Wednesday, November 25, 2009

GI Jobs Top 100 Military Friendly Employers

GI Jobs is an online program designed to help people find jobs once they leave the military. Since America's Job Bank ceased to exist two years ago, many online job programs have emerged to assist both employers and jobseekers in their respective employment efforts. GI Jobs has emerged as an excellent resource for employers to not only reach out to prospective recruits but to assist with Federal contract compliance.

See the links below to the G.I. Jobs website and their Top 100 Military Employers list.

Link to text of current CSAL

The OFCCP has posted on their website that the Corporate Scheduling Announcement Letter (CSAL) is going out. Federal contractors should advise their corporate office to be on the lookout for a letter from the Department of Labor that is addressed to the CEO.

Enclosed is a link to the text of the letter:

Tuesday, November 24, 2009

EEO Posting Revision

By Desiree Throckmorton

Effective November 21, 2009 employers are required to implement a revised “Equal Employment Opportunity is the Law” poster. The poster was updated to include information regarding the Genetic Information Nondiscrimination Act of 2008 and includes other updates from the Department of Labor.

The section below was added to the Americans with Disabilities Act of 1990,

Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

The link below has information on how to obtain the updated poster.

The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

Wednesday, November 18, 2009

Corporate Scheduling Letter (CSAL) Back on the Radar

In a surprise “about-face,” the OFCCP has announced that the Corporate Scheduling Announcement Letter (CSAL) will, in fact, be distributed for the upcoming OFCCP fiscal year which ends in September, 2010. There was much discussion in the industry that the CSAL was being removed from the agenda for 2009, largely due to a statement from the national office of the OFCCP itself in October of this year that it would not be issuing the letter.

However, on Wednesday, November 18th, the chairs of the respective ILG groups around the country received an e-mail from the Chair of the NILG Constituency Information Committee, stating that the head of the OFCCP, Patricia Shiu, has confirmed that the CSAL will continue through this fiscal year.

Now that the CSAL is already more than a month overdue, there is no indication as to when exactly a new list will be released other than to say “soon”. It will be very interesting to see if the previous release of the letter will continue to serve as the audit list for 2009 or if a new list will be generated. While knowing who will be audited in the coming fiscal year would be of great benefit to contractors, BCG is very curious to see if the new desk-audit list will be significantly expanded with a large number of sites being identified for audit. If the ARRA initiative is any indication of the direction of the new OFCCP administration, contractors will be in for a very busy new year.

Stay tuned,


Monday, November 9, 2009

Minnesota Affirmative Action Compliance Council Meeting

By Christine Anthony

On November 2, 2009, Sandra Zeigler, Regional Director of the Mid-West Region of the Office of Federal Contract Compliance Program (OFCCP) addressed the Minnesota Affirmative Action Compliance Council (AACC), a recognized Industry Liaison Group (ILG). Ziegler was recently briefed by the National OFCCP office and she shared with the group the direction that the Regional Directors were asked to take their teams. Organizationally, OFCCP has seen some changes. Of course, there are new appointments within the Agency; Patricia A. Shiu has been named the Director of OFCCP. Ms. Shiu will now be reporting directly to the Secretary of Labor as the Employment Standards Administration has been dissolved. This will result in more direct White House oversight and, as mentioned above, more ambitious goals for the Agency. The Agency has also been tasked to increase their outreach to both contractors and the community organizations supporting contractors. OFCCP has also heard the contractors’ concerns over the outdated Federal Contractor Compliance Manual (FCCM) and has put updating this document on their to-do list. However, this task had not been initiated at the time of Zeigler’s address to the AACC.

Not all changes under the new Administration have been put on a to-do list. We know that OFCCP is increasing their employee count with the hope of raising it back to the level it was in 2001. The regions are currently busy training new Compliance Officers by using live cases which is resulting in more open reviews at the local offices. Ziegler predicts that this will result in more on-site visits by OFCCP as more contractors are being reviewed. Additionally, the national office has raised the bar for the regions and expects them to again recover record-breaking awards for those who may have been victims of employment discrimination. OFCCP is expected to continue to address systemic discrimination; however, non-systemic issues will be investigated as well. The Agency will no longer focus on impacted groups of 10 or more employees or applicants, they will pursue an impact of one or more. While OFCCP plans to continue Active Case Management under the Obama Administration to help guide the increase in audit activity, there has not been a formal announcement as to the fate of the Corporate Scheduling Announcement Letter (CSAL). There has been strong speculation across the industry that the CSAL program will not continue, and Zeigler did confirm that audits are currently being scheduled off the spring scheduling notices regions received from the National office and that they have not received a new scheduling list as of her address to the AACC. Also, expect to continue to see audits pertaining to the American Recovery and Reinvestment Act (ARRA) for the next two years. OFCCP has received additional funding to hire Compliance Officers specifically for ARRA investigations. Due to the large increase in compliance reviews, Zeigler suggests that we may see in increase in the number of contractors nominated for the EVE and G-FIVE awards as more on-site visits are sure to highlight the strengths of compliant contractors.

Biddle Consulting Group will continue to update this blog as the initiatives of the new Administration unfold.

Wednesday, October 14, 2009

New ARRA Audit activity and a Warning for Federal Contractors

The OFCCP has hit the ground running with their new American Recovery and Reinvestment Act of 2009 (ARRA) audit efforts. Many contractors are now receiving audit letters with specific needs under the ARRA initiative. Construction contractors are being asked for significant material under the ARRA audit format and Service and Supply contractors are receiving new letters as well. One difference we are seeing is that the Service and Supply contractors are receiving a standard desk audit letter with an additional letter stating that they were selected under the ARRA initiative. The desk audit letter for Service and Supply does not suggest that the OFCCP will conduct an automatic on-site review which conflicts with the defined structure of the ARRA plan so we will post updates as the audits progress.

An additional measure BCG has seen the OFCCP take is that the Compliance Officers are taking an extremely aggressive approach to collecting additional data/information during the audit. We are seeing OFCCP ask for responses to data requests within the same day (by Close of Business was the term used) and threatening to turn a desk audit into an on-site audit if the contractor does not comply. We have also seen OFCCP inform a contractor that the ARRA driven on-site audit would commence within less than one weeks notice. It is the belief of the BCG staff that these demands are related to the comments heard at National Industry Liaison Group where OFCCP stated that they were not pleased with the amount of resistance they were seeing to additional information requests. Also, OFCCP has a mandate to complete 450 ARRA audits by September 30, 2010.

Please see recent Blog posts and register for our free webinars at for all of the latest information on ARRA audits and OFCCP initiatives.

BCG Releasing All-New Compensation Analysis Software


Biddle Consulting Group, Inc.
Introduces New Compensation Analysis Software

Folsom, CA: Coming in November 2009, Biddle Consulting Group, Inc. (BCG) is releasing the all-new COMPARE 2.0, a powerful software application designed to assist Federal contractors and proactive organizations in conducting multiple regression analysis of their compensation data.

For over 30 years, BCG has been the industry leader in EEO software and service solutions for Federal contractors and many other organizations throughout the country. Having worked on hundreds of compensation analysis projects ranging from EEO litigation work to Office of Federal Contract Compliance Programs (OFCCP) audits, the BCG consulting team is uniquely qualified to produce an analytical tool that generates analyses that would be appropriate for both Title VII litigation and the OFCCP Guidelines.

COMPARE 2.0 is the most complete compensation analysis application on the market, specifically designed for basic and advanced analyses. The software features many functions and support options including:

• Training available at
• Software includes new companion book on Compensation written by BCG Ph.D.s
• Conduct advanced multiple regression analyses
• Calculate employer liability
• Run high volume analyses at the click of a button
• Customize thresholds for significance
• Simple data file preparation
• Customizable report output
• Run model diagnostics and correlations
• View warnings where analyses may violate assumptions

Biddle Consulting Group, Inc. (BCG) Background

Biddle Consulting Group, Inc. (BCG) specializes in Equal Employment Opportunity (EEO) consulting, litigation support, personnel testing software development, and Affirmative Action Plan (AAP) technical support and software. Since 1974 (when known under the name Biddle & Associates), BCG has worked with over 1,000 employers in these areas, as well as providing litigation support as consultants or experts in over 200 EEO state, federal, and circuit court of appeal cases involving statistics and/or job-relatedness (test validity) analyses.

Thursday, October 8, 2009

OFCCP Game Plan for ARRA Audits

As mentioned in a previous Blog, the OFCCP has rolled out their new ARRA audit letters and contractors are feeling the heat, especially construction contractors. The OFCCP is sending out the new audit letters with additional requirements that affect construction contractors and their subcontractors.

It can be helpful to know what the OFCCP's strategy is, and fortunately they have provided some information on their website under the following link:

A few highlights:

1. Conduct 450 ARRA driven reviews
2. Only 90 of which will be service and supply
3. 10% of the audits will be for new contractors
4. 360 of the 450 or 80% of the audits will be for construction contractors
5. Completion of all audits by September, 30, 2010
6. Conduct 150 reviews each quarter starting in Q3, 2009
7. OFCCP will host 120 compliance events including seminars and webinars
8. Prior to an award of $10 million or more, OFCCP will need to receive pre-award clearance request from the potential contractor
9. OFCCP will use an internal monitoring system to ensure that audit goals are met
10. Lorenzo Harrison of the national OFCCP office is the lead for monitoring the ARRA audit nationwide directive

Biddle Consulting Group is actively involved in supporting new ARRA driven audits. We will post information on the OFCCPs activities as they progress.

Wednesday, September 30, 2009


Due to the high volume of calls, the VETS-100 helpdesk’s telephone lines and email boxes are overloaded. Federal contractors who can’t reach the help desk for assistance by the September 30th, 2009 deadline have until October 31, 2009 to file their VETS-100 or VETS-100A Report(s). To reach the Vets-100/Vets-100a help desk, contractors should email Please retain documentation of the granted extension (automatically generated email) for your records.

New ARRA audit letters have arrived

The new OFCCP audit letters under the American Recovery and Reinvestment Act of 2009 (ARRA) initiative have begun landing on the desks of contractors around the country. These letters are not your typical desk audit as they are giving notice to construction contractors that not only is the OFCCP is coming on-site, but they are only providing one-weeks notice.

A few items to pay attention to:

- Very short notice of an on-site visit
- The requirements of the letter are different than a typical desk audit
- The evaluation covers the past 6-months of activity
- There is no OMB number associated with the letter meaning it has not yet been approved by the Office of Management and Budget
- The letter can be directed to the President/CEO of the company

BCG also expects the standard Corporate Scheduling Announcement Letter (CSAL) and a new batch of desk-audit letters to be sent out in October of 2009. It is possible that desk-audits will be scaled back as much of OFCCP's current resources are focusing on ARRA audits.

Are you a Federal contractor?

People often ask us, "How can I be sure that I am a Federal contractor?"

It has always been something of a mystery to many organizations that have no idea where their contract is or in some cases which part of their business falls under the Executive Order.

BCG recommends that companies take a look at the Federal Contractor Compliance Advisor found under the following website:

Companies may fall under the contractor, subcontractor or construction contractor obligations. This site will also help single entities that are part of a larger organization determine if they fall under the Executive Order even if they are not directly associated with the fulfillment of a contract.

Friday, September 25, 2009

American Recovery and Reinvestment Act (ARRA) Audits

By Mike Bostick

Under the American Recovery and Reinvestment Act (ARRA), companies that receive bailout money from the government are now subject to the same guidelines as federal contractors, which could make them subject to an evaluation of their EEO activities to ensure compliance. A large portion of the ARRA funding is going to the construction industry for new construction projects. Please visit for more information. Construction companies face the same procedures as non-construction companies. A certified letter is sent to the company informing them of the compliance evaluation in regards to having received American Recovery and Reinvestment Act funding for a particular project.

Traditionally, onsite audits are only conducted if OFCCP suspects further investigation is necessary based on their preliminary review of a federal contractors’ AAP; onsite audits are also conducted on every 50th compliance evaluation. Active Case Management (ACM), which is a procedure used by the OFCCP to determine if there is enough cause to warrant the continuation of the audit, does not apply to ARRA funded companies under an audit. Companies who receive bailout money will be subject to a full compliance evaluation that will include an onsite visit by a compliance officer. Companies are required to present the compliance officer (CO) with a sufficient working area along with an authorized official that is available to answer any questions or to discuss company policies. The ARRA construction letter also includes an attachment labeled Documentation of Contractor’s Compliance Efforts. This is a list of all the records and information that will need to be available for the CO upon request.

Please see the following link for a sample construction audit letter: Also available are the frequently asked questions about ARRA, ACM, and other audit procedures:

Friday, September 18, 2009

Survey Result with regard to Applicant Tracking Systems (ATS)

By Nina Le-Tse

BCG Institute for Workforce Development (BCGi) sponsored a survey to compile the perceived success of diversity initiatives across organizations of all sizes. As a model for this survey, BCGi used the recommendations outlined in the articles written by Dan Biddle, PhD and Patrick Nooren, PhD, titled, Diversifying Your Organization: How to Actually Make it Happen in EEO Insight. The survey was circulated in January 2009.

One of the questions asked whether respondents evaluated their Applicant Tracking Systems (ATS) to ensure that it is capable of collecting/retaining the required EEO information. The results indicated that a vast majority of contractors, regardless of company size, claim to have evaluated their ATS to ensure it is capable of collecting proper information to address Equal Employment Opportunity (EEO) data requirements (e.g., disposition codes). ). As a consultant who have been in this field for more than six (6) years, these results are surprising because in the event of an audit, most contractors are unable to identify the step where each applicant fell out of the selection process (e.g., did not meet minimum qualifications, passed or failed phone interview, declined offer, etc.). Tracking applicants through the selection process is not an easy task. The OFCCP is aware of the difficulty of collecting and retaining proper applicant data, and this unfortunately makes contractors vulnerable to recordkeeping violations during audits. At the 2009 National Industry Liaison Group Conference in Atlanta, Georgia, the OFCCP noted that recordkeeping is still the number one violation issued during compliance reviews. In fact, during the 2008 fiscal year, Office of Federal Contractor Compliance Programs (OFCCP) collected $67,510,982 in back pay, salary, and benefits from federal contractors for systemic discrimination. As always, the OFCCP can rely on an “adverse inference” if proper applicant information is not collected or retained Given the current focus of the OFCCP and other federal enforcement agencies on adverse impact in hiring, proper design of applicant tracking systems is vital.
It is an unfortunate situation when employers are unable to defend themselves in the event of an audit or litigation simply because they lack the data to properly do so. If the goal is to create a diversified workforce, then employers need reliable reports that can direct their efforts towards meeting this goal. Outside using the appropriate metrics to create meaningful reports, correct and reliable data should be the first and foremost in any employer’s agenda. It’s not just about the right statistical process; it’s about the right data.

Below are some of the recommendations that will help employers properly collect and retain applicant data and consequently, impact their diversity initiatives:
• Configure your applicant tracking system to collect and retain all necessary information.
• Configure your applicant tracking system to collect and retain a history of disposition codes for each applicant, or
o Develop disposition codes to identify where each applicant is within the process and where each applicant has fallen out and why
• Implement a requisition-based system to more easily link applicants to hires
• Train on the proper usage of the system and regularly evaluate usage of the system
• If at all possible, funnel the steps in the recruitment process to force users of the ATS to follow the designated steps and eliminate manual decisions and selections wherever possible
• Proactively run adverse impact analyses (at least on the high-volume positions) and inform those with the ability to affect change
• Validate all steps in the process

To view the full results of the survey as well as the article, Diversifying Your Organization: How to Actually Make it Happen, please visit

Thursday, September 10, 2009

E-Verify Goes Live

The E-Verify program is now active as of September 8, 2009.

U.S. District Court Judge Alexander Williams, Jr., of Maryland, rejected an 11th-hour-effort last week by the U.S. Chamber of Commerce and other business groups to delay the mandate while a federal appeal is pending.

Under the mandate, a clause requiring contractors and subcontractors to use the government's E-Verify system will be written into every new or renewed government contract started on Tuesday, September 8th. It will also be written into every new work order issued under existing contracts, officials say. It will be up to government agencies that issue the contracts to enforce the mandate.

Once a contractor is operating under the new clause, it will have to check the legal eligibility of every employee working on a government project through a secure website. The E-Verify system compares data entered by employers with records maintained in Social Security Administration and immigration databases.

The E-Verify website is here:

Also, on the E-Verify website there is a webinar series that contractors can sign up for:

And here are the E-Verify FAQ's:

Wednesday, September 2, 2009

Job Group Assignment Can Have a Major Impact on Analysis Results

Job Group Assignment Can Have a Major Impact on Analysis Results
by Dao Vang, EEO Analyst

In the EEO industry there are many different types of companies, and with such diverse organizations it is expected that the methods they employ to approach affirmative action can be very different. While many place great importance on the creation and implementation of their Affirmative Action Plans, it is equally common for AAP development to become an annual exercise that has little impact on the organization. Unfortunately, some contractors only take their AAP and its corresponding obligations seriously when faced with an OFCCP audit.

While a lack of interest in creating and implementing proper AAPs has many drawbacks, one major issue is the creation of defensible job groups. We will call upon an example where a company (let’s call them Company XYZ) had been using the same AAP job groups for years. Company XYZ was aware that their AAP job groups needed significant revisions but it had yet to become a priority. Although as consultants we had pleaded with Company XYZ to work with us on redefining the job groups, and the client intended to make the necessary changes, they unfortunately did not make the time or provide the resources to make reassigning jobs a priority. As a result the project remained on the back burner for too long. The same concern had been revisited and mentioned by BCG each year, however, the restructuring of the job groups remained a “not so important task” from the client’s point of view. Not surprisingly, the excuses continued and the convenience of not making any changes won out for several years. Therefore, Company XYZ knowingly continued to use flawed job groups for their AAPs.

Then along came the day when Company XYZ received a 30-day scheduling letter from the OFCCP. Naturally, several of their job groups had adverse impact in hiring against females and/or minorities and lo-and-behold the overhaul of job group assignments suddenly became top priority. The rushed review confirmed two issues that the consultant already suspected: 1) some jobs were inappropriately grouped together (for example, technical and administrative professional jobs are in the same job group); and 2) there are job groups that could be split into more appropriate groups without sacrificing appropriate sample size.

Needless to say, when more appropriate job groups were created, the number of potential problem areas dropped dramatically. Unfortunately, the lesson learned was that the undertaking of job reassignments during a desk audit caused tremendous stress for everyone. In order to accommodate the newly created (but more appropriate) job groups, the current AAP had to be re-created, the previous year’s availability and placement goals reports were also re-created, and new adverse impact analyses had to be conducted --- all within the 30-day allotted period for the AAP submission.

From the consultant’s point of view, AAPs should be used as a diagnostic tool to determine whether potential problem areas exist in an organization. It should be obvious that plan results are only as good as the job title to job group assignments that they are based upon. Having pointed that out, here is some advice when creating AAP job groups:

o The jobs in each job group should have similar content, opportunities, wages, level, and responsibilities
o Job Groups should not reflect more than one EEO Category
o There is no minimum sample size requirement for each job group. However, there should be enough individuals in each job group to yield meaningful results
o For contractors with 150 employees or less, the regulations state that they can use EE0-1 Categories to as job groups (
o Creating and dividing larger job groups or EEO categories into sub job groups are common. Consider creating sub job group by skill level or/and specialty (e.g., lower level managers, mid level managers, and upper level managers).

If you have any questions about creating job groups please e-mail BCG at

Friday, August 28, 2009

Utilizing important resources for EEO/AA Compliance

For many years, Federal contractors had limited avenues for getting answers to detailed questions associated with Affirmative Action and EEO compliance. While contractors could take the time to call the OFCCP or EEOC directly, it could be cumbersome to chase down a direct answer to any question that went beyond the text in the regulations. Contractors would also call on the various consultants and attorneys in the industry to get their interpretation of the regulations, but even with their vast expertise, those opinions might not be consistent from group to group and more importantly, they may not be in sync with the governments interpretation.

Having talked about how things used to be, BCG wants to make sure that contractors and proactive companies across the country are aware of new channels of information that are now available to them. One very important area of information that is now available to the public is the Office of Federal Contractor Compliance Programs (OFCCP) website. While that may seem like common knowledge because everyone has a website and the government may not be known for providing real insight into their expectations, the current OFCCP website has evolved into a fountain of useful and in many cases even current information. While any website is far from perfect, there are certain areas of the current OFCCP site that are very useful and should be bookmarked and read by everyone from contractors to consultants. BCG will be providing a series of blogs to identify certain areas of the website that people should pay attention to.

Today's section is the Frequently Asked Questions (FAQ's) portion of the site. With the dramatic amount of change that has occurred in the OFCCP and Affirmative Action Planning requirements in the last 10 years comes a tremendous number of questions. The OFCCP has posted a detailed FAQ site that contains answers to hundreds of questions from the most basic to the very advanced. The FAQ's are separated by topic and they provide in-depth answers to the following topics:

* ADA Amendments Act
* Corporate Scheduling Announcement Letter (CSAL)
* The Good-Faith Initiative for Veterans Employment (G-FIVE) Initiative
* Accessibility of Online Application Systems
* Electronic Recordkeeping Systems
* Jobs for Veterans Act (JVA)
* For Employees
* For Employers
* Compensation Standards
* Corporate Management Compliance Evaluation
* Federal Contractor Selection System (FCSS)
* Functional Affirmative Action Program (FAAP)
* Internet Applicant
* Jurisdiction
* Policy/Regulatory Issues

The OFCCP updates these questions periodically and BCG has found them to be an invaluable resource when assisting clients with understanding the governments expectations. Visitors can read answers to many of the most common questions and they can even search the lists for the specific answers they seek. While no single resource can answer every question and provide perfect answers, BCG highly recommends this site as a great place to start.

If you have questions about regulations or resources feel free to e-mail and we will try to help.

Thursday, August 27, 2009

BCGI Fall Webinar Schedule Released

BCG Institute for Workforce Development is excited to announce the Fall 2009 Free Webinar Series! Please see the invitations to five new sessions below and be sure to visit for the entire webinar catalog.

Fall 2009 Webinar Series:

Title: Compensation 101 for Federal Contractors - Preparing for OFCCP Changes in 2010
Date: Monday, September 21, 2009
Time: 11:00 AM - 12:30 PM PDT

Reserve your Webinar seat now at:

Title: Submitting your AAP for an OFCCP Desk Audit - (Do's and Don'ts)
Date: Wednesday, October 21, 2009
Time: 11:00 AM - 12:30 PM PDT

Space is limited.
Reserve your Webinar seat now at:

Title: Recordkeeping with a focus on Adverse Impact and Test Methodology in Today's OFCCP Audit Environment
Date: Thursday, November 12, 2009
Time: 11:00 AM - 12:30 PM PST

Space is limited.
Reserve your Webinar seat now at:

Title: Keeping up with the Changes in Requirements for Veterans and Individuals with Disabilities
Date: Tuesday, November 17, 2009
Time: 11:00 AM - 12:30 PM PST

Space is limited.
Reserve your Webinar seat now at:

Title: Understanding Basic Qualifications and their role in EEO Compliance
Date: Wednesday, December 9, 2009
Time: 11:00 AM - 12:30 PM PST

Space is limited.
Reserve your Webinar seat now at:

Friday, August 21, 2009

OFCCP Announces Record Settlement

The Office of Federal Contract Compliance Programs (OFCCP) announced another large settlement related to females and minority hiring. Once again it is related to the use of non-validated tests in high-volume entry-level positions. Look for this to be a recurring theme with the OFCCP over the next several years.

See below for the ESA news release:

Gerber Products Co. in Fort Smith, Ark., agrees to pay $900,000 to minorities and females for hiring discrimination

The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) announced Gerber Products Co. has agreed to settle findings of hiring discrimination against 1,912 rejected minority and female applicants for entry-level positions. The agreement settles the department's allegations that Gerber engaged in hiring discrimination against minority and female applicants for one year.

During a scheduled compliance evaluation of Gerber Products in Fort Smith, OFCCP investigators found the hiring disparity was in part caused by inconsistent selection procedures for entry-level positions. Additionally, OFCCP found that Gerber used pre-employment tests that negatively impacted minority applicants and determined that there was insufficient evidence of validity to support Gerber's use of the test. Gerber has discontinued its use of the test in the hiring process for entry-level positions. The company is headquartered in Florham Park, N.J.

Under the terms of the conciliation agreement, Gerber will not only pay 1,912 minority and female applicants $900,000 in back pay and interest, but will provide 61 entry-level positions, 11 of whom have already been hired. The company has also agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law and immediately correct any discriminatory practice. In addition, Gerber will ensure compliance with Executive Order 11246 recordkeeping requirements.

For more information, please visit:

Tuesday, August 18, 2009

OFCCP National Forum in September

The U.S. DEPARTMENT OF LABOR Office of Federal Contract Compliance Programs (OFCCP) is hosting a national conference in Alexandria, VA.

See details from the OFCCP web link below:

Good Jobs for Everyone

Wednesday, September 9, 2009 – Alexandria, VA
Holiday Inn - Alexandria Historic District
625 First St. Alexandria, VA 22314 • 703.548.6300 •


New Federal Supply & Service Contractors –What You Need to Know

Construction Contractors – 16 Steps to Affirmative Action Compliance

Federal Contracting & Procurement Officers –EEO and the FAR

Veterans’ Employment and the G-FIVE Initiative

Ricci and ADAAA legal updates



Contractor and agency requirements under Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

How to promote opportunities for veterans and disabled workers

How to promote nontraditional jobs for women and access for all workers

Compliance assistance and enforcement processes


Please email your name, title, organization, email address, telephone number to There is no fee for attending this conference, however, space is limited. You will receive a confirmation email accepting your registration.

Please select which workshops you would like to attend (select all that apply):

q New Federal Supply & Service Contractors - What You Need to Know
q Construction Contractors - 16 Steps to Affirmative Action Compliance
q Federal Contracting & Procurement Officers - EEO and the FAR
q Veterans’ Employment and the G-FIVE Initiative
q Ricci and ADAAA legal updates

Forum Registration

To register, please give us the following information:

First name
Last name
Address 1
Address 2
City, State Zip
Email address


For additional information regarding OFCCP, visit our website at or call the toll-free information helpline, available 8 a.m. to 5 p.m.

Eastern Time, 1-800-397-6251

We would prefer your registration by email to:

You may also fax this form to: 202-693-1304

You may mail this form to:

Conference Registration
U. S. Department of Labor - OFCCP
Room N-3422
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Please note any accommodations you may need to attend this program (be specific)

Wednesday, August 5, 2009

How Do Employers [Properly] Disposition Overqualified Applicants?

By Marife Ramos

A client once asked: “Can we disposition overqualified applicants early in the selection process as ‘Did not meet the requirements of the job due to experience’?” The client went on to point out that overqualified candidates, more often than not, will NOT be hired anyway. The client said recruiters know (not “think they know”) that hiring managers typically shy away from hiring overqualified candidates because they tend not to be a good “fit” for the job and eventually leave after a short stint to accept or look for greener pastures. Hence, the client would rather disposition these candidates early in the process and essentially, exclude them from the applicant pool.

Surely, most of us can understand this client’s point of view. From the practical stand point, why should an employer waste time, money, and effort on applicants whom they think will not be a good “fit” anyway? However, excluding these applicants from the selection process simply because they are “perceived” as overqualified can open up an employer to a possible discrimination charge(s) (age discrimination is one of the possibilities).

Here is some advice from the experts on how to properly weed out overqualified applicants who are really not committed on being serious contributors to your organization:

• Let the job seeker self select him/herself out of the process. For example, let them know early in the process the salary requirements; the duties, responsibilities and expectations of the job; the work schedules; etc.

• Develop “fit” profiles. Properly developed fit profiles are used all the time in hiring. Do not simply include questions, at the recruiter’s or hiring manager’s discretion, in a non-validated manner with a non-validated interpretation of the applicant’s responses.

o For example, recruiters or hiring managers can craft questions such as: "Knowing that the job pays so little as compared to your previous job, how can I be convinced that you will remain in this job for a reasonable amount of time?” "Give reasons why you think that this job will not bore you?” "Why should we select you for this job when others with less education and experience can do the job as well or maybe even better?" "Where do you see yourself in two to three years?" These questions, when properly validated, can help the recruiter assess the extent to which the candidate will match with job requirements.

• Reframe questions (and related disposition codes) away from the “overqualified” language to “fit” evaluation/profile questions.
Keep in mind that unless the overqualified applicants “self select themselves out” of the process, they should be considered as “applicants.” If they met the 4 prongs of the OFCCP’s “Definition of an Internet Applicant” they need to move through the selection process just like anybody else. Their records need to be kept for recordkeeping and adverse impact analysis purposes. Selection decisions for and/or against them have to be documented and kept. Besides, not all overqualified applicants will turn out to be unhappy and short-term employees. You might actually find a diamond in a rough, you never know…

Wednesday, July 29, 2009

OFCCP Announces New Director at National ILG

Patricia A. Shiu, vice president for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) has been appointed to a leadership position with the United States Department of Labor as the director of the Office of Federal Contract Compliance Programs (OFCCP). "Ms. Shiu has dedicated her twenty-five year career at the LAS-ELC to strengthening and enforcing the rights of low-wage workers and their families."

Patricia A. Shiu is Vice President of Programs at the Employment Law Center, a project of the Legal Aid Society of San Francisco. Ms. Shiu joined the Employment Law Center in 1983 where she focuses primarily on employment discrimination, including sex and race-based discrimination. She also represents workers in family and medical leave cases. Ms. Shiu is the Director of the Society’s Work and Family Project and advocated for the passage of California’s Family Rights Act and its regulations. Ms. Shiu was appointed to the Civil Rights Reviewing Authority for the Department of Education in 1993 by Secretary Richard Riley. She is a former member of the Executive Board of the National Employment Lawyers Association and served as one of its Vice Presidents. Ms. Shiu is a graduate of the University of San Francisco School of Law.

Wednesday, July 22, 2009

OFCCP flagging contractors who receive bailout money

There has been significant discussion around the country recently stating that contractors who receive bailout money from the Federal government will be subjected to additional scrutiny from the OFCCP. Additional scrutiny allegedly meaning more audits!

Note that it is expected that contractors who receive bailout money will be listed in the Federal Contractor Selection System (FCSS) for potential audits and the Pre-Award list on the OFCCP site is now identifying companies as having received or not received bailout money.

The OFCCP website offers the following statement on their website under:

Quote from the website:
"Implementing the American Recovery and Reinvestment Act of 2009 (ARRA):
Covered Federal contractors who receive ARRA funding must comply with Executive Order 11246, as amended (EO 11246); Section 503 of the Rehabilitation Act of 1973,as amended (Section 503); and the Vietnam Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA). OFCCP will conduct compliance evaluations and host compliance assistance events to ensure that federal contractors comply and are aware of their responsibilities under EO 11246, Section 503 and VEVRAA."

In addition, contractors who have recently undergone an FCSS audit (using the active case managment method) but have since received ARRA funds can then be subject to an ARRA audit after only 6 months (as opposed to the normal 24 month window). There is also not a limit on the number of open ARRA audits (they can have more than 25 current audits if the contractor has received ARRA funding).

Please visit OFCCP's website for more information:

Tuesday, July 21, 2009

BCG partners with Crawley Consulting to provide clients with sexual harassment and staff development training


Biddle Consulting Group, Inc. (BCG) has partnered with Crawley Consulting to provide clients with expert training in diversity and sexual harassment (California State Assembly Bill 1825) topic areas.

Because charges of sexual harassment can result from activities at the employment site, during work-related functions, to and from work and off site activities, it is imperative that all managers, supervisors and employees be exposed to this topic.


Full-day sexual harassment workshops cover:

• How to avoid liability in peer-to-peer as well as manager to subordinate sexual harassment
• How to appropriately respond to allegations that a “hostile environment” has been ignored
• How to appropriately respond to allegations of “same sex” sexual harassment, as well as “Quid Pro Quo” claims of sexual harassment and retaliation
• The most recent and relevant court rulings in these areas and their effects on the organization

An experienced civil rights attorney who has prosecuted and settled cases against public and private entities will explain what you need to know and what you must do to avoid liability.

• Understand the historical significance and definition of sexual harassment
• Understand possible bases for liability
• Respond appropriately to charges of workplace sexual harassment
• Distinguish between normal adult behavior and illegal harassment
• Plan strategies for eliminating illegal harassment
• Correctly counsel the alleged recipient, witnesses and the accused
• Minimize liability under Federal and State Law

Each workshop includes:

• Presentations by Pamela Y. Price and/or Vernon Crawley
• Workshop materials for each participant, including case problems from recent Federal and State Court decisions on discrimination in the workplace for managers and supervisors
• Follow up session to debrief top management on our analysis of participant evaluation forms



It is now state law that all California employers of 15 or more employees must provide sexual harassment prevention training beginning January 2006, to be repeated every two years. Under the regulations, all new supervisors, managers and lead workers must be provided the training within six months of their appointment.

The training must be provided by qualified individuals and include appropriate content to satisfy the requirement. Crawley Consulting’s workshop is AB 1825 Certified and presented by California Super Lawyer, Pamela Y. Price.


Pamela Y. Price is a leading civil litigator and heads the Oakland, California law firm of Price and Associates – A Professional Law Corporation. Ms. Price has been recognized nationally for her work on behalf of plaintiffs seeking relief from sexual and other forms of harassment in the workplace and school settings.

A graduate of Yale University and the University of California at Berkeley’s Boalt Hall School of Law, she has earned degrees in Political Science, Jurisprudence and Social Policy. Price made legal history in 1977 as the only plaintiff to advance to trial in Alexander v. Yale and again in 1993 as the lead counsel in Patricia H. v. Berkeley Unified School District et al.

Both cases were landmark challenges to sexual harassment in education: Alexander established the “quid pro quo” sexual harassment violates Title IX and Patricia H. established that Title IX prohibits a sexually hostile educational environment. She was invited to speak as a panelist upon the 20th anniversary and commemoration of Alexander at the Yale Law School in February 1998.

From 1991-97, Price was also lead counsel in the Title VII case of Pulido v. State of California, where plaintiff was awarded a $1.3 million judgment for sexual harassment against the California Department of Corrections. In January 2002, Price successfully argued a landmark racial harassment and discrimination case before the United States Supreme Court on behalf of Abner Morgan, Jr. in National Passenger Railroad Company v. Morgan.

Price established her own civil litigation firm in June 1991 in Oakland, California. The Firm specializes in civil rights litigation, legal malpractice defense and real estate cases. In 1993 and again in 2001, Price received the Charles Houston Bar Association’s Clinton W. White Advocacy Award for her outstanding achievements in civil litigation. She has provided staff development training in sexual harassment prevention to local government officials and school administrators.

Vernon Crawley, President of Crawley Consulting ( is a graduate of the University of Wisconsin in Madison, Wisconsin, where he attended both undergraduate and graduate schools. Mr. Crawley has enjoyed a distinguished career as a management consultant to Fortune 500 companies, and now advises administrative teams on valuing and managing workplace diversity. He has cultivated a second career as an Affirmative Action Officer, and has been employed with diverse public agencies, including the County of Marin and San Francisco Municipal Railway as EEO program manager. Mr. Crawley has conducted sexual harassment investigations and designed training for a variety of audiences, including “one-on-one coaching” for key executives. He has provided expert witness testimony and case consultations in sexual harassment litigation. He has had many and varying experiences advising agencies on affirmative action programs, investigating charges, training administrators and teachers, conducting organizational diversity needs assessments and developing change management strategies.

Friday, July 10, 2009

SHRM Conference Prize Winner!!

BCG would like to thank all of the people who visited the exhibit hall at the Society for Human Resource Management (SHRM) National Conference in New Orleans, LA. The conference was a huge success with an estimated 10,000 attendees from all over the country and the world.

BCG is happy to announce the winner of our Grand Prize for the conference. Her name is Renee Reynolds from Las Vegas, Nevada. Renee will be receiving an Amazon Kindle! The entire Biddle Consulting team is envious as we would all like to have one of the hot new toys on the market.

Thanks Renee and enjoy from the entire Biddle Consulting Group team!

Thursday, July 2, 2009

NEW Biddle Consulting Group Webinar: Hiring Staff in the Aftermath of the Ricci v. DeStefano Case Decision

On June 29, 2009, the United States Supreme Court ruled that white firefighters in New Haven, Connecticut, were subjected to race discrimination when the city threw out a promotional examination on which white firefighters had done well and black firefighters poorly. The complex 5-to-4 ruling, which reversed an appeals court decision is likely to have a significant impact on the legal landscape and could dramatically affect what employers must do to protect themselves from charges of employment discrimination.

Dr. Dan Biddle, CEO of Biddle Consulting Group, was in attendance during the oral arguments that were presented before the Supreme Court. You are invited to join Dr. Biddle for an informative free webinar that deconstructs the Ricci case and offers insight into what it means to employers.

This webinar is offered through the BCG Institute for Workforce Development (BCGi). As always, this BCGi webinar is free and no product or services will be marketed during the presentation. If you have friends of colleagues who may share an interest in this topic, feel free to pass this webinar invitation to them.

Hiring Staff in the Aftermath of the Ricci v. DeStefano Case Decision
July 24, 2009 | 9:30 a.m. PST | 12:30 p.m. EST
Duration: 1.5 hours
Cost: Free

We look forward to seeing you there!

Wednesday, July 1, 2009


On June 29, the U.S. Supreme Court handed down their 5-4 decision on the Ricci v. DeStefano case. The justices stated the city’s action in discarding the tests violated Title VII of the Civil Rights Act of 1964. The Court applied a "strong-basis-in-evidence" requirement and ruled that the City failed to meet this requirement because "fear of litigation alone" was insufficient to justify throwing out the exam results.

Attend one of BCG's upcoming webinars or attend our National ILG presentation in Atlanta to hear important ramifications this ruling may have for your employment practices!

Thursday, June 11, 2009

Impact of the 2009 Corporate Scheduling Announcement Letter

by Christi Anthony
Consultant, Biddle Consulting Group

Federal contractors across the country have now likely received their copy of the Spring 2009 Corporate Scheduling Announcement Letter (CSAL) from the Office of Federal Contract Compliance Programs (OFCCP). The OFCCP can list up to 25 additional sites per organization on each CSAL. Many contractors who previously experienced little audit activity are seeing dramatic increases in the number of scheduled audits with each CSAL. Preparing well in advance of submission to the OFCCP is critical to ensure a smooth audit year.

Biddle Consulting Group (BCG) has already supported dozens of audits in the 2009 Fiscal Year. Compared to previous years, the Compliance Officers (COs) are clearly looking at Affirmative Action Plans (AAPs) in more detail. The result of a more thorough review of the AAP is a dynamic increase in the number of follow-up requests by the CO. Compliance Officers are asking for more data, subsets of data, and for explanations of the basic plan components such as creation of placement goals, goal attainment, and much more. Contractors should prepare to answer these detailed questions prior to submitting their AAP..

Below is a list of steps that BCG recommends following once a CSAL is received. Depending on the implementation period of the Affirmative Action Plan (AAP), the plan may already be completed. However, if the CSAL is received while preparing the AAP, the steps to preparing for audit submittal are the same as if the plan is already complete.

1. Review the Data: The first and most important step is to review the data that has been used to create the technical reports of the AAP. The OFCCP focuses their review on identifying systemic disparities and, therefore, investigates adverse impact and compensation with a careful eye. Ensuring that all legitimate data refinements have been made is the first step in preparing the AAP. Questions to consider are: “Was the Internet Applicant Rule applied?” “Are the correct compensation values reported?”

2. Critically Evaluate the Technical Reports: Once the data has been deemed as clean as possible, the second step to prepare for an audit submittal is to critically evaluate the AAP reports. Areas of underutilization should be addressed in the narrative, and should have a specific Action Oriented Program that aims to rectify the underrepresentation. Any significant adverse impact should also be investigated thoroughly. The OFCCP seems to be especially interested in adverse impact in the applicant to hire comparisons and sees adverse impact in hiring as “low hanging fruit”. In past years, this type of adverse impact has been the OFCCP’s most significant money maker . Be sure that the correct applicant pool is being used in comparison to hires made during the transaction period. If there is adverse impact in the overall job group, is there a specific title or requisition that is driving those results? If there is significant adverse impact in terminations, be sure to single out voluntary from involuntary terminations. For voluntary terminations, collect and retain letters of resignation. Review exit interviews for those that were involuntarily terminated and be sure that proper procedures were followed. Be especially critical of those job groups that have underutilization, and also show adverse impact against that same group.

3. Analyze Compensation Using an OFCCP-Style Approach: Analyzing compensation in a manner similar to the OFCCP is important to help contractors know what OFCCP may find. Be sure to prepare your compensation report in the manner that best represents your compensation practices as directly requested in the standard desk-audit letter. The OFCCP runs an initial indicator test to identify any potential for the existence of systemic compensation disparities. If the data includes job groupings that have a 5% difference in pay, has at least 10% of the impacted group effected (females, for example), and that group is effected at a rate three times greater than the less-impacted group (males), then the OFCCP is likely going to request additional data. Be aware that the OFCCP has the right to investigate compensation under any terms, and will often investigate individual titles or groups that have a greater than 5% difference in pay, even if the indicator test does not identify an issue.

4. Get Help: Most importantly, if you do not have the resources to help you prepare to submit AAPs for the identified locations, seek help. Careful preparation is the key element to surviving any audit. A lack of preparation can result in a Notice of Violation, and possibly a conciliation agreement which equates to potentially burdensome costs to the contractor. Preparing at the CSAL stage, and prior to receiving a desk-audit letter, will help organizations position themselves for the best chance of closing an audit at the desk-audit stage.

Preparing for an OFCCP compliance evaluation can be an overwhelming task. Following the steps outlined above can help contractors feel comfortable that they are taking the necessary actions in their preparations and presenting their organization to the OFCCP in the best possible light.

Friday, May 22, 2009

Utilizing OFCCP Pre-Award Registry to Check for Audit Closures

While attending a recent ILG meeting, Biddle Consulting Group participated in a discussion about the National Pre-Award Registry found on the OFCCP website. The registry allows companies to search for audits that were closed and the contractor was found to be in compliance. In the link below, there is a search function at the bottom where users can type in a company name and if they have any closed audits within the last two years they will be listed. This can be a handy tool for Federal Contractors since audit status is sometimes unknown. Be aware that not all audits appear on this list. For example, administrative closures and audits that are closed because there are no initial indicators of problem areas MAY NOT appear on the list because the associated closure letter indicates that the audit was closed BUT that the contractor was not issued a letter of compliance.

This Registry can be viewed in one of two formats:

There is a search function that allows users to search the Registry (in ascending or descending order) using the Name of the Contractor Facility; and
Users can download the entire Registry (about 1 Mb) to their computer. Once downloaded, this information can then be imported into any word processor, spreadsheet, or database software package.

See link below:

Tuesday, May 19, 2009

BCG Speaking at SHRM National Conference on Adverse Impact

Adverse Impact and the New OFCCP: Analysis Done Right!

Time/Date: Tuesday June 30th 7:00am-8:15am

Presenter: Patrick M. Nooren, Ph.D., Executive Vice President, Biddle Consulting Group, Inc., Folsom, California.

Workplace Application: This session will help you understand the importance of properly analyzing your selection process for adverse impact.
Strategic policy decisions have changed the OFCCP from an organization seeking to advance classical Affirmative Action into an organization seeking to root-out and eliminate systemic disparities in hiring and compensation. This session will update you on the latest analytical strategies for correctly identifying adverse impact and practical ways in which to mitigate potential problem areas.

We look forward to seeing you at the SHRM National Conference this year!

Friday, May 8, 2009

OFCCP budget increases announced for 2010

The Department of Labor has announced their 2010 budget and the OFCCP has been identified to receive an increase of more than $25 million dollars to enhance their already aggressive enforcement strategies. Included in the budget is the addition of more than 200 full time employeees and a new case mamagement system. See the excerpt below for details.

Secretary Hilda L. Solis unveils U.S. Department of Labor’s budget for fiscal year 2010. View the news brief:

View the entire budget brief:

Excerpt from the Budget in Brief regarding the OFCCP budget increase:

"The Office of Federal Contract Compliance Programs (OFCCP) has the responsibility of ensuring that employers doing business with the Federal Government comply with the Equal Employment Opportunity (EEO) and affirmative action provisions of their contracts. The OFCCP administers and enforces three EEO programs: Executive Order 11246; Section 503 of the Rehabilitation Act of 1973; and the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.

The OFCCP carries out its responsibilities by: (1) offering technical assistance to Federal contractors and subcontractors to help them understand the regulatory requirements and review process; (2) conducting compliance evaluations and complaint investigations of Federal contractor and subcontractor personnel policies and procedures; (3) obtaining Conciliation Agreements from contractors and subcontractors who are in violation of regulatory requirements; (4) monitoring contractors and subcontractors progress in fulfilling the terms of their agreements through periodic compliance reports; (5) forming linkage agreements between contractors and Labor Department job training programs to help employers identify and recruit qualified workers and recommend enforcement actions to the Solicitor of Labor.

The FY 2010 budget request includes a program increase of $25,600,000 to fund 213 FTE and a new case management system. The additional FTE will support enforcement and outreach efforts related to compensation. Given the complexities of new procedures outlined in the two federal register notices – Interpreting Nondiscrimnation (Standards) and Voluntary Guidelines for Requirements of Executive Order (guidelines), OFCCP needs to place additional emphasis on outreach and training, as well as improving the various approaches and investigative techniques used to evaluate compensation. In addition, the program increase will also support litigation to amplify enforcement activities by funding external experts to verify OFCCP’s allegations and assessments to solidify its commitment to strong enforcement.
In FY 2008, OFCCP made total financial settlements of $67,510,892 in back pay and annualized salary and benefits for a record 24,508 American workers who had been subjected to unlawful employment discrimination. This marks the fourth consecutive year that OFCCP has posted record enforcement numbers."

Wednesday, May 6, 2009

BCG to speak at National ILG in Atlanta re: Ricci v. DeStefano testing case

United States Supreme Court is Set to Rule on the Biggest Testing Case Since Griggs v. Duke Power

On April 22, 2009, the U.S. Supreme Court (“USSC”) heard the oral arguments offered by each side in the Ricci v. DeStefano testing case. In this case, 18 candidates (17 Whites and 1 Hispanic), who successfully passed two exams for promotion to Lieutenant and Captain positions, are suing the City of New Haven, Connecticut for refusing to certify the exams and make the promotions because the tests had adverse impact (whites scored higher than African-Americans) and were not justifiably valid. The plaintiffs argued that their rights under Title VII and the 14th Amendment Equal Protection Clause were violated. This summer, we expect the USSC to rule on this very important matter. Dr. Biddle attended the oral arguments at the USSC and will discuss the court’s ruling as well as the implications for federal contractors.

The session will be at 2:30pm on July 29th (Concurrent Session #4).

Thursday, April 30, 2009

United States Supreme Court Set to Rule on the Biggest Testing Case Since Griggs v. Duke Power

By Dan A. Biddle, Ph.D
CEO, Biddle Consulting Group

On April 22, 2009, the U.S. Supreme Court (USSC) heard the oral arguments offered by each side in the Ricci v. Destefano testing case. In this case, 18 candidates (17 Whites and 1 Hispanic), who successfully passed two exams for promotion to Lieutenant and Captain positions, are suing the City of New Haven, Connecticut for refusing to certify the exams and make the promotions because the tests had adverse impact (whites scored higher than African-Americans) and were not justifiably valid. The plaintiffs argued that their rights under Title VII and the 14th Amendment Equal Protection Clause were violated.

As with every case that reaches the USSC, this case had a complex history. In the original case, the federal district court granted the defendants’ motion for summary judgment. On appeal, the United States Court of Appeals for the Second Circuit affirmed the lower court’s ruling, reasoning that the City, by refusing to certify the results of the promotional exam, was trying to fulfill its obligations under Title VII (by not moving forward with an invalid test that had adverse impact), and was therefore protected in its actions. By agreeing to hear the case, the USSC is now charged with the difficult task of deciding whether a City can throw out the results of an exam process that they believed (based on a post-administration validity review) would not survive a Title VII validation challenge.

Other critical questions to which the USSC may frame answers include: (1) Do candidates who take a test for a public sector job have a right to expect that the public entity will develop and implement validated selection procedures, regardless of adverse impact? And (2) Will the USSC take this opportunity to redefine “professionally developed tests” as defined in the 8-0 USSC Griggs v. Duke Power Company (401 US 424, 1971) case and allow any test if it is developed professionally to stand regardless of its validity?

To read more of this upcoming article and topic, please click here to subscribe to EEO Insight:

Monday, April 20, 2009

Good Faith Initiative for Veterans Employment (G-FIVE)

By Criselda Rivet, EEO Analyst

I recently attended the Northern California ILG meeting where the OFCCP Regional Director from the Pacific Coast, William Smitherman, awarded the G-FIVE Award Nomination Recognition to the following companies:

Kaiser Permanente - Oakland, CA
Kaiser Foundation Hospital – Santa Rosa, CA
Roadway Express – West Sacramento, CA

Each recipient discussed their award-winning programs and how they came to be nominated. Their speech consisted primarily of effective action-oriented programs designed to attract women, minorities, veterans and people with disabilities into their workforce while proactively implementing equal employment opportunity. The efforts of the aforementioned Federal contractors resulted in further diversification of the workforce as well as the recognition of the Office of Federal Contract Compliance (OFCCP).

G-FIVE recognizes companies’ best practices and good faith efforts in the advancement and employment of veterans. It is an incentive given to contractors and subcontractors in hiring more veterans. And it is also one way of strengthening the relationship between the OFCCP and the veterans group.

There are two (2) ways to get the G-FIVE nomination. Both of which have to undergo a full compliance audit (i.e., desk audit, onsite, and offsite).

(1) Self-nomination – contractors and subcontractors may submit a written statement addressing their interest in being considered for the nomination.
(2) Recommendation from the OFCCP Regional Directors to the National Office.

Any contractor or subcontractor who receives the recognition will be audit-free from the OFCCP for three years following the date the recipient receives the rating. Please note, if your organization has multiple locations, only the awarded location is exempt from being audited for three years from the date that the award is granted.

G-FIVE recipients will be recognized on OFCCP’s website and will also receive a certificate of recognition.

For more information about G-FIVE Initiative, please visit the OFFCP website at

Friday, April 17, 2009

How to approach a Reduction in Force (RIF)

by Patrick Nooren Ph.D.
EVP Biddle Consulting Group

Reductions in Force (RIFs)

Given the current state of the economy it’s understandable that many organizations are turning to reductions in force as a way to reduce costs. With this said, it’s important for those same organizations to understand that just like any other employment decision that impacts the terms or conditions of employment, if RIF decisions disproportionately impact a protected group of employees, the rationale behind those decisions must be “job-related for the position in question and consistent with business necessity.” In other words, valid. As an alternative, many organizations are choosing to avoid legal scrutiny altogether (at least for a systemic, disparate impact argument) by simply avoiding RIF decisions that disproportionately impact protected group members. They do so by conducting preliminary “what if” analyses comparing the retention rates of different groups (e.g., men/women, whites/minorities, <40/40+) based upon anticipated layoffs. If those analyses indicate statistically significant disparities, then the organization can either adjust their RIF decisions or compile the necessary information to defend them.

Patrick Nooren Ph.D. and the BCG consulting team have been conducting RIF's and other statistical analyses for EEO Litigation cases and Affirmative Action Plan audits for over 15 years. Go to or contact us at 1-916-294-4250 for more information.

Tuesday, April 14, 2009

National ILG meeting coming in July

This year's National ILG conference is being held in Atlanta, GA.

BCG always recommends attending your local ILG as well as the national conference for an opportunity to network with other contractors that have EEO/AAP responsibilities. The national conference also provides a rare opportunity to hear about the latest EEO initiatives directly from the leaders at OFCCP.

A quote from the website:

"MAKE A DIFFERENCE in an economy where we have learned that partnerships
between employers and government agencies are the key to success.

EXPERIENCE THE DREAM of a diverse workforce where employees work
cohesively together and thrive in a successful environment.

Learn how to make both come true by attending the 27th Annual Industry Liaison Group
National Conference in Atlanta Georgia. No other employer association has a broader base
of constituents focused on EO/AA matters or a more successful partnership with
government agencies. Hundreds of the nation's top human resource executives and
professionals from Fortune 500 companies and small businesses are expected to attend
this annual event."

We will see you there!

Monday, April 13, 2009

Diversifying Your Job Posting

By: Chris Lindholm

While most Federal contractors find time to reach out to the standard websites such as Monster or in order to post jobs and find qualified applicants, it has now become very important for those same contractors to diversify their search and use lesser known resources to find not only qualified, but valuable employment candidates. While the primary motivation for any employer should be to find the best candidate, there is additional motivation to seek out options that allow a more diverse candidate pool to apply for a job. The Department of Labor is dramatically ramping up efforts through OFCCP audits to ensure that contractors are not just posting jobs to diverse sites, but that the contractor is tracking the results of those efforts. A token effort to post jobs on the non-mainstream sites is no longer good enough. Real efforts to post and track response rates at sites for Disabled and Veterans is being scrutinized heavily, so employers need to begin utilizing sites such as the ones cited below. They are organized and easy to use.

Contractors can use Google and other search engines to find a site that will fit the needs of employers nationwide.

NEW! BCGi Advanced EEO Compliance Series

NEW! BCGi Advanced EEO Compliance Series

The Biddle Consulting Group Institute for Workforce Development (BCGi) will be presenting a series of webinars covering EEO and Affirmative Action compliance. This series will go beyond the basics of OFCCP compliance topics and methodology as it relates to topics such as audit strategies, compensation analysis, test validation, selection strategies, EEO statistics, and how recent legislation affects the industry.

The Advanced EEO Compliance Series is a compilation of five (5) webinars. The registration fee for each webinar is $59 or $250 if you register for all five at the same time. Upon registering online, you will receive an email regarding the payment due. Registrants will receive a webinar access code when payment is received.

Biddle Consulting Group, Inc. is a HRCI approved provider.

SESSION ONE: Compensation Analysis and Recordkeeping in the Age of Ledbetter
May 6, 2009 | 10:00 a.m.-11:30 a.m. PDT
Register Online:

The Office of Federal Contract Compliance Programs (OFCCP) continues to prevail against employers who fail to ensure that their selection and compensation practices are valid, fair, and consistently applied. The OFCCP continues to focus on bringing together highly competent statistical staff to assist them in their compliance oversight efforts.
With respect to compensation, the OFCCP relies on a multi-tiered approach with the goal of applying multiple regression wherever possible to determine whether differences in compensation are due to “legitimate” factors or may be evidence of discrimination.
As a result of the Lilly Ledbetter Fair Pay Act which was signed into law in January 2009, there is likely to be a significant increase in the scrutiny employers face with respect to their compensation practices. Employers should begin to plan and implement strategies to protect themselves and ensure that their compensation practices are fair and supportable.
Join Dr. Jim Higgins, Director of Compensation Analysis for Biddle Consulting Group and Dr. Patrick Nooren, Executive Vice President and Director of Equal Employment Opportunity for this informative webinar. You will learn about how to design, conduct, and interpret a multiple regression analysis of compensation, how to calculate the amount needed to eliminate disparities, record keeping requirements, and issues to consider when preparing for an OFCCP compensation audit.

SESSION TWO: EEO Statistics: Advanced Techniques For Ensuring Fairness And Regulatory Compliance
May 13, 2009 | 10:00 a.m.-11:30 a.m. PDT
Register Online:

The Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) have dramatically increased the level of scrutiny to which they expose employer workforce data. Due to the success they have had in winning damages and back pay by relying on advanced statistical analysis, this trend is certain to continue.
Employers, in order to both protect themselves as well as comply with the spirit of EEO, will greatly benefit from a thorough knowledge of the various statistical techniques applied to EEO analysis.
Join Dr. Patrick Nooren, Executive Vice President and Director of Equal Employment Opportunity for Biddle Consulting Group, and Dr. Jim Higgins, Director of Compensation Analysis for Biddle Consulting Group for this informative webinar. You will learn about the OFCCP’s analytical strategies for analyzing employer data, the specific statistical tests that should be applied to analyzing all phases of the hiring, promotion, and reduction in force process. You will learn about the strengths and limitations of each statistic, how to calculate them and how to interpret the findings. Finally, you will learn about strategies to help maintain a fair and productive workforce while reducing legal exposure.

SESSION THREE: Advanced Techniques for Developing and Validating Pre-Employment Tests: Effective Hiring Amidst the Economic Slowdown
May 20, 2009 | 10:00 a.m.-11:30 a.m. PDT
Register Online:

Of all compliance-related fines levied by The Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP), the single largest source has been monies recouped from employers who were using invalid or discriminatory pre-employment tests. Employers can protect themselves by learning and applying the scientific techniques associated with test validation.
Join Dr. Jim Kuthy, Principal Consultant with Biddle Consulting Group, and Dr. Jim Higgins, Director of Compensation Analysis for Biddle Consulting Group for this informative webinar. You will learn about the legal framework associated with pre-employment testing, the current state-of-the-art in scientific thinking associated measuring job-related knowledge, skills and abilities, issues surrounding the development of job performance tests, and statistical techniques involved in test validation. This information will help employers improve the quality of their workforce while reducing legal exposure.

SESSSION FOUR: Advanced Techniques for Developing and Validating Pre-Employment Tests: Effective Hiring Amidst the Economic Slowdown
May 20, 2009 | 10:00 a.m.-11:30 a.m. PDT
Register Online:

Of all compliance-related fines levied by The Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP), the single largest source has been monies recouped from employers who were using invalid or discriminatory pre-employment tests. Employers can protect themselves by learning and applying the scientific techniques associated with test validation.
Join Dr. Jim Kuthy, Principal Consultant with Biddle Consulting Group, and Dr. Jim Higgins, Director of Compensation Analysis for Biddle Consulting Group for this informative webinar. You will learn about the legal framework associated with pre-employment testing, the current state-of-the-art in scientific thinking associated measuring job-related knowledge, skills and abilities, issues surrounding the development of job performance tests, and statistical techniques involved in test validation. This information will help employers improve the quality of their workforce while reducing legal exposure.

SESSION FIVE: Advanced Audit Strategies: Preparing for the Worst
June 3, 2009 | 10:00 a.m.-11:30 a.m. PDT
Register Online:

It has been said that “those who fail to plan, plan to fail.” One of the most effective things that an employer can do to ensure compliance with the letter and spirit of EEO legislation and to protect themselves from compliance-related legal exposure, is to plan for the possibility of an OFCCP compliance audit.
Join Chris Lindholm, EEO/AA Director at Biddle Consulting Group, and Dr. Jim Higgins, Director of Compensation Analysis for Biddle Consulting Group for this informative webinar. You will learn about the primary mistakes that employers make that result in OFCCP audits as well as specific strategies for both avoiding audits where possible and for dealing with them when they occur. You will also learn about changes that you should implement due to recent laws and court cases with will increase you chance of prevailing in employment-related litigation.

Sessions start soon, sign up today!
Contact: Angela Wiley
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Tuesday, March 10, 2009

Update: Corporate Scheduling Announcement Letter released by OFCCP

All Federal contractors will be interested to know that the new OFCCP Corporate Scheduling Announcement Letter (CSAL) was released last week (March 2nd) and contractors are feeling the pain as many new establishments are being added to the list of expected desk audits. All Federal contractors should be contacting the CEO to determine if a CSAL was sent to the corporate office. If two or more locations are on the list then a CSAL should be on its way. Some contractors have had to contact the National OFCCP office to request their copy. While people may ask if making that call (or faxing in a request for the letter) might trigger an audit, BCG does not believe that would be the case and that the Federal Contractor Selection System (FCSS) is still in effect for contractors to be selected for audit.

Below is a sample of the text from the CSAL. Note that Lorenzo D. Harrison, Director, Division of Policy, Planning and Program Development is the authorizing signature at the bottom.

Standard Text from the CSAL:

"The U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) is informing you that at least two of your establishments have been identified for possible scheduling of a compliance evaluation during this scheduling cycle.

The establishments on the enclosed list were selected through OFCCP's Federal Contractor Selection System (FCSS). The FCSS is an administratively neutral selection system that identifies Federal contractor establishments for evaluation through multiple information sources and analytical procedures, including the use of EEO-1 Reports; development of threshold requirements, such as establishment size; random sampling; analysis of external Federal contract databases to better establish jurisdictional coverage; and the use of a mathematical model that ranks Federal contractor establishments based on an indicator of potential workplace discrimination. Establishments on the FCSS are released to OFCCP field offices for scheduling one name at a time in a pre-determined specific order.

For a variety of reasons, the enclosed list is not all-inclusive; it is possible, therefore, that other establishments of your company have been selected for a compliance evaluation during this scheduling cycle. For example, company establishments that are not clearly associated with your parent organization through currently available EEO-1 Reports, such as those that have been acquired through recent mergers, are not included in this list. In addition, the enclosed list does not identify whether an establishment of your company has been selected for evaluation because of a contract award notice, a directed review, as a result of conciliation agreement monitoring or an individual complaint, or as part of the agency's Corporate Management Compliance Evaluation (CMCE) or Functional Affirmative Action Plan (FAAP) initiatives.

The FCSS does limit the number of new compliance evaluations identified to 25 new evaluations per parent company during a scheduling cycle (currently, October 2008 through September 2009). The 25-establishment limit does not apply to compliance evaluations scheduled as a result of the agency's CMCE or FAAP initiatives, contract award notices, directed reviews, conciliation agreement monitoring, or credible reports of an alleged violation of a law or regulation, including complaints. If you believe that the scheduling of an establishment exceeds the 25-establishment limit, please notify the office that scheduled the evaluation.

Please note that this is not a scheduling letter and that you do not need to submit anything to OFCCP at this time. Establishments that are actually scheduled for evaluation will receive a scheduling letter as outlined in the Federal Contract Compliance Manual, Section 2B03. Some OFCCP offices may not schedule every establishment identified through FCSS in a given scheduling cycle. If an establishment identified through FCSS is not scheduled during a particular scheduling cycle, it is immediately placed back in the pool for future scheduling cycles.

I would like to take this opportunity to invite you and your staff to take advantage of the compliance assistance OFCCP offers. OFCCP's Internet website at hosts a wealth of technical assistance materials, including information about OFCCP's regulations, policy directives, and answers to frequently asked questions. The website also has information about free compliance assistance seminars in your area.

If you have any other questions about the compliance evaluation process or would like individualized compliance assistance, please contact the nearest OFCCP regional office. You can find a list of OFCCP regional offices at Our regional offices would be happy to provide compliance assistance at the corporate level for establishments covered by this letter and any other facilities you may wish to include."

Thursday, February 26, 2009

Solis Confirmed as Secretary of Labor

On February 24, 2009, the U.S. Senate confirmed the appointment of Hilda Solis as the Secretary of Labor for the new Administration. The process had taken over a month of hearings and committee debates. Since 2001, Ms. Solis has represented the 32nd Congressional District in California. She graduated from California State Polytechnic University, Pomona and earned a Master of Public Administration degree from the University of Southern California. A former federal employee, she worked in the Carter White House Office of Hispanic Affairs and was later appointed as a management analyst with the Office of Management and Budget in the Civil Rights Division. She served in the California State Assembly from 1992 to 1994 and in 1994 was the first Latina elected to the California State Senate. She was chair of the California Senate Industrial Relations Committee and authored a record seventeen state laws aimed at combating domestic violence.

Friday, February 6, 2009

Free Upcoming Biddle Consulting Group Webinars

• Updated Best Practices for OFCCP Audits
BCG will be presenting on "Best Practices for Managing OFCCP Audits" with an emphasis on what the OFCCP is focusing on in desk reviews.
Duration: One and a half (1.5) Hours
Cost: Free
o February 11, 2009 9:00 a.m. PST 12:00 p.m. EST
o Register Today -

• Understanding Statistics used in EEO
BCG will be presenting on how statistics are used in the field of EEO with a focus on OFCCP audits.
Duration: One and a half (1.5) Hours
Cost: Free
o June 10, 2009 11:00 a.m. PDT 2:00 p.m. EDT
o Register Today -

• Update on Recordkeeping and Definition of an Applicant
BCG will be presenting on the latest federal contractor requirements associated with recordkeeping and how to utilize the internet definition of an applicant.
Duration: One and a half (1.5) Hours
Cost: Free
o July 13, 2009 11:00 a.m. PDT 2:00 p.m. EDT
o Register Today -

• Keeping Up With the Changes in Veterans and Disability Requirements
Biddle Consulting Group will be presenting on keeping up with all of the changes in the requirements associated with Veterans and people with disabilities.
Duration: One and a half (1.5) Hours
Cost: Free
o July 23, 2009 11:00 a.m. PDT 2:00 p.m. EDT
o Register Today -

Friday, January 30, 2009

Obama Signs a Series of Executive Orders to “Level the Playing Field” for Labor Unions

By Desiree Throckmorton

President Obama has created a task force, led by Vice President Joe Biden, to boost middle class workers. On Friday January 30, 2009, President Obama signed three Executive Orders (EO) that will (1) require federal contractors to offer jobs to current workers when contracts change hands, (2) reverse a Bush administration order requiring federal contractors to post notice that workers can limit financial support of unions serving as their exclusive bargaining representatives, and (3) will prevent federal contractors from being reimbursed for expenses meant to influence workers deciding whether to form a union and engage in collective bargaining. The second movement will overturn an Executive Order requiring federal government contractors to post notices to employees explaining their rights regarding union membership and the associated fees. In some states union members have the option of limiting the financial support they pay their union. The EO also required that government contracts and purchase orders, entered into on or after April 18, 2001 and over $100,000, include reference to the specific EO. The Office of Federal Contract Compliance Programs (OFCCP) enforced EO 13201 and conducted onsite audits to ensure that federal contractors and subcontractors were in compliance. The Federal Contractor community is awaiting guidance from OFCCP – it may depend on when the onsite audit was scheduled.

Lilly Ledbetter Fair Pay Act of 2009

By Shelli Johnson

On Thursday January 29th, President Obama signed his first law, The Lilly Ledbetter Fair Pay Restoration Act, which extends the statute of limitation deadlines for alleged unequal pay lawsuits. Inspired by the Supreme Court case Ledbetter v. Goodyear Tire & Rubber Co. in 2007, the new law says the 180-day statute of limitations for pay discrimination cases is applicable to each allegedly discriminatory paycheck, not merely the date when the pay was agreed upon. Lily Ledbetter worked for Goodyear Tire & Rubber for 19-years before realizing that she was being paid less than male counterparts at the company. She sued, but the Supreme Court decided her claim of discrimination came too late to be legally possible. Contractors should audit their compensation practices to ensure there is sufficient documentation supporting compensation decisions. Additionally, employers should analyze their compensation data, on an annual basis, to determine whether there are gender, race/ ethnicity based disparities. Contractors may also need to consider adjusting retention practices to maintain documentation for a longer period of time.

Thursday, January 29, 2009

Updated OFCCP Compensation Triggers

By Danielle Yokoi

There have been a lot of recent OFCCP developments within the past few years. A more recent development is the modification of the OFCCP’s compensation trigger analysis. Most contractors are familiar with the trigger analysis known as the “2/30/3.” The OFCCP has recently begun using a modified version; known as the “5/10/3.” This analysis has the same concept as the “2/30/3” but changes the thresholds. Below is a summary of each version.

OFCCP Red Flag Analysis 2/30/3:
· Test 1 determines whether a two percent (2%) difference in compensation exists between the protected group and the non-protected group in a given grouping (i.e. job title).
· Test 2 determines whether at least 30 protected employees are negatively impacted by the 2% difference.
· Test 3 determines whether at least 30 percent of the protected workforce is negatively impacted by the 2% difference.
· Test 4 determines whether the protected group is negatively impacted 3 times more than the non-protected group.

OFCCP Red Flag Analysis 5/10/3:
· Test 1 determines whether a five percent (5%) difference in compensation exists between the protected group and the non-protected group in a given grouping (i.e. job title).
· Test 2 determines whether at least 30 protected employees are negatively impacted by the 5% difference.
· Test 3 determines whether at least 10 percent of the protected workforce is negatively impacted by the 5% difference.
· Test 4 determines whether the protected group is negatively impacted 3 times more than the non-protected group.

Keep in mind this comparison should be done for Females vs. Males and Minorities vs. Non-Minorities. You will notice the only differences are the threshold of Test 1 and 3.

BCG recommends conducting this type of analysis before submitting compensation data to the OFCCP. With the introduction of the new trigger test the industry has seen an increase in the OFCCP’s requests for further compensation data (i.e., 12-factor data). This is evidence that the OFCCP is focusing their efforts on finding systemic compensation disparities within contractor community. That is not to say this is their only focus, because they are still focusing on finding selection rate disparities within hires, with a specific focus on low-lying fruit (aka high volume positions).

For more information please attend our Audit webinar on February 11th. Please register here:

Thursday, January 15, 2009

Accessible Online Application Systems and Tools for Achieving Them

By Shana Larrucea

The OFCCP directive from July 2008 regarding the online recruitment of disabled individuals spurred three organizations to help employers understand and adapt to the new directive.

A. ODEP – The Office of Disability and Employment Policy was created 6-7 years ago and is a division of the Department of Labor.
B. JAN – The Job Accommodation Network provides works with individuals and employers on accessibility and accommodation issues. They have 25 years of experience, are national, and are FREE.
C. EARN – The Employment Assistance Recruitment Network provides a job matching service for disabled individuals and is also a consulting service that assists employers with accessibility issues.

The OFCCP directive is about the accessibility and usability of applicant tracking systems in the employment process and how an online system might be prohibitive to people with disabilities. Through sheer necessity, companies are implementing applicant tracking systems and in turn, requiring applicants to apply for open positions online. The requirements of applying online might be difficult for individuals with disabilities to access and use the various functions of an online application. The bottom line is that employers need to provide equal employment opportunity to disabled individuals in the hiring process.

The partnership of ODEP, JAN, and EARN led to the following:

1. Research on the cost and benefit of accommodation.
2. They provide free training and webinars for employers on all things related to accommodation and accessibility. These organizations are confidential, so employers can feel comfortable asking sensitive questions.
3. These organizations are for technical assistance only – they are not related to enforcement at all.
4. MOST IMPORTANT – they created documents that will gauge the accessibility of an employer’s website. It’s referred to as Accessible Systems Racing League:

Thursday, January 8, 2009

OFCCP Announces Financial Remedies for 2008

OFCCP received a record $67.5 million for 24,508 workers in 2008, a 133% increase in financial remedies since 2001. Not only has OFCCP increased the dollar amount in back pay, salary, and benefits, but the number of American workers affected has also increased. Ninety-nine percent of the financial remedies were stated to have been collected in cases involving a significant number of workers or applicants subjected to discrimination because of an unlawful employment practice or policy. OFCCP’s strategic approach to seeking out and finding systemic discrimination has created a few hot spots for contractors to be aware of. These hot spots include: recordkeeping (especially with regard to applicants and hires selection decisions), validation of pre-employment testing, and compensation analyses. The number one revenue maker still appears to be in regard to inadequate selection decision recordkeeping. However, other areas of compliance are receiving an increasing amount of attention from posting jobs for veterans to accessibility of online application systems. Please feel free to contact BCG for more information.

For more information please visit: