Web Chat with Pat Shiu: January 7, 2011

Patricia Shiu recently addressed the contractor community to join her on Friday, January 7 as she hosts a live web chat from 1:30-2:30 PM (EST) to discuss OFCCP's regualatory agenda. The OFCCP is also seeking public comment on how they can collect data regarding worker compensation in order to close the persisting wage gap between men and women.

To review the Fall 2010 Regulatory Agenda that will be discussed during the web chat, click here. http://www.dol.gov/ofccp/regs/compliance/DOL_Fall_2010_Regulatory_Agenda.pdf#page76

To join the chat and find other useful information about the Department of Labor's agenda, including fact sheets, videos, and archival material visit www.dol.gov/regulations.

Placement Goals for Persons with Disabilities

As many Federal contractors may know, the OFCCP has announced through various conferences and webinars that they intend to require placement goals for persons with disabilities in the very near future. Hence, the question that the Federal contracting community is asking is: “Where is the OFCCP getting the numbers to drive such an ambitious goal?” Prior to 2008, the Bureau of Labor Statistics had not asked survey questions in regard to persons’ disabilities. However in 2008, in the annual American Community Survey (ACS), the Bureau started asking more questions about people with disabilities. The types of questions being asked have become more specific and extensive when compared to surveys from prior years.

Currently, the disability questions on the ACS focus on the effect of one’s disability upon his/her physical life as well as the person’s work history within the past year. Specifically, the questions revolved around the respondent’s disability and whether it affected their ability to work. Furthermore, questions were asked in regards to the respondents’ education, occupation, industrial sector they worked in, and wages. Thus, with the introduction of the new questions being asked about disability since 2008, the OFCCP will be able to determine availability for persons with disabilities by utilizing a three-year rollup of data from 2008, 2009, and 2010.

Additional E-Mail Sent Regarding 2010 EEO Census File

On December 17th, staff from the EEOC sent an e-mail to subscribers regarding additional details about the 2010 EEO census file. Below are the highlights of the e-mail. 

Summary:

• Informal update on the status of the American Community Survey 2010 Special EEO Tabulation from the Census Bureau. These updates will continue, as needed, until the EEO (Tabulation) File and its accompanying means for accessing data from the File are released in the fall of 2012. This information is unofficial and provisional, as it will only be finalized shortly before the Census Bureau releases the EEO File and its mechanism for accessing it.
• As for the information on “disability,” it could not be made part of this upcoming File.
• As mentioned in the first update, the occupational crosswalks for the 2010 File will be based in the 2010 Standard Occupational Classification System.
• In the works is a proposed crosswalk from the 840 detailed occupational codes contained in the SOC system to the approximately 479 detailed occupational categories coded by and available from Census for worksite data. (There will an additional category for residence data.) This same attachment contains the crosswalks between and among the various occupational groupings required for various purposes.
• In addition to the primary SOC to Census crosswalk, the attachment shows the proposed crosswalks for the federal Office of Personnel Management (OPM) job categories; the EEOC’s nine EEO-1 form categories; the EEOC’s nine MD-715 Federal Sector categories; and the generally useful 14 EEO categories, which can be easily collapsed into the nine EEO-1 categories.
• The Census codes will, more likely than not, consist of four digit codes.
• In addition to the standard numbers and derived percents, the EEO File will have a standard-error or margin-of-error available for every number or estimate. 
• It now appears that Combined Statistical Areas (CBA’s) will not be provided for several reasons, including the fact that they can be constructed from lower level geographies.
• The mechanism for accessing and tabulating information from the Census 2010 Special EEO File will be created by the Census Bureau for the Federal Consortium of civil rights agencies. It will be part of the American FactFinder and will have a new look and feel, be more powerful, and - at the same time - be more user-friendly. 
• The basic EEO tables produced will probably consist of a standard or user-modified table of numbers and table of percents, just as with the previous 2000 EEO File Data Tool(http://www.census.gov/eeo2000/index.html). It will most likely be able produce an additional table of standard-errors or margins-of-error that correspond to each of the estimates contained in the table of numbers.
• In addition to the general tools that are available to everyone for accessing and using the data in the EEO Special File, there will be query and report tools created by the various civil rights agencies that will make it easy for users of the File to find and produce what they need. Traditional users of the EEO Special File will be guided by American FactFinder to special sections that have been developed for them by the Federal civil rights agencies. In essence, the features and capabilities of the previous 2000 Special EEO File Data Tool will be incorporated in FactFinder through special EEO sections, which will provide steps for the EEO community to find, format, print and download what they need.

Despite all of the preceding information on the current status of the Special EEO File and the means for accessing it, the entire project is still a work-in-progress.

New CSAL Letters Arriving on Federal Contractors Desks

As promised, the OFCCP has mailed out the 2011 Corporate Scheduling Announcement Letter (CSAL). At least one set of letters was dated December 6th, so contractors should be checking in with their CEO to see if a letter was received. The text of the updated letters appears to be largely the same as previously issued versions.

For details associated with the CSAL, see the Frequently Asked Questions from the OFCCP webiste listed here:

http://www.dol.gov/ofccp/regs/compliance/faqs/csalfaqs.htm

More Details on 2010 EEO Census File Emerge

More details are being posted regarding the 2010 EEO census file for use in the development of Affirmative Action Plans. First, the list of census codes has been released and can be found here:

http://www.census.gov/hhes/www/ioindex/ioindex.html

The 2010 EEO census occupational list has 539 codes and 4 military codes. The list, available in spreadsheet format, is separated by job category.

Additional details were made available in a Powerpoint presentation by the US Census Bureau. The summary is as follows:

- File is sponsored by The EEOC, OFCCP, Dept. of Justice Civil Rights Division and the Office of Personnel Management

- Similar to the 2000 EEO file, the 2010 file is a special tabulation of the civilian labor force (CLF) aged 16 and older

- Occupation by sex by race/ethnicity, and other characteristics for detailed geography

- External benchmark for conducting comparisons between the racial, ethnic, and sex composition of each employer's workforce to its available labor market

- Used by organizations to develop and update their affirmative action plans

- Monitoring/enforcing Civil Rights laws:
Title VII of the Civil Rights Act of 1964 (Title VII)
Age Discrimination in Employment Act (ADEA)
Americans with Disabilities Act (ADA)
Equal Pay Act of 1963 (EPA)
Rehabilitation Act of 1973

- New for the 2010 EEO File
ACS 2006-2010 5-year file
Margins of error
2010 Census population base
2010 SOC Occupation categories
Additional variable: Citizenship

- Three Geography Types
Residence
Worksite
Worflow Geography

- Geography Levels
U.S. Total
All states
Core Based Statistical Areas (CBSA’s) of 50,000 or more
Counties and County Sets (Counties with populations of 50,000 or more or aggregations of counties that together have a population of 50,000 or more.)
Places of 50,000 or more

- Expected Availability - Fall 2012

Link to the slides is here:

http://search.census.gov/search?q=2010+eeo+tabulation&filter=0&entqr=0&output=xml_no_dtd&ud=1&client=subsite&proxystylesheet=subsite&hq=inurl%3Awww.census.gov%2Fhhes%2Fwww%2Feeoindex&subtitle=&sort=date%3AD%3AL%3Ad1&oe=UTF-8&ie=UTF-8

OFCCP Continues to Pursue Discrimination Cases Against Food and Beverage Suppliers

On Thursday, December 2, 2010 the OFCCP posted their latest case against a food and beverage supplier. Over the last 24 months, food and beverage contractors have continuously found themselves under the OFCCP's microscope and in the press due to issues in female and minority hiring. While the OFCCP has not stated that they are focused on the food and beverage industry, any internet search of OFCCP complaints against Federal contractors will show that over the last two years there has been a steady stream of six-figure settlements against food and beverage distributors.

See details and link to OFCCP web posting below:
http://www.dol.gov/opa/media/press/ofccp/OFCCP20101644.htm

Wholesale Food Distributor Sued for Discrimination Against Women

Nash Finch Company, the second largest wholesale food distributor in the U.S., was sued this week by the Office of Federal Contract Compliance Programs for systemic discrimination against more than 80 qualified female applicants who sought positions at the company's Lumberton, N.C., facility. Over the past decade, the Minneapolis-based company has been involved in several discrimination cases with OFCCP at various facilities throughout the country. "It is unacceptable that a company which profits from lucrative federal contracts would repeatedly violate the law in this manner," said OFCCP Director Patricia A. Shiu. "Nash Finch has demonstrated an unfortunate pattern and practice of hiring discrimination, and the American taxpayers should not have to bankroll their bad behavior anymore."

OFCCP Posts Latest Lawsuit Alleging Hiring Discrimination

On November 23rd, 2010 the OFCCP posted notice of a lawsuit filed against another Federal contractor for alleged discriminatory hiring practices. The suit highlights Federal contractors' continuing struggles with Adverse Impact in the hiring/selection process.

There has been a consistent trend in recent years where the OFCCP has continuously identified disparities in the hiring process against various race and gender groups. Lawsuits such as the one listed below should serve as a reminder to Federal contractors that detailed recordkeeping, especially during the hiring process, is critical for contractors to gain the ability to proactively identify disparities in hiring before the OFCCP conducts an audit. Often, when a desk audit letter arrives it may be too late to prevent the contractor from being subjected to scrutinty resulting in a conciliation agreement or worse.

Posted by OFCCP, November 23, 2010.
Office of Federal Contract Compliance Programs (OFCCP)

Latest Events and News

News Release
OFCCP News Release: [11/23/2010]
Contact Name: Rhonda Burke or Scott Allen
Phone Number: (312) 353-6976
Release Number: 10-1605-CHI

US Department of Labor sues Meyer Tool Inc. for systemic discrimination against African-Americans

Complaint seeks remedies for affected machinist applicants

CINCINNATI - The U.S. Department of Labor's Office of Federal Contract Compliance Programs has filed an administrative complaint against Meyer Tool Inc., a federal contractor that manufactures engine parts for the aerospace industry. The suit alleges that Meyer Tool systematically rejected African-American job applicants who sought entry-level machinist positions at its plant in Cincinnati.

To see the entire post select the link below:

http://www.dol.gov/ofccp/OFCCPNews/LatestNews.htm#news1

Senate Does Not Pass the Paycheck Fairness Act

The Paycheck Fairness Act bill, designed to lessen the gender wage gap, did not get the necessary Senate votes in order to move forward (it garnered only 58 votes out of the necessary 60 votes).

Under the current Equal Pay Act, once an employee established a prima facie evidence of pay discrimination based on sex, the burden of proof shifts to the employer to show that the said wage gap is due to "any other factor other than sex."

The Paycheck Fairness Act sought to replace the "any other factor other than sex" defense to "bona fide factor(s)." This meant that the employer would have had to demonstrate that the at-issue pay gap is due to business necessity. Once the employer successfully demonstrated the business necessity defense, the burden would shift back to the employee. The employee would then have to show that an alternate employment practice is available (i.e., an employment practice that will serve the same purpose BUT will not create the significant pay gap) and that the employer chose not to implement such an employment practice. The passing of the Paycheck Fairness Act would have made it easier for employees to bring class action lawsuit.

Corporate Scheduling Announcement Letter (CSAL) To Continue

Today, the chair of the National Industry Liaison Group for Affirmative Action Planning sent notice out to the regional ILG's that after a short delay, OFCCP has elected to continue sending out the Corporate Scheduling Announcement Letter (CSAL). As recently as October Pat Shiu, Director of OFCCP, stated at the National Employment Law conference in San Francisco that she would be considering the CSAL in the future but there was no clear direction at this time.

The release of the CSAL is welcome news to Federal contractors as the letter provides advance notice to the contractor regarding the number and location of establishments that can expect to receive a desk audit letter in the near future. While there has been concern from various agencies in the past that the CSAL might allow contractors to focus on compliance only in establishments where they know an audit letter may show up, it is the experience of BCG that the CSAL heightens overall compliance awareness.

Contractors should also be reminded that the previous cap of 25 establishment no longer exists and that OFCCP is not bound by the CSAL in determining which sites they may choose to audit. In the recent past, BCG has found that the desk audits typically follow the CSAL listing, although it is not a certainty that the various OFCCP regions will only audit sites on the list.

To read more about the guidelines associated with the CSAL, see the OFCCP Frequently Asked Questions link here:

http://www.dol.gov/ofccp/regs/compliance/faqs/csalfaqs.htm

The quote from the NILG regarding the pending release of a new round of CSALs is here:

"The NILG Chair confirmed with Director Shiu's office that the OFCCP will continue sending CSALs as advance notice for establishments that have been identified for potential compliance reviews. The OFCCP has stated that the next round of CSALs will be mailed out in the next two months. Please share this information with your members."

EEOC Reviews Use of Credit History as a Factor in Employee Selection

Recently, the EEOC posted a press release regarding a public meeting that was held to hear opinions about the use of credit checks as a factor in hiring decisions. There has always been significant concern in the EEO field about the use of subjective criteria in hiring and the use of credit checks as part of employee selection has been a hot topic for many years.

See Press Release posted on the EEOC website below:

http://www.eeoc.gov/eeoc/newsroom/release/10-20-10b.cfm

PRESS RELEASE
10-20-10

EEOC Public Meeting Explores the Use of Credit Histories as Employee Selection Criteria

Growing Practice Can Have Disparate Impact on African-Americans, Latinos; Are Not Predictive of Job Performance, Some Witnesses Say

WASHINGTON—The U.S. Equal Employment Opportunity Commission (EEOC) held a public Commission meeting today to hear testimony from representatives of various stakeholder groups as well as social scientists and the Federal Trade Commission on the growing use of credit histories as selection criteria in employment.

“High unemployment has forced an increasing number of people to enter or re-enter the job market,” said EEOC Chair Jacqueline A. Berrien. “As a result, an ever increasing number of job applicants and workers are being exposed to employment screening tools, such as credit checks, that could unfairly exclude them from job opportunities. Today’s discussion provided important input into our agency’s work to ensure that the workplace is made free of all barriers to equal opportunity.”

The Commission heard from a diverse set of experts. Chi Chi Wu of the National Consumer Law Center (NCLC) expressed grave concerns that the use of credit histories is mushrooming at the time of economic instability for many Americans, noting that the use of credit histories “create[s] a fundamental ‘Catch-22’ for job applicants,” especially during this period of high unemployment and high foreclosures, both of which have a negative impact on credit.” She observed, “You can’t re-establish your credit if you can’t get a job, and you can’t get a job if you’ve got bad credit.” This view was echoed by several of the witnesses.

Sarah Crawford of the Lawyers’ Committee for Civil Rights Under Law and Dr. Avis Jones-DeWeever from the National Council of Negro Women, explained that the use of credit histories in the employment context can have a disparate impact on a range of protected groups, including people of color, women, and people with disabilities. While the use of credit checks as employment screens increases, Crawford cited studies that show credit history is a poor predictor of job performance. Additionally, she pointed out that many credit reports are riddled with errors or incomplete information, a view that was echoed by Wu of the NCLC, making whatever predictive value they might have even less reliable.

Representatives from the business community—Michael Eastman of the U.S. Chamber of Commerce, Christine V. Walters of the Society of Human Resources Management (SHRM) and Pamela Quigley Devata of the law firm Seyfarth Shaw, LLP—told the Commission that the use of credit histories is permissible by law, limited in scope, and predictive in certain situations of reliability.

Walters of SHRM said that “13 percent of organizations conduct credit checks on all job candidates … [and] another 47 percent … consider credit history … for select jobs,” but for those employers, “credit histories are but one piece of the puzzle.” It is the experience of SHRM member companies that very few utilize credit histories for every single job opening. Devata asserted that the use of credit histories is driven, in part, by the need for background information on potential employees in a current environment when it is difficult to obtain any but the most basic information in job references.

However, Dr. Michael Aamodt, an industrial psychologist, said that although there is considerable research that supports the use of credit scores in making consumer decisions, there is little research exploring the implications of using credit checks in the employment context. Given the potential for discriminatory exclusion, he concluded that it would be wise to use an applicant’s credit history only within the context of a thorough background check.

This meeting is one of several throughout the year that will examine barriers to employment and their potential adverse impact on protected groups. The statements of all the panelists, along with their biographies, can be found on the EEOC’s website at http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm. A complete transcript of the testimony will be posted later.

The EEOC enforces the nation’s laws against employment discrimination. More information is available on the Commission’s website at www.eeoc.gov.

OFCCP Sends Request to Rescind Compensation Guidelines to the OMB

by Patrick Nooren
EVP Biddle Consulting Group

The OFCCP submitted an official notice to the Office of Management and Budget (OMB) of their intent to rescind the compensation analysis standards and guidelines originally published in June, 2006. This should come as no surprise to BCG clients and BCGI members given the lack of success the OFCCP has had in enforcing these standards. In hindsight, the writing should have been on the walls from the onset. While overall technically, statistically, and legally sound, requiring the Agency to use multiple regression analyses (MRA) that meet certain minimum sample size requirements to support claims of compensation disparities creates a very difficult, uphill battle for enforcement. Look for the OFCCP to issue new guidelines in the future with softened text regarding the use of multiple regression and new, additional content regarding their current enforcement tactics related to investigating individual disparities (much like Equal Pay Act investigations).

Stay tuned.

OFCCP Posts Large Settlement with Meat Processing Company

News Release posted by OFCCP on 10/21/2010.

http://www.dol.gov/opa/media/press/ofccp/ofccp20101461.htm


OFCCP News Release: [10/21/2010]
Contact Name: Elizabeth Todd or Juan Rodriguez
Phone Number: (972) 850-4710 or x4709
Release Number: 10-1461-DAL
US Labor Department settles hiring discrimination case with Tyson Refrigerated Processed Meats in Vernon, Texas

Affected job applicants to receive back wages, interest and job offers

VERNON, Texas — The U.S. Department of Labor's Office of Federal Contract Compliance Programs has announced that Tyson Refrigerated Processed Meats Inc. has agreed to settle findings of hiring discrimination against 157 African-American and 375 Caucasian applicants for laborer positions at the company's bacon processing plant in Vernon.

"The Labor Department is committed to leveling the playing field for all workers," said OFCCP Director Patricia A. Shiu. "A company that profits from taxpayer dollars must not discriminate, period."

OFCCP investigators found that African-American and Caucasian applicants were less likely to be hired than similarly situated Hispanic applicants over a two-year period.

Under the terms of the conciliation agreement, Tyson Refrigerated Processed Meats will pay a total of $560,000 in back pay and interest to the 532 applicants. Additionally, the company will make job offers to 59 of the 532 eligible class members as laborer positions become available and revise the practices, policies and procedures it uses to recruit, track and hire applicants to fully comply with the law and immediately correct discriminatory practices.

This agreement follows litigation by OFCCP involving two other subsidiaries of Tyson Foods Inc. In 2008, a Labor Department administrative law judge found that TNT Crust in Green Bay, Wis., systematically discriminated against Hispanic applicants in its hiring. In September 2010, OFCCP filed an administrative complaint against a Tyson Fresh Meats plant in Joslin, Ill., for systematically rejecting female applicants seeking entry-level positions.

OFCCP, an agency of the U.S. Department of Labor, enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 that prohibit employment discrimination by federal contractors. The agency monitors federal contractors to ensure that they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veteran status.

OFCCP Lands Large Settlement in Discrimination Case

The Associated Press has reported that the OFCCP has landed a large settlement in another hiring case. See posting from NY Times below:

NC Bottler to Pay $495K on Discrimination Claims
By THE ASSOCIATED PRESS
Published: October 7, 2010

"CHARLOTTE, N.C. (AP) — The second-largest bottler of Coca-Cola products in the nation will pay $495,000 to settle a federal case involving charges of racially discriminatory hiring practices.

The Coca-Cola Bottling Company Consolidated, a Charlotte-based firm that is separate from the Atlanta-based Coca-Cola Company, will pay the money in back wages plus interest to 95 black and Hispanic jobseekers who applied for sales positions in 2002, according to the U.S. Department of Labor.

In addition, the bottler has agreed to offer jobs to those applicants until at least 23 are hired.

The labor department's Office of Federal Contract Compliance Programs said an investigation determined that qualified nonwhite applicants were not being hired at the same rate as qualified white applicants. In some cases, the black and Latino applicants had more experience and education than some of the whites who did get jobs, according to the agency.

The office launched the investigation because the bottler is a federal contractor, supplying Coke-brand products to a number of military and government agencies.

"Being a federal contractor is a privilege that comes with an obligation to ensure equal opportunity in employment," said Patricia Shiu, director of the contract compliance office, in a statement.

The bottler agreed to the settlement, but admits no wrongdoing in the case, according to a statement provided by Alison Patient, director of corporate affairs at the company."

"Coca-Cola Bottling Co. Consolidated did not and does not discriminate against any person for any reason," the statement said. "There were legitimate non-discriminatory reasons for not hiring certain applicants who are the subject of this claim."

Bringing back the EO Survey?

The U.S. Department of Labor (DOL) is interested in bringing back the Equal Opportunity (EO) Survey even if the Paycheck Fairness Act (PFA), which requires one half of federal contractors to receive the EO survey yearly, is not overhauled. On the other side, the Office of Federal Contract Compliance Program (OFCCP) is seeking input from stakeholders on how to improve the Survey and what new data should be implemented on the upcoming version. Though nothing is certain, rather than asking “If” the survey is coming back, we should be asking “When” and in what form; the original or a modified version.

The purpose of the EO survey, as stated in CFR 41 60-2.18 (a) was to “provide the OFCCP compliance data early in the compliance evaluation process, thus allowing the agency to more effectively identify contractor establishment for further evaluation.” The survey first came out during the Clinton administration but during the Bush administration, OFCCP stopped using the EO Survey due to the results of a study by Abt Associates Inc. that revealed that the survey was not a valid tool for predicting systemic discrimination. Though this study was criticized by many as being flawed, the EO survey was still discontinued.

The survey itself was required to be completed and submitted back to the OFCCP within 45 days of notice. It was estimated to take about 21 hours (on average), but often took double or even triple that time. Federal contractors with multiple locations were struggling to put this information together while working on their Affirmative Action Plans as well. Imagine having 500 sites and being required to complete at least 250 (50%) surveys on those sites in 45 days.

Some of the flaws that were found on the original survey included: survey did not ask for data information on part-time employees even though Affirmative Action Plans do include this information. Also, it asked contractors to identify the full/part time status of their applicants, though most contractors rarely keep track of FT/PT applicant status.

Furthermore, the definition of an applicant is outdated and the new internet applicant regulations need to be employed.

Finally, the compensation section has garnered some special concern; the survey required compensation data by the old (9) EEO category or affirmative action job group, rather than the new (10) EEO categories. The issue becomes apparent when analyzing the compensation data because it is without a doubt that a CEO will significantly earned more than an office supervisor. But under the old rubric both are considered EEO 1 – Officials and Managers. Many have proposed aggregating the EO survey over the new 10-category system in the same way the 2007 overhaul of the EEO-1 did.

Announced September 28th by Secretary of Labor Hilda L. Solis, the DOL needs to collect more data to ensure fair and equitable pay, especially in regards to women. She did not state what additional data they would like, but it may mean additional recordkeeping on the part of those required to fill out the survey.
There is little question about if it’s coming back, but when, and what this means for federal contractors. This brings us back to our original question: what changes could the revised EO survey bring to federal contractors? Once revised the EO survey can become a very useful tool. OFCCP could likely throw out their current 16 factor algorithm that helps them pinpoint who and what location to audit. Meaning that if a federal contractor’s survey looks good, and audit can be avoided. Let’s just hope that this time, the average time to complete this entire process is consistent with what is stated and a suitable time frame will be provided.

Pat Shiu Speak On Federal News Radio About Pay Equity

Shortly after the National ILG, Pat Shiu spoke on Federal News Radio about her concerns related to pay equity in the U.S.

Considering the many proposed changes coming from the Department of Labor related to pay equity analyses, the EO Survey and the 2006 compensation guidelines, we know that the Federal contractor community is anxious to know the future direction that OFCCP is taking. Please click on the link below to read what Ms. Shiu has to say in addition to a link to the recorded interview.

http://federalnewsradio.com/?sid=2026780&nid=15&_hw=ofccp

OFCCP Posts new Frequently Asked Questions (FAQ) for Executive Order 13496

The OFCCP has added a new category under their Frequently Asked Questions section related to the new posting laws. See link and introduction below.

http://www.dol.gov/ofccp/regs/compliance/EO13496_faqs.pdf


EXECUTIVE ORDER 13496 FREQUENTLY ASKED QUESTIONS

I. General

What is Executive Order 13496?

Executive Order 13496 (EO 13496 or Order) was signed by President Obama on January 30, 2009. 74 FR 6407 (February 4, 2009). EO 13496 requires that Federal contractors provide notice to their employees of their rights under Federal labor laws.

Specifically, the Order requires that covered contractors provide notice of employee rights under the National Labor Relations Act (NLRA), the law that governs relations between unions and employers in the private sector. The NLRA guarantees the right of employees to organize and to bargain collectively with their employers, to engage in other protected concerted activity with or without a union, or to refrain from all such activity.

New Interim Rule: Executive Compensation

On July 8, 2010, the Federal Government, the Civilian Agency Acquisition Council, and the Defense Acquisition Regulations Council published an interim rule [75 Fed. Reg. 37414-20] amending the Federal Acquisition Regulation to implement the Federal Funding Accountability and Transparency Act of 2006 (as amended by the Government Funding Transparency Act of 2008). The interim rule¹ requires many federal contractors and subcontractors to report and make publicly available the total compensation of their top five executives. The prime contractors are required to report executive compensation information for themselves as well as their first-tier subcontractors. It becomes the responsibility of the prime contractors to inform all first-tier subcontractors about the new executive compensation provisions and obtain the needed information to fulfill their reporting obligations.

To ease the compliance burden on agencies and contractors, the government is slowly phasing in the requirements relating to reporting provisions for subcontractors. The phase-in reporting will be made according to the specified dates below:

• From July 8, 2010 through September 30, 2010, any newly awarded subcontract must be reported if the prime contract award amount was $20 million or more.

• From October 1, 2010 until February 28, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $550, 000 or more and

• Starting March 1, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $25,000 or more.

New Data on Disabled in the Labor Force

Today the Bureau of Labor Statistics (BLS) released a detailed overview on the employment of Persons with a Disability: Labor Force Characteristics, 2009. This is the first time the BLS has conducted extensive research on disabled persons in the US workforce. The information was gathered from a monthly survey of about 60,000 households that provided statistics on employment and unemployment in the United States. Below are some highlights of the study:

• For all age groups, the employment-population ratio was much lower for persons with a disability than for those with no disability

• The unemployment rate of persons with a disability was well above the rate of those with no disability

• Nearly one-third of workers with a disability were employed part time, compared with about one-fifth of those with no disability

Given these findings, US Secretary of Labor Hilda L. Solis is determined to increase the number of persons with disabilities into the US workforce. Her mission statement is sure to increase what is expected from federal contractors regarding outreach and accommodations for the disabled, “We will use this information to help increase service capacity and accessibility to workforce development systems including one-stop-career centers and ensure that people with disabilities have access to employment support, transportation, housing, and other support services. We will make sure that people who want to work can work.”

In related news, the OFCCP has been shifting more focus to the effectiveness of Action Oriented Programs, which is why it is crucial for federal contractors to be as proactive and involved as possible with their outreach programs. Below is a list of resource sites employers can use to help incorporate persons with disabilities into their workforce.

• http://www.business-disability.com/services.aspx
• http://askjan.org/cgi-win/TypeQuery.exe?902
• http://www.earnworks.com
• http://jobaccess.org/
• http://www.gettinghired.com/Employers.aspx

Click here to read the full BLS report http://www.bls.gov/news.release/disabl.nr0.htm

New BCG Book: Compensation Analysis: A Practitioner’s Guide to Identifying and Addressing Compensation Disparities

August 2010 Press Release

Biddle Consulting Group has released a new book on compensation analysis written by the team that brought you "Adverse Impact and Test Validation, 2nd Ed., as a practical guide for HR professionals."

Federal enforcement of compensation equity laws and regulations is on the
rise. Biddle Consulting Group’s Compensation Analysis: A Practitioner’s Guide
to Identifying and Addressing Compensation Disparities was written for all
levels of HR Generalists, Compensation Analysts, Attorneys, and Consultants.
Focus is on providing the reader with practical, understandable guidance on
how to identify and address areas of potential legal exposure. If you want just
one resource on compensation disparities . . . this is the one!

To order your copy, contact Nancy Tipton at 1-916-294-4250 x175 or email at ntipton@biddle.com

OFCCP celebrating 45th Anniversary of the Executive Order 11246

Posted by OFCCP on August 25th, 2010

Join the U. S. Department of Labor - OFCCP in celebrating its 45th Anniversary of the Executive Order 11246 on September 24, 2010, Friday, 8:30 a.m. – 12 p.m., in San Francisco (90 7th Street, Room B-040). RSVP by September 21, 2010, via email nelson.sarah@dol.gov or call Sarah Nelson at (415) 625-7822.

OFCCP Director Keynote Address Posted on OFCCP Homepage

OFCCP has posted the Keynote speech that Patricia Shiu gave at the 2010 National ILG. Ms. Shiu set the tone for upcoming OFCCP activities related to audits, compensation, updating the regulations and more in 2010/2011. See the entire text here:

Director Shiu Delivers Keynote Address at NILG Conference

http://www.dol.gov/ofccp/Director_address_to_NILG_Aug042010.htm

National Indusry Liaison Group (NILG) Conference Summary and Discussion

Join BCG Institute for Workforce Development for a panel discussion regarding the high points and important issues discussed at the 2010 National Industry Liaison Group (NILG) meeting in Las Vegas. Learn about possible changes to the OFCCP's Compensation Analysis Guidelines, EEO compliance standards and guidelines, and upcoming issues of importance to the EEO and federal contractor community.


Wed, Aug 18, 2010 1PM-2PM Eastern/10:00AM - 11:00AM Pacific Time

Register here:

https://www2.gotomeeting.com/register/531163811

NILG Notes - OFCCP Changing Direction Regarding Compensation Analysis Strategy

OFCCP Update August 9, 2010.

Dr. Javaid Kaiser gave a presentation on "How should the Contractor Prepare When Compensation Disparity is Found at the Desk Audit Stage?" at the National ILG conference in Las Vegas last week and while BCG Institiute will be giving a more formal presentation on all the NILG news shortly, we wanted to get a few notes posted right away.

1. The OFCCP intends to rescind the current compensation analysis guidelines and release new guidelines in the near future. The OFCCP is considering a new strategy as the current standards are not producing results.

2. The "Red-Flag/Trigger Test" is also no longer being used. This was clear and it makes sense for many reasons that BCG will review in our NILG wrap-up webinars being scheduled now.

3. The concept of Similarly Situated Employee Groups "SSEGs" is still alive and well. It was clearly noted that "Similar does NOT mean equal" and a job group may be a SSEG if skills, responsibilities and job complexity are similar.

4. Employers should be looking for all of the variables that affect pay, not just the 12 Factors that OFCCP requests.

5. A few factors that may trigger a request for detailed compensation data are: large differences in pay, an employee complaint, missing data, inacurrate data, bad coding of data, and data that is unecessarily splintered.

6. Pay differences are being evaluated on a case-by-case basis. This is creating a lot of anxiety in the industry and there are specific reasons why the trigger test is not effective for identifying significant differences in compensation. In the Friday morning session, BCGi's Dr. Patrick Nooren discussed why people should not be dependent on tools such as a Trigger Analyses to identify potential pay issues. Be sure to attend our NILG wrap up and our repeat of the BCGi presentation to learn why.

OFCCP Seeking Public Comments to Review Section 503 of the Rehabilitation Act

OFCCP releases link asking the public to provide input on upcoming review of the regulations associated with Section 503 of the Rehabilitation Act. See links posted on 7/23/2010.

From OFCCP:

The Office of Federal Contract Compliance Programs (OFCCP) is pleased to provide you with this direct link to the Advance Notice of Proposed Rulemaking (ANPRM) impacting Section 503 of the Rehabilitation Act of 1973 on regulations.gov at:

http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480b1fd5a.

As a reminder, you can find more information on this rulemaking process in our Frequently Asked Questions at http://www.dol.gov/ofccp/regs/compliance/sec503/sec503_frequently_asked_questions.htm.

OFCCP welcomes your participation and looks forward to your input.

OFCCP Provides Advance Notice of Proposed Rulemaking and Possible Changes to Section 503 of the Rehabilitation Act

See OFCCP posting July 22, 2010:

The Office of Federal Contract Compliance Programs (OFCCP) is pleased to provide you with this notice of its upcoming publication -

Advance Notice of Proposed Rulemaking (ANPRM) impacting Section 503 of the Rehabilitation Act of 1973

We anticipate that the ANPRM will be published tomorrow, Friday, July 23, 2010, of which you may find a copy at www.regulations.gov or at http://www.dol.gov/ofccp/regs/compliance/sec503/Sec503_ANPRM.htm.

For more information on this rulemaking process, please click on the following Frequently Asked Questions link at http://www.dol.gov/ofccp/regs/compliance/sec503/sec503_frequently_asked_questions.htm. In addition, we are forwarding you a copy of the Press Release announcing our new ANPRM – http://www.dol.gov/opa/media/press/ofccp/ofccp20101015.htm.

OFCCP welcomes your participation and looks forward to your input!

Recent OFCCP Audit Focus: VEVRAA and JVA Compliance

As the OFCCP continues to aggressively audit contractors on issues that were not as thoroughly investigated in the past, contractors must be aware of the current regulations to be prepared in the likely event an audit letter arrives on their desk. The Jobs for Veterans Act (JVA) and Vietnam Veterans’ Readjustment Act (VEVRAA) amendments in 2003 created a shift in focus from OFCCP, particularly related to job posting compliance. The JVA amendments made three significant changes to the Affirmative Action requirements of VEVRAA:

1. The threshold dollar amount for contracts raised from $25,00 to 100,000 for contractors that must be covered with an affirmative action plan
2. The list of covered veterans has been redefined from special disabled veterans, newly separated veterans, other protected veterans, and veterans of the Vietnam era to disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans.
3. The cut-off date for following the new regulations is December 1, 2003. Therefore, if a contractor had a contract with $25,000 or more before December 31, 2003 and one of $100,000 or more after December31, 2003 the contractor must comply with both.

With the new amendments and overhaul of regulations, auditors are no longer accepting a generic list of outreach programs to verify compliance. Contractors are now expected to prove to the OFCCP that they are making good faith efforts to place veterans into their workforce by showing detailed documentation of all programs being used to attract veterans. Furthermore, contractors are responsible for being able to determine which programs are working and which programs are not working in order to abandon any programs that don’t have an impact. The intent is to show focus on efforts that do demonstrate results. To stay proactive with their affirmative action plan with regards to veteran recruitment, contractors can use specific sites targeted towards reaching veterans:

The following links provide free job postings for employers aiming to attract veterans:
• http://www.hirepatriots.com
• http://www.hireheroesusa.org
• http://www.jobarsenal.com
• http://www.nvf.org
• http://www.militaryconnection.com

The following links provide resources such as career events and priced job postings for employers aiming to attract veterans:
• http://www.hirevetsfirst.dol.gov
• http://www.edd.ca.gov
• http://www.recruitmilitary.com
• http://www.military.com
• http://www.gijobs.com
• http://www.jobbankinfo.org
• http://www.usajobs.com
• http://www.militaryjobzome.com
• http://www.militarystars.com
• http://www.hireahero.com
• http://www.jobs.vetfriends.com

The Benefits of a Conducting an On-Site Mock Audit

Why should a federal contractor consider an onsite mock audit? With the current OFCCP administration, we have seen compliance officers who conduct onsite audits regardless of whether potential problem indicators exist or not (in fact, Active Case Management is no longer being practiced by the OFCCP). In several audits and separate local ILG meetings, OFCCP representatives had also stated that on-site audits are now part of OFCCP’s standard practice. So, how can an employer get better prepared for the inevitable on-site visit from a compliance officer in case of an audit? Let’s evaluate the benefits of conducting an “onsite mock audit”.

An on-site mock audit is a dry-run of the actual OFCCP on-site visit (of course, without the presence of the OFCCP Compliance Officer). In an on-site mock audit, employers need to anticipate the scenarios and questions that they think might occur during the actual on-site audit.

Following are some common scenarios during an on-site audit. Each scenario is followed by reason(s) why conducting mock audit prior to the OFCCP’s actual visit date will prove beneficial:

1. The compliance officer will tour the facility – the mock audit can reveal potential deficiencies in, but not limited to, the following areas:
o Required posters are not posted in conspicuous places (e.g., common areas)
o Areas that are not accessible to employees/applicants with mobility impairments
o Unpleasant and/or hazardous work conditions
o Employees not exercising safety measures set forth by the organization

2. The compliance officer will hold formal and informal interviews with employees and HR Managers – the mock audit can reveal deficiencies in, but not limited to, the following areas:
o Some employees are not aware of the employer’s sexual harassment policies
o Some employees are not aware of the measures set by the organization to ensure safety while performing the necessary work
o Employees and managers are not aware of the terms EEO or AA
o Managers are not aware of the affirmative action programs

3. The compliance officer will review personnel data and supporting documentation with regards to some personnel decisions - the mock audit can reveal deficiencies in, but not limited to, the following areas:
o Lack of or insufficient data (e.g., are all the hires in the applicant file, record-retention obligations, etc.)
o Lack of or insufficient documentation to support personnel decisions
o Lack of proper documentation (or disposition) on who were considered as applicants
o List of employees who self identified as veterans or with disability

4. The compliance officer will review outreach programs - the mock audit can reveal deficiencies in, but not limited to, the following areas:
o Lack of proper documentation on the outreach programs (who or which organization were contacted? What are the results of such programs? etc.)
o Did the outreach programs prove to be effective?

These are just some of the things that can help an organization be prepared for that “on-site day.” Being well prepared for the on-site can minimize any anxieties that the executives, managers, supervisors, and employees may have regarding the visit. A mock audit can also foster confidence which should minimize inconsistent responses to the compliance officer and hopefully, result in a less “painful” visit.

OFCCP Celebrating Their 45th Anniversary

E-mail sent from the Dept. of Labor on June 30, 2010

OFCCP Looks Ahead to 45th Anniversary of E.O. 11246

On September 24, 1965, President Lyndon B. Johnson signed Executive Order (EO) 11246 ringing in a new era of nondiscrimination and affirmative action requirements for those companies doing business with the Federal Government. OFCCP plans to highlight this important milestone and celebrate its accomplishments toward making America’s workplaces diverse and free of discrimination. Preliminary ideas include hosting special events around the nation, developing educational materials, engaging the media and getting the word out via OFCCP’s Web site, webinars and social media tools. OFCCP encourages all organizations to join in this celebration by promoting the importance of preventing workplace discrimination and highlighting their successes in doing so. Furthermore, OFCCP is collecting personal stories from individuals who have been positively impacted by EO 11246 or OFCCP’s work. For more information, or if you would like to contribute a story, please e-mail OFCCP-Anniversary@dol.gov.

OFCCP Settles Hiring Discrimination case with The Wackenhut Corp.

The OFCCP has posted a News Release regarding their settlement with The Wackenhut Corporation for $290,000.

OFCCP News Release: [06/09/2010]
Contact Name: Rich Kulczewski
Phone Number: (303) 844-1302
Release Number: 10-0736-DEN

US Department of Labor settles hiring discrimination case with The Wackenhut Corp. in Aurora, Colo.
Company agrees to pay $290,000 to 446 African-American job applicants

DENVER — The U.S. Department of Labor's Office of Federal Contract Compliance Programs has announced that The Wackenhut Corp., doing business as G4S Wackenhut, has entered into a consent decree to settle findings of hiring discrimination at its Aurora, Colo., facility. The consent decree settles OFCCP's allegations that Wackenhut engaged in hiring discrimination against 446 rejected African-American applicants for the position of traditional security officer for a two-year period. Wackenhut is headquartered in Palm Beach Gardens, Fla.

"The department is committed to ensuring that federal contractors and subcontractors hire, promote and compensate their employees fairly, without respect to their race, gender, ethnicity, disability, religion or veteran status," said Patricia A. Shiu, director of OFCCP, who is based in Washington, D.C. "This settlement of $290,000 in back pay on behalf of 446 African-Americans should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination."

OFCCP investigators found that the company engaged in hiring discrimination against African-Americans from Jan. 1, 2002, through Dec. 31, 2003. Under the terms of the consent decree and order, filed with the U.S. Department of Labor's Office of Administrative Law Judges, Wackenhut will pay a total of $290,000 in back pay and interest to the 446 rejected African-American applicants and will hire 41 of the applicants into traditional security officer positions. The company also agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law and will immediately correct any discriminatory practice. In addition, Wackenhut will ensure compliance with Executive Order 11246 recordkeeping requirements.

"We strongly encourage other employers to take proactive steps to come into compliance with the law to prevent workplace discrimination," said Melissa Speer, OFCCP acting director of OFCCP's Southwest and Rocky Mountain Regions, who is located in Dallas.

OFCCP, an agency of the U.S. Department of Labor, enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 that prohibit employment discrimination by federal contractors. The agency monitors federal contractors to ensure that they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veteran status.

Job Posting Requirements and Handling Temp Jobs

One of the most talked about areas of EEO compliance in 2010 is Job Posting Requirements. As contractors continue to try and work with the updated expectations, a lot of questions are coming up about exemptions to the standard requirements. One area of concern in particular is how to handle temp jobs, and whether or not posting for these jobs is necessary. BCG would like to emphasize that OFCCP to date has been clear that the only exemptions are the ones clearly spelled out under the Jobs for Veterans Act (JVA).

The website is here:

http://www.dol.gov/ofccp/regs/compliance/faqs/jvafaqs.htm

Listed here is the OFCCP's response to the question regarding posting requirements for temporary positions and linking jobs to the employers' site:

Is a contractor required to list temporary positions?

Employment openings subject to the mandatory job listing requirement include all positions except:

1) executive and top management positions
2) positions that will be filled from within the contractor's organization
3) positions lasting three days or less.

All other employment openings, including those for full-time employment, temporary employment of more than three days' duration, and part-time employment, are subject to the mandatory listing requirement.

Can a contractor satisfy the job listing requirement by sending to the appropriate employment delivery system a link to a specific job opening posted on the contractor's website?

States have prescribed a variety of procedures for listing job openings and a particular state may permit listing in its employment service delivery system by more than one method. A contractor may satisfy its mandatory job listing obligations under VEVRAA by sending an email message to the local employment service office or the appropriate employment service delivery system that includes a link to a specific job opening on the contractor's website, if this is a method permitted by the employment service delivery system for listing job openings. The mandatory job listing obligation requires that the contractor provide information about an employment opening in the manner prescribed by the employment service delivery system for listing employment openings in the system. The contractor must provide information that is sufficient to allow the appropriate employment service delivery system to carry out its responsibilities under VEVRAA to give protected veterans priority in referrals to federal contractor employment openings.

2010 EEO File Census Data Update and Release Date

Many have questioned why their occupation information was not solicited as part of the 2010 census survey. The occupation and EEO information questions have been moved to become part of the American Community Survey (ACS) 2006-2010. The American Community Survey is an ongoing survey that is sent to a sample of the population to help tell us what the population looks like and how it lives.

The 2010 EEO File will be similar to the 2000 EEO File. One major difference is that the 2010 EEO File will be created from a five-year roll-up of American Community Survey data, e.g., ACS data from 2006 through 2010.

The data from the 2010 EEO File and the means for accessing it will not be available for public or private sector use until the Fall of 2012 as opposed to the Fall of 2011, as originally planned.


For more information on the ACS, please visit, http://www.census.gov/acs/www/.

BCG Institute for Workforce Development to speak at National ILG in August

BCG Institute for Workforce Development (BCGi) is pleased to announce that we have been selected as speakers for the National Industry Liaison Group conference being held at the beautiful Red Rock Resort in Las Vegas, Nevada in August 2010. BCGi will be hosting a half-day session on Compensation Analysis during the Pre-Conference and we will be hosting a session on managing OFCCP audits on the final day of the conference.

Here is a link to the conference site and details about the BCGi presentations are listed below.

http://www.ilgnvegas2010.com/agenda.html

Pre-Conference on Tuesday, August 3, 2010
1:30 pm - 4:30 pm
BCG Insitute for Workforce Development - From Theory to Practice: Learning Compensation Analysis in a Classroom Setting (Jim Higgins, Ed.D.)

and

Concurrent Session on Friday, August 6, 2010
9:00 am - 10:00 am
BCG Institute for Workforce Development - Taking on the tough problems in an OFCCP audit: Solutions to the most challenging issues for all contractors (Patrick Nooren, Ph.D. Executive Vice-President)

OFCCP Puts New FAAP Requests on Hold

The OFCCP has posted a new link on their website that places all new Functional Affirmative Action Plan (FAAP) requests on hold until further notice. See details below.

http://www.dol.gov/ofccp/FAAP_Notice.htm

Office of Federal Contract Compliance Programs (OFCCP)

FAAP Notice

OFCCP is not accepting any new requests to develop or to renew Functional Affirmative Action Program (FAAP) agreements at this time. The agency is currently reviewing its policies regarding the FAAP process. We will issue new guidance in the near future. Until such guidance is issued, contractors without FAAP agreements should continue to develop and maintain establishment-based AAPs. Contractors with approved FAAP agreements should maintain their functional unit AAPs and operate under their current FAAP agreement. If significant changes occur in the normal order of business for contractors with existing FAAP agreements, such as mergers, acquisitions, divestures, and recent changes, these should be reported to the FAAP Director for appropriate actions, as per the agreement. OFCCP will notify contractors when new guidance is published.

OFCCP Adds Additional Webinar to Assist Contractors with New Regulation

OFCCP added a second session to help contractors comply with the new posting requirements under Executive Order 13496.

OFCCP - How To Comply With Executive Order 13496

Under a new Department of Labor regulation published on May 20, 2010, effective June 21, 2010 Federal contractors and their subcontractors are required to post notices informing employees of their rights under the National Labor Relations Act (NLRA).

These regulations implement Executive Order 13496, signed by President Obama on January 30, 2009, and require federal contractors to agree to post the required employee notice and to agree to insert provisions in their subcontracts that require their subcontractors to post the employee notice as well. The employee notice that must be posted and the contract provisions that must be inserted into Federal contracts and subcontracts can be found at 29 C.F.R. Part 471 Appendix A.

Please join the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) as we conduct a webinar for Federal contractors and subcontractors to provide them with information about how to comply with this new regulation.

This webinar is approximately 1.5 hours long that includes 30 minutes of Q&A opportunities. We invite you to e-mail us your questions in advance of the webinar.

Register for a session now by clicking a date below:

Thu, Jun 3, 2010 2:00 PM - 3:30 PM EDT
https://www1.gotomeeting.com/register/696425736

Thu, Jun 10, 2010 2:00 PM - 3:30 PM EDT
https://www1.gotomeeting.com/register/353916688

Once registered you will receive an email confirming your registration
with information you need to join the webinar.

System Requirements
PC-based attendees
Required: Windows® 7, Vista, XP, 2003 Server or 2000

Macintosh®-based attendees
Required: Mac OS® X 10.4.11 (Tiger®) or newer

Evaluating the Legal Defensibility of Regression Models Designed to Investigate and Remediate Pay Disparities: Lessons from Rudebusch v. Hughes

By Dan A. Biddle, Ph.D.

“…some employers have been concerned with the potential of “reverse discrimination” or Equal Protection-based lawsuits that may arise after making pay adjustments to a given group. Faced with liability from potential class action suits or audits from “classical” pay disparity issues on one side and Equal Protection cases on the other, some employers view themselves in a “pickle.” Indeed, some employers that act in good faith to conduct (and later act upon) proactive pay equity studies may find themselves open to an Equal Protection suit from the group that received no pay changes.

When the courts evaluate such circumstances, some have extracted three criteria from the U.S. Supreme Court case, Johnson v. Transportation Agency[i]: (1) evaluating whether a “manifest imbalance” exists (which typically includes statistical significance as a minimum threshold); (2) evaluating whether the rights of individuals who were not part of the remedial pay were “unnecessarily trammeled”; and (3) evaluating whether the remedial pay adjustments were along the lines necessary to “attain a balance.”[ii] The Johnson decision also dictates that the burden shifts to the employer to provide a nondiscriminatory rationale for its decision after the plaintiff demonstrates that sex was taken into account in an employer’s employment decision. The employer can establish such a rationale by pointing to an existing affirmative action plan.

When applying the Johnson framework to an Equal Protection pay case, the Ninth Circuit in Rudebusch pointed out that previous Appellate Courts (both the Fourth and Eighth Circuits) have adopted the Johnson approach in their analysis of pay equity claims. While agreeing that the Johnson case provided the proper framework for a pay equity case, they noted that there were “some significant conceptual differences between affirmative action in the promotional context and remedial measures used to cure pay inequity (p. 25)” because the Johnson case involved voluntary affirmative action efforts for promotional decisions—which is quite different than pay equity.
There are two major lessons that can be learned from the Rudebusch case. First, before making pay adjustments to a group, be sure the regression model clearly shows that the gender or race variable is statistically significant after controlling for job qualification factors. Second, make sure that the regression model is sound, accurate, and reliable..."

To view the full article, please click here:

http://www.biddleaap.com/docs/Rudebusch_Lessons.pdf

New OFCCP Webinar To Help Contractors Comply With EO 13496

OFCCP has posted a new webinar to be held on June 3rd, 2010, See registration link below.

From OFCCP e-mail dated 5/25/2010:

Under a new Department of Labor regulation published on May 20, 2010, effective June 21, 2010 Federal contractors and their subcontractors are required to post notices informing employees of their rights under the National Labor Relations Act (NLRA).

These regulations implement Executive Order 13496, signed by President Obama on January 30, 2009, and require federal contractors to agree to post the required employee notice and to agree to insert provisions in their subcontracts that require their subcontractors to post the employee notice as well. The employee notice that must be posted and the contract provisions that must be inserted into Federal contracts and subcontracts can be found at 29 C.F.R. Part 471 Appendix A.

Please join the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) as we conduct a webinar for Federal contractors and subcontractors to provide them with information about how to comply with this new regulation.

This webinar is approximately 1.5 hours long that includes 30 minutes of Q&A opportunities. We invite you to e-mail us your questions in advance of the webinar.

Title: OFCCP - How To Comply With Executive Order 13496

Date: Thursday, June 3, 2010

Time: 2:00 PM - 3:30 PM EDT

Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/696425736


After registering you will receive a confirmation email containing information about joining the Webinar.

OFCCP Updated Notification Requirements Per Executive Order 13496

On Wednesday May 19th, OFCCP sent out an e-mail identifying a new regulation regarding posting requirements under the National Labor Relations Act (NLRA). See below for details.

Please see the OFCCP Powerpoint slides on their homepage. There is a "New" icon on the lower right side of the page.

http://www.dol.gov/ofccp/index.htm

Copy of e-mail from OFCCP:

New Employee Notification Requirements for Federal
Contractors and Subcontractors:
OFCCP Will Present Webinar on Compliance Fundamentals

Under a new Department of Labor regulation to be published tomorrow, beginning on June 19, 2010 Federal contractors and their subcontractors are required to post notices informing employees of their rights under the National Labor Relations Act (NLRA). On June 3, 2010, Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will present a webinar for Federal contractors and subcontractors to provide them with information about how to comply with this new regulation. For more information about the webinar subscribe to OFCCP’s E-mail updates at http://www.dol.gov/OFCCP/.

These regulations implement Executive Order 13496, signed by President Obama on January 30, 2009, and require federal contractors to agree to post the required employee notice and to agree to insert provisions in their subcontracts that require their subcontractors to post the employee notice as well. The employee notice that must be posted and the contract provisions that must be inserted into Federal contracts and subcontracts can be found at 29 C.F.R. Part 471 Appendix A.

The notice to employees, required by the new regulation, informs employees about their rights under the NLRA to form, join and assist a union, and to bargain collectively with their employer. The notice provides examples of unlawful employer and union conduct that interferes with those rights and indicates how employees can contact the National Labor Relations Board, the Federal agency that enforces those rights, with questions or to file complaints. Contractors that violate the Labor Department’s regulations requiring employee notification of these rights may be subject to sanctions, including suspension or cancelation of the contract.

Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees who are covered by the NLRA and who engage in contract-related activity. In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted. Contractors and subcontractors who post notices to employees electronically must also post the required notice electronically, which requires posting a link to the Department of Labor’s website containing the employee notice where they customarily place other electronic notices to employees about their jobs. Where a significant portion of contractor's workforce is not proficient in English, contractors and subcontractors must provide the employee notice in languages spoken by employees, and the Department will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements.

Here is the link to where you can download the new posting requirement as well as additional information on the new EO.

http://www.dol.gov/olms/regs/compliance/EO13496.htm


Executive Order 13496 Notice of Employee Rights, in Adobe Reader (.pdf) format, can be downloaded from the link below. If you are not able to download the notice, or if you seek a hard copy of the notice, you can send a request to olms-public@dol.gov or call (202) 693-0123. Contractors may also reproduce and use exact duplicate copies of the official notice.
• Notice of Employee Rights Under Federal Labor Laws - 11x17-inch one-page format (PDF)
• Notice of Employee Rights Under Federal Labor Laws - 11x8.5-inch two-page format (PDF)
To use one of these files as a poster for your place of employment, please follow these instructions:
The files are only available in PDF format. In order to view and/or print PDF documents you must have a PDF viewer (e.g., Adobe Acrobat Reader) available on your workstation. Click on the PDF link for one of the Notice of Employee Rights Under Federal Labor Laws posters above and wait for it to load into the viewer.
1. The size of the poster must be 11x17 inches or larger.
2. If you have a printer capable of printing to 11x17 inch paper, download the poster in the 11x17-inch one-page format. Be sure to select that paper size when printing.
3. If you do not have a printer that is capable of 11x17 prints, download the poster in the 11x8.5-inch two-page format. When printing, please ensure that the Page Scaling box reads: Scale to Printer Margins and you have checked the Auto-Rotate and Center box. The poster will print two 11x8.5-inch landscape pages that must be taped or pasted together to form the 11x17 inch poster.”

Paying attention to the OFCCP Frequently Asked Questions re: Applicants

As the OFCCP continues to delve deeper into the details associated with Federal Contractors' hiring process, it is crucial to pay close attention to all of the recordkeeping requirements and expectations, especially during an audit. Sometimes, if not often, it can be very difficult to make sure that applicant logs contain all of the right data, especially when the definition of an applicant continues to be under the microscope. BCG has found the Frequently Asked Questions on the OFCCP website to be very helpful. However, there are times when a contractor needs to pay close attention to the details because the responses can be confusing and easily misinterpreted.

See two of the responses below from OFCCP about withdrawal from consideration. The real question is, "at what point can you take someone out of the applicant pool if they appear to have withdrawn from the process?" In the original definition immediately below, it would seem clear that once an offer is made, that person is an applicant. While that definition may seem simple (even logical), if a reader looks further down the list of questions they will see that there is a question about rules for considering a candidate to be withdrawn and it appears to say that a rejected offer is a form of withdrawal. Is this a contradiction?

So, to the contractor we suggest caution. BCG would not remove a candidate that received an offer from the overall analyses. Although if dispositioned correctly, the contractor can conduct analyses of applicants to hires as well as applicants to offers and see how they differ. Removing a candidate to whom a contractor made an offer sounds awfully risky to us. Remember, detailed disposition coding is the key to good data and accurate analyses.

Original definition from OFCCP website listed here:
http://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm

What is the definition of an "Internet Applicant" in the final rule?

An Internet Applicant is defined as an individual who satisfies the following four criteria:

• The individual submits an expression of interest in employment through the Internet or related electronic data technologies;


• The contractor considers the individual for employment in a particular position;


• The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and,


• The individual at no point in the contractor's selection process PRIOR TO RECEIVING AN OFFER of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

WITHDRAWAL FROM CONSIDERATION:

How can a contractor determine that an individual has indicated that he or she is no longer interested in the position?

The Internet Applicant rule explains that a contractor may conclude that an individual has removed himself or herself from the selection process or has otherwise indicated lack of interest in the position based on the individual's express statement or on the individual's passive demonstration of disinterest. For example, passive disinterest may be shown by:

• Declining a contractor's invitation for a job interview;


• DECLINING A JOB OFFER; or


• Repeatedly failing to respond to a contractor's telephone inquiries or emails asking about his or her interest in a job.

A contractor may also presume a lack of continuing interest based on a review of the job seeker's expression of interest. For example, statements pertaining to (1) the individual's interest in the specific position or type of position at issue, (2) the location of work, or (3) his or her salary requirements, may provide the basis for determining the individual is no longer interested in the position, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers.

Commonly Requested Information by the OFCCP after the Affirmative Action Plan (AAP) is submitted (Desk Audit Stage)

By Nina Le-Tse

In the past, the OFCCP focused on systemic discrimination and when auditing a Federal contractors, they would typically only request additional information if a potential problem area existed in the selection process (hiring) and/or compensation. Under the new Administration, the OFCCP is no longer just looking for systemic discrimination, but for overall compliance with the AA laws and regulations as well. At a local Town Hall meeting in San Francisco, CA, Director Patricia A. Shiu stated that “being a federal contractor is a privilege not a right”; therefore, all Federal contractors are obligated to strictly follow the regulations set forth by the OFCCP.

Biddle Consulting Group has supported more desk and on-site audits in the past six months than in the previous two years. This shows that the new administration is aggressively practicing what they preach.

If you have been audited in the past six months, you may have noticed that the compliance officers are more aggressive in requesting additional data and are reviewing the submitted information in greater detail compared to reviews done by the previous administration. Since the OFCCP is looking for overall compliance, they may request additional information even if the submitted AAP does not show any obvious problem areas. Below is a list of commonly requested information at the desk audit stage under the new administration:

1. Previous job group summary count (employees at beginning of the year). The OFCCP is trying to reconcile all of the provided data. They may take last year’s representations by job group, add/subtract the transactions that occurred during the evaluation period, and expect that the result of this calculation will be the same or very close to the ending (current AAP) job group summary count. If not, they may assume a lack of data integrity unless the contractor can prove otherwise.
   


2. Compensation by job group and/or pay grade. The OFCCP is aware that job groups are very broad and may not be the most appropriate way to analyze compensation. They still request contractors to submit this data by job group and/or pay grade because the bigger data set will yield a better sample size for analysis. Contractors must remind the auditor that item 11 in the audit letter specifically asks contractors to “present this data in the manner most consistent with your current compensation system.” Therefore, it is appropriate to submit this data by job title (or any grouping that is appropriate for your company) assuming that title is the most consistent grouping that represents your current compensation system. It is often inaccurate to analyze the compensation structure at any other level when pay and responsibility is typically unique to individual jobs. Job groups are too broad and include employees in job titles who are typically not similarly situated.
   


3. Evidence of job posting to the local State Employment Agency
   


4. Good faith outreach and recruitment for veterans and persons with disabilities


1. Evidence of Veterans and Disabled initiatives


5. Vets-100 and/or Vets-100A
   


6. If there are potential problem areas found in the submitted data (selection practices are the most common), OFCCP may target the company for possible systemic discrimination enforcement, and:


1. Thoroughly investigate and scrutinize any alleged discriminatory practices with help from the Solicitor of Labor.


2. May entail producing a number of documents. Narrative of steps for selection process. For each step:


1. Can applicant be eliminated of identified step(s)?


2. Describe selection criteria


3. Name, job, and description of responsibilities


4. Describe records maintained and length of time kept


5. Provide applicant flow and selection summary data for race/gender and/or minority/non-minority (e.g., meet minimum qualification, withdrew, interviewed, offered, etc.)


6. How long are applicants active?


3. Certify number of applications are consistent with applicant flow provided

Following are some best practices ideas that may help you (as a federal contractor) in closing your audit earlier and easier:

1. Develop a professional looking affirmative action plan (AAP)


2. Ensure accuracy and completeness of AAPs, supporting documents, and reports


3. If any preliminary indications of problem areas are found, research the issue to ensure that it is due to nondiscriminatory and/or job-related reasons


4. Research applicant flow to ensure only applicants associated with the hires are included


1. Use the Definition of an Internet Applicant


5. Analyze compensation to demonstrate equity


6. Inform the site management and upper level management of OFCCP Compliance Reviews (audit)


7. Have the following evidences ready prior to submission (if possible):




1. Outline local recruiting, selection, and hiring processes


2. Good faith efforts (outreach, recruitment, additional initiatives relate to veterans and disabled, etc.)


3. Job openings listed with the state employment, local vets representative, etc.

COMPARE Compensation Software Free Training

Many of our clients and friends from the BCG Institute for Workforce Development are taking advantage of Compare 2.0, the all-new version of Biddle Consulting Group's compensation analysis tool. On the BCG Institute site, users can download a free version of COMPARE compensation analysis and reporting software to try out some multiple regression analyses. Fully-licensed users can conduct high-volume, advanced regression analyses and even compute compensation liabilities at the click of a button.

To attend a free introductory session and/or to download the free "light" version of COMPARE, just go the the BCG Institute website and sign up for a free membership.

www.bcginstitute.org

On the BCG Institute site, members can sign up for a free COMPARE training session in addition to registering for our special Compensation 101 webinar being held on Wednesday, May 19th.

Dates for free COMPARE training:
May 25, 2010
September 30, 2010
December 14, 2010

DOL Releases New Website To Help Contractors Connect to Workers With Disabilities

Federal contractors have a new resource to identify the Federal disability nondiscrimination laws that may apply to their organization and their responsibilities under them.

See the Press Release and weblinks below:

News Release:
http://www.dol.gov/opa/media/press/asp/oasp20100562.htm

elaws - employment laws assistance for workers and small businesses - Disability Nondiscrimination Law Advisor:

http://www.dol.gov/elaws/odep.htm

Brief:
New online tool helps further equality and full access for people with disabilities

May 4, 2010 — The U.S. Department of Labor today unveiled a new tool to help America's employers ensure their employment policies and practices do not discriminate against qualified individuals with disabilities.

"Today, we made it easier for employers of all sizes to access the talents of the 36 million Americans with disabilities," said Assistant Secretary of Labor for Disability Employment Policy Kathleen Martinez. "By providing this interactive and easy-to-use online tool, both workers and employers can readily access and understand their rights and responsibilities under our federal disability nondiscrimination laws."

New DOL Website Shows OFCCP Enforcement Statistics

Recently, the Department of Labor introduced a website that allows a user to see the results of OFCCP audits from 2004 through 2009. For the first time, anyone can lookup the results of an OFCCP audit and see if a Federal Contractor was identified as having a Notice of Compliance, a Financial Agreement or a Conciliation Agreement. In the download-able spreadsheets, users can see a company name, address, audit date and more. Contractors can be identified as having an issue associated with a Written AAP, Past Performace, Recordkeeping and Support, Recruitment, Denial of Records/Access, Hires, Promotions, Terminations, Selection/Testing, Salary, Medical Screening, Accomodation and Systemic Discrimination.

See the website here:

http://ogesdw.dol.gov/index.php

Go to the search page and select OFCCP as the department and then select a state to view.

The statement on the website from OFCCP is below:


Office of Federal Contract Compliance Programs (OFCCP)

The OFCCP administers and enforces three legal authorities that require equal employment opportunity: 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, 38 U.S.C. 4212. Taken together, these laws prohibit discrimination and require Federal contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a Vietnam era or special disabled veteran.


The data provided by OFCCP for the enforcement database consists of completed compliance evaluations and complaint investigations, conducted by the OFCCP, since FY 2004. This data provides information on the OFCCP’s efforts to enforce the EEO-mandated laws and regulations within the Federal Contractor Community (those companies which have been provided government contracts). The data will be updated on a Monthly basis.

Spring CSAL released by OFCCP

The updated Corporate Scheduling Announcement Letter (CSAL) has been released by OFCCP. The letter identifies contractor locations that can expect a desk audit in the coming months. The Spring letter is the same as previous letters and is signed by Patricia Shiu.

Each letter is simply addressed to the job title of "Chief Executive Officer" of the corporation and it does not have a specific person's name.

For Q&A about the letter copy and paste the link below into your browser.

http://www.dol.gov/ofccp/regs/compliance/faqs/csalfaqs.htm

National ILG Conference for Affirmative Action, Don't Miss It!!

The Arizona, Las Vegas and Hawaii ILGs are privileged to host the 28th Annual Industry Liaison Group National Conference at the beautiful new Red Rock Resort in Summerlin / Las Vegas, Nevada August 3-6, 2010.

If you have ever attended one of the annual ILG Conferences on affirmative action,
you know how valuable the national conference is! Every attendee will walk away with
a wealth of knowledge that they did not have access to before!

If you haven't had the opportunity to attend one of the annual ILG conferences in
the past...then this is the one you don't want to miss!

Contractors will meet the new administration at OFCCP for the first time
with a keynote address from the new Director, Patricia Shiu.

Presentation topics will include: Compensation Analysis, Construction,
ARRA, Statistics, AAP Basics, Hiring Veterans, and much more!

Special functions every evening include receptions, regional meetings,
and a Gala Event.

All of the conference details ... and more are now available on the
2010 ILG National Conference website: http://www.ilgnvegas2010.com.

See you there!

Biddle Consulting Group Releases All-New Software for Statistical Compensation Analyses

Biddle Consulting Group, Inc., is pleased to announce the April 2, 2010, release of COMPARE 2.0®, a software solution that will help organizations evaluate compensation practices for signs of pay inequalities. COMPARE 2.0® is specifically designed to address the multiple regression-based analytical strategy embraced by the U.S. Office of Federal Contract Compliance Programs (OFCCP) for federal contractors and subcontractors.

Designed to seamlessly integrate with Microsoft® Excel®, COMPARE 2.0® was developed from the ground-up as a suite of stand-alone modules that generate and present and summarize the results of complex analyses necessary to fully understand and document your organization’s compensation practices. Results are formatted into a Microsoft® Excel® workbook so they are ready to print out and submit to decision makers.

The powerful features of COMPARE® include:

· Customizable thresholds that allow an organization to determine the specific high-level warning flags that could indicate pay disparities.

· Statistical analyses to help identify the most valid explanatory factors that drive an organization’s compensation practices.

· Statistical diagnostic tools to help determine whether data meet the assumptions for a valid regression analysis.

· Analytical reports identifying which employee groupings exhibit statistically significant pay disparities.

· A powerful report that indicates, for each individual, how much their pay must be adjusted to eliminate statistically significant differences.

COMPARE® is not just a statistical analysis tool. It is a comprehensive and powerful compensation analysis suite designed to perform compensation data modeling in a manner that is consistent with both technical and legally defensible standards.

To learn more or to download a free copy of the COMPARE® software please visit www.biddle.com/compare.stm or call us at (800) 999-0438.

Minimum installation requirements:

· Microsoft Windows XP / Vista / 7

· Microsoft Excel 2003 / 2007


COMPARE® was designed by the experts at Biddle Consulting Group, Inc., a company with over 35 years of experience in EEO, Affirmative Action, Compensation Analysis, and Testing industries.

COMPARE free training webinars:

- 4/16/2010
- 5/25/2010
- 9/30/2010
- 12/14/2010

To register, visit www.BCGinstitute.org

New OFCCP Web Cast - April 5. 2010

OFCCP has posted an invitation for a new web chat to take place on April 5, 2010. To sign up, see details below:

OFCCP Web Chat


Please join OFCCP Director Patricia A. Shiu on Monday, April 5th at 3:30 p.m. (EDT) for a live chat about OFCCP’s Strategic Plan. This is an opportunity to:

• Learn more about the strategic planning process; and

• Provide comment on the proposals for our strategic direction and goals.

The web chat can be accessed at http://dol.gov/strategicplan2010. The attached presentation highlights the strategies and measures OFCCP is considering for inclusion in the Department’s Strategic Plan for 2010-2016.

For more information about the DOL Strategic Plan, including department and agency overviews, go to http://www.dol.gov/strategicplan2010.

OFCCP values stakeholders’ participation and engagement in the planning process and encourages all interested parties to provide suggestions and feedback. If you would like to submit suggestions, feedback or comment on the Department of Labor’s strategic plan development please email strategic-plan@dol.gov. If you would like to comment specifically on OFCCP’s strategic plan, please include OFCCP in the subject line of the email. Note: Comments may also be submitted during the web chat but in this format not every comment submitted will be posted.

We want your input!

Deciding which AAP to submit to OFCCP in a desk audit

Federal contractors often struggle to understand exactly what data needs to be submitted during an OFCCP desk audit. One of the more difficult questions asked by contractors' staff is "Which AAP do I submit if I am close to my annual AAP renewal date?" OFCCP posted an answer to this question on their website under the Policy section of their Frequently Asked Questions (FAQs). While it leaves the final decision up to the contractor, the answer is useful in determining which plan and supporting data will be needed.

http://www.dol.gov/ofccp/regs/compliance/faqs/polfaqs.htm

From the OFCCP FAQ web page:

The scheduling letter used by OFCCP to commence a compliance evaluation requires the submission of an Executive Order Affirmative Action Program (AAP); Section 503/38 U.S.C. 4212 AAP(s); and support data on personnel activity from the preceding AAP year (a contractor that is 6 months or more into the AAP year must submit information that reflects progress on goals established in the current AAP). What does OFCCP consider to be a "current" Affirmative Action Program and support data?

Contractors are obligated to update their AAPs on an annual basis. When a scheduling letter is received, there is an expectation that a contractor will submit "current" AAPs. When a scheduling letter has been received just prior to, or just after, the annual update, questions have arisen concerning which AAPs should be submitted as the "current" AAP(s). Contractors should submit to the agency the AAP(s) that are current as of the date the scheduling letter is received. The date of receipt will be considered to be the date that the Certified Mail Return Receipt is signed by a representative of the contractor. If the scheduling letter is received within 30 days of the annual update of a contractor's AAP(s), the contractor may, at its own option, submit the updated AAP(s) for desk audit. In the event the contractor decides to submit the AAP(s) that have not yet been updated, then support data for the eleven (11) month period preceding the updating of those AAP(s) must be provided, in addition to information on the preceding AAP year.

OFCCP next Town Hall Meeting to be held in New Orleans

Please see invitation from OFCCP below:

OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS

Please join OFCCP Director Patricia Shiu and OFCCP Regional Director Melissa L. Speer as they host a Town Hall Meeting to provide a critical opportunity for stakeholders to provide suggestions to enhance the agency’s existing regulations and improve compliance. Further details and registration information are listed below.

AGENDA
Wednesday, March 17, 2010
Location: University of New Orleans, Lindy C. Boggs International Conference Center, 2045 Lakeshore Drive, auditorium 152, New Orleans, LA 70122

10am-12pm Listening Session on amending Affirmative Action & Nondiscrimination Obligations of Contractors and Subcontractors under Section 503 of the Rehabilitation Act
Presenter: OFCCP Director Patricia Shiu

2pm-4pm Listening Session on amending the regulations for Construction Contractors’ Affirmative Action Requirements
Presenter: OFCCP Director Patricia Shiu

Thursday, March 18, 2010
Location: University of New Orleans, Lindy C. Boggs International Conference Center, 2045 Lakeshore Drive, auditorium 152, New Orleans, LA 70122
10am-12pm Listening Session on amending the VEVRAA regulations
Presenter: OFCCP Director Patricia Shiu

REGISTER: Please call the New Orleans Area Office at (504) 589-6575 or register via email at Olivarez.linda@dol.gov. If you require an accommodation, please advise at the time of registration.

Comments during the Listening Sessions will be limited to two minutes each. No written comments will be accepted at these Listening Sessions;
however, you can submit written comments as follows:

• Affirmative Action & Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results under
Section 503 of the Rehabilitation Act. To submit comments, suggestions, or feedback please email: OFCCP-Regulatory-Agenda-503@dol.gov

• Affirmative Action & Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results under the
Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). To submit comments, suggestions, or feedback please email: OFCCPRegulatory-
Agenda-VEVRAA@dol.gov

• Construction Contractor Affirmative Action Requirements. To submit comments, suggestions, or feedback please email: OFCCP-Regulatory-Agenda-
EO-Construction@dol.gov

OFCCP to host Webinar(s) on Federal contract provisions involving (ARRA) funds

OFCCP is hosting a new webinar series: American Recovery & Reinvestment Act of 2009 (ARRA) for Federal and Federally-Assisted Construction Contractors.

Please join the U.S. Department of Labor - Office of Federal Contract Compliance Programs (OFCCP) – as it presents information on the equal employment opportunity (EEO) and affirmative action (AA) provisions of Federal contracts involving American Recovery and Reinvestment Act of 2009 (ARRA) funds.

Construction federal contractors are required to take specific affirmative action steps – 16 to be exact. In this webinar, Federal and federally-assisted construction contractors and subcontractors will learn about these 16 steps and what to expect during a construction compliance evaluation.

This webinar is approximately 1.5 hours long that include 30 minutes of Q&A opportunities. We invite you to e-mail us your questions in advance of the webinar.

Register for a session now by clicking a date below:

Tue, Mar 16, 2010 2:00 PM - 3:30 PM EDT
https://www1.gotomeeting.com/register/254878400

Tue, Mar 30, 2010 2:00 PM - 3:30 PM EDT
https://www1.gotomeeting.com/register/701096040

Once registered you will receive an email confirming your registration
with information you need to join the Webinar.

OFCCP Town Hall Meeting, February 16, 2010

Biddle Consulting Group attended the OFCCP’s Town Hall Meeting in San Francisco on February 16, 2010. The meeting was very similar to the webcasts held previously where the focus was not on a fixed presentation but rather on an open dialogue with the public. The meeting began with Bill Smitherman, Regional Director (Pacific Region), offering a flattering introduction to the new Director of the OFCCP, Patricia Shiu. The meeting was also attended by Sandra Dillon, National Director of Policy, as well as an attorney from the solicitor’s office.

The purpose of the meeting was to engage the public in dialogue regarding Section 503 of the Rehabilitation Act. Once the meeting was opened up to the floor there was significant discussion about the obstacles that employers face regarding recruitment of people with disabilities as well as the difficulties associated with soliciting information on accommodations. Several attendees articulated that the loss of America’s Job Bank has made life more difficult for Federal contractors to comply with the requirement to post open jobs with state and local employment agencies. Other attendees spoke up and suggested that the intention of eliminating America’s Job Bank was not only due to budget constraints but also to allow state agencies to evolve so the national board was not necessary.

Ms. Shiu and her team were very engaged in the dialogue and asked many questions based on the attendees concerns. It was made clear that the new leadership is using Town Hall Meetings and webcasts to gather input on what works and what doesn’t from the public perspective.

In conclusion, it was clear that Ms. Shiu has a plan in mind and that this administration has a very different agenda than the previous. The new OFCCP is certainly interested in the most egregious systemic offenders, but is also interested in returning to the days of enforcing classical affirmative action principles and all of its associated rules/regulations (and not just adverse impact). This focus suggests a reduction in the use of Active Case Management and an increase in the full desk audit methods of the past.

Ms. Shiu articulated to the attendees that “It is a new day at the Department of Labor and OFCCP.” Based upon the audits we have seen lately, we couldn’t agree more.

Compliance Officers are Requesting Records on Other Personnel Actions

By Marife Ramos

One of the recent atypical activities from the OFCCP is the compliance officer conducting detailed data reconciliation. That is, compliance officers “doing the math.” They look at the contractor’s previous year’s employee representation, add/subtract the transactions, and “expect” the numbers to match the current employee representation. (Please see blog dated February 5, 2010 for various other OFCCP requests and activities that make the Federal contracting community cringe).
When a compliance officer attempts to reconcile numbers based solely on the information contained in the AAP, more often than not, the starting and completing numbers will not add up. This is due to the fact that the AAP reports do not account for transfers, demotions, job eliminations, and/or acquisitions (and other personnel activities) that occurred in a job group. In previous audits, contractors were simply asked to explain the discrepancies. A brief explanation of these other activities used to be enough but not anymore. Contractors are now being asked to provide the actual data that will, so to speak, balance the equation. The question now becomes: “Since transfer and/or demotion data are not part of the AAP (nor in the itemized listing of the audit letter), can contractors argue against providing such data sets?”

Let’s take a look at what the regulations [CFR 60-2.17(b)] states:
"The contractor must perform in-depth analyses of its total employment process to determine whether and where impediments to equal employment opportunity exist. At a minimum the contractor must evaluate…(2) personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions [emphasis added]) to determine whether there are selection disparities…"

Consider these two things: 1) The audit letter only requests data for applicants, hires, promotions, and terminations and there is no mention of other personnel activities; however, 2) the regulations state that contractors are required to analyze other personnel actions as part of their affirmative action program obligation. Your direction? Clear as mud.

The advice would be that the regulations are in place and there is not much a contractor can do to argue against them. Contractors have always been expected to have other personnel actions tracked and analyzed and therefore, be able to provide all data in the event of an audit. Besides, if the data can explain the discrepancies in numbers then why not provide it? Now, if the data cannot explain the discrepancies, as is often the case, the contractor may have some explaining to do in regard to their recordkeeping systems and a Notice of Violation from OFCCP becomes likely.