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.