it was 17 years ago.Were follow-up data requests due to the OFCCP?

Yes, every request was due as per the timeline established prior to the shutdown. OFCCP had date stamped submissions upon receipt even during the shutdown.
Was the OFCCP flexible with contractors regarding due dates during the shutdown period?
During the shutdown period there was no contact with OFCCP staff so there was no “flexibility” on due dates while in shutdown mode. However, when the shutdown was over the OFCCP was flexible on a case-by-case basis. As mentioned previously, OFCCP closed some reviews, gave some extensions and rescheduled on-sites that could not be performed. It pays for contractors to meet their timelines and timeframes; those that did could be treated with the most flexibility. The first thing that was done after the shutdown was that executives and management evaluated every task and pending action, and considered what should be continued and what should be eliminated or delayed. The key was to prioritize the activities to aid a smoother recovery, focusing on cases with significant findings and that OFCCP had made substantial investments in prior to the shutdown.
How long will it take OFCCP to get back up and running and what other consequences can you think of?

A longer term government shutdown is complex and it could potentially take much more time and effort to get back up and running than it did to shut down. Many due dates will be missed, there may be material that has not been looked at, government employees may be angry due to the shutdown. All of these factors could affect the recovery process. Again, the longer the government is closed the longer it will take to recover.

In summation, the present shutdown has occurred during a different time for federal employees and OFCCP relative to the shutdowns of the 1990s. All of the factors listed above potentially may have an indirect impact on the government return to work, as well as how the contractors will be treated and the length of time it will take for OFCCP to return to “normalcy.”

[1] Special Thanks to Vinaya Sakpal, who is an Intern at DCI Consulting Group, for help with this blog.

CONTINUE READING
SHARE
Facebook Twitter Linkedin

by Harold M. Busch, Vice President – Government Relations – DCI Consulting

For those that don’t know me, I am a retired Member of the Senior Executive Service of the federal government, where I served as the Acting Director and Deputy Director of OFCCP and as the National Director of Operations and Acting Regional Director of OFCCP from 1995-2005. I was asked to provide my general reactions to the House subcommittee hearings on OFCCP held April 18, 2012. In watching the hearings unfold, I couldn’t help but think about a similar Congressional hearing on OFCCP that occurred in 1996. I was with the agency during this hearing and actually participated in it.


First, I want to focus on the April 2012 hearing. This hearing was attended by seven subcommittee members, including the Chair of the subcommittee Congressmen Roe (R), one other Republican member and five Democrat members.  Four witnesses testified; one witness supported the OFCCP and the other 3 were critical of the Agency, focusing on recent proposed regulations.  Interestingly, OFCCP was not invited to participate in the hearing and therefore did not testify or answer questions. In fact, from what I can tell, no one from the agency was even there. This was very different from what happened in 1996; more on that later. Each of the witnesses had 5 minutes to testify, and then each of the subcommittee members were given time to ask questions about the testimony.


In reviewing the webcast and Blog on the hearing, it is apparent the Subcommittee member attendance was poor. In fact, the “OFCCP friendly” members clearly outnumbered those critical or opposing the Agency’s proposed regulations or enforcement objectives. It became obvious that the spirit behind the proposed regulations under scrutiny (e.g., strengthening EEO/AA for protected veterans and persons with disabilities) is something that even Republicans and Democrats can agree on. What is up for debate are the specific proposals under review, but evaluating those takes an enormous amount of time and effort. Based on subcommittee member attendance and representation, OFCCP enforcement and proposed regulations do not appear to be very controversial.  


It is interesting to compare the 2012 hearing to the subcommittee hearing in 1996. That hearing was well attended by almost all of the subcommittee members. What is also interesting is that the 1996 hearing was orchestrated and organized by Congressmen McConnell and Fawell, and was advertised as a broad referendum on both Affirmative Action and OFCCP. Subcommittee members from the Democratic Party attended to defend the agency, witnesses on both sides testified and the Agency gave testimony and answered questions as well.


The atmosphere in 1996 was far from cordial. During this hearing the agency was attacked on several fronts both by the Republican subcommittee members as well as a former director of the Agency. This hearing was well-publicized and well attended. The purpose of the meeting in the eyes of the Republican subcommittee members was to challenge (1) the existence and purpose of the Agency, (2) its operating procedures and quality of OFCCP performance, (3) proposed rulemaking prior to their issuance and (4) affirmative action in general.


Congressmen Fawell and McConnell were in the process of recommending action to either eliminate the Agency, consolidate it with EEOC or make it an “educational compliance assistance Agency” with no enforcement powers.  OFCCP attended the hearing to defend its very existence and proposed new initiatives to fight systemic discrimination in pay. 


It was telling that the 2012 hearing was better attended by Democratic subcommittee members who were very supportive of OFCCP.  The topics discussed were also “safe” areas regarding Veterans and Individuals with Disabilities.  Both the democratic subcommittee members and the witness from the Women’s Law Center focused on reestablishing the importance of EEO and AA, regardless of what burden record keeping, audits or reporting may impose.


The employment and political atmosphere surrounding the different time periods is important to mention.  In 1996, returning Veterans had one of the lowest unemployment rates of any of the protected groups and the economy was in the midst of an upswing.  Obviously current economic conditions are very different. However, an interesting similarity may be drawn between the two time periods in regard to anti-affirmative action issues.  In 1996 there was a movement not only by the McConnell-Fawell Group but in many states throughout the country. For example, states like California, Florida and others were pushing agendas and referendums to repeal affirmative action and anti-discrimination statues. In 2012, it is my opinion that the Tea Party political leaders and supporters reflect a similar sentiment. Yet the economic conditions of today push the controversy to the specific burdens of proposed regulatory change instead of toward broader philosophical issues. It is also worth noting that President Obama is a Democrat who has prioritized EEO issues.  


I think the above factors played a role in the fact that no one at the hearing argued to get rid of OFCCP or affirmative action. Witnesses Norris, Bottenfield and Horvitz mainly criticized the cost and burden that the Agency imposed on contractors. In 1996 the Agency was under attack due to fear that it was going to “raise the bar” and become more aggressive and enforcement-oriented. Initiatives like pay equity enforcement, electronic recordkeeping, systemic discrimination guidance, electronic reporting of EEO and desk audit results all were being discussed by the Agency in 1996. Obviously OFCCP survived the 1996 hearings in spite of the controversy, and many of the above initiatives were eventually implemented, although some were dismantled during the Bush administration. 


The 1996 hearing was heated. The 2012 hearing was not. For this reason I think the 2012 hearing is not a major event in OFCCP history.  Will there be further hearings in 2012? I don’t think so. The first hearing did not seem to gain momentum or stir controversy in the subcommittee.


Where does OFCCP go from here?  If Obama is re-elected in November, clearly OFCCP will continue to go in the direction it has been moving toward over the last two years. The agency may possibly even become more aggressive.  More regulatory change, new initiatives and increased focus on discrimination in pay are likely to happen. The number of new regulations that are implemented may equal what was accomplished under President Clinton in the late 1990s.   


Obviously, if Obama is not re-elected the same scenario that occurred when Bush took office after Clinton could occur. A Republican Administration may attempt to dismantle OFCCP or at least put the agency in a holding pattern. President Bush had an advantage in slowing the agency down; the Secretary of Labor (Chao) was the wife of Congressman Mitch McConnell.  The two of them were both strong critics of OFCCP and affirmative action. As soon as Secretary Chao took charge of the Agency, she stated that the “wage gap” found between men and women “was not the result of discrimination”. For this reason, there was little enforcement of pay equity under the Bush administration. In addition, the Agency stopped publicly using the term “affirmative action” and instead used the phrase “equal opportunity efforts.” Obviously the election will be a critical event in OFCCP history in 2013 and beyond….stay tuned.


CONTINUE READING
SHARE
Facebook Twitter Linkedin

News

Really, I Come Here for the Food: Sex as a BFOQ for Restaurant Servers

Michael Aamodt, Principal Consultant at DCI Consulting Group, wrote an article featured in SIOP’s TIP publication, January 2017.

Recent Blog Posts

Fiscal Year 2018 Budget Proposes Merger of OFCCP and EEOC

The Department of Labor’s Fiscal Year 2018 (FY2018) budget proposal was released today, May 23, 2017.  The budget outlines the initiatives and priorities of the new administration, and as predicted by DCI, recommends merging the Office of Federal Contract Compliance Programs (OFCCP) and Equal Employment Opportunity Commission (EEOC) by the end of FY2018.

The proposed budget indicates that the consolidation will provide efficiencies and oversight.  Additionally, the proposed budget allots $88 million for OFCCP, a decrease of $17.3 million from Fiscal Year 2017.  The main cut to the budget appears to be headcount, with a proposed 440 full-time equivalent (FTE) headcount, a reduction from 571 FTEs.  Some other interesting items that have

Read More