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.

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