Monday, February 28, 2011

OFCCP Sends Updated CSAL To Contractors

The OFCCP has mailed an updated Corporate Scheduling Announcement Letter (CSAL) to Federal contractors. The letter is dated February 25th and it lists the establishments that OFCCP intends to audit in 2011. Previous letters used the terms Fall and Spring, while this new letter lists Winter 2011 as the "Establishments Identified For Potential Scheduling" and once again the letter clearly states that audits are not limited to the establishments listed.

Friday, February 25, 2011

OFCCP Introduces New Directive For Audits

Under Charles James, the OFCCP operated under the Active Case Management (ACM) directive that defined general expectations when auditing Federal Contractors. ACM was focused on Systemic Discrimination where OFCCP conducted a high volume of audits as they sought out issues related to Adverse Impact and Compensation. If a plan didn't have any obvious issues at the desk audit stage, the OFCCP would typically close the audit and move on. When Pat Shiu took over the OFCCP in 2009, there was an immediate shift back to the more classical style of OFCCP audit where the agency reverted to reviewing all of their mandates. In December, 2010, the OFCCP put their plan in writing when they introduced the new Active Case Enforcement (ACE)strategy that became effective January 1, 2011. ACE will now take precedence over any previous directive.

The Basics:

- All contractors selected by the FCSS will be required to submit their AAP and supporting documentation to the OFCCP

- A full desk audit will be performed in every evaluation

- Every 25th contractor selected in the FCSS will receive a Full Compliance Review (that includes an on-site audit)

- Indicators of potential discrimination may be of an individual or class

- Every on-site will include a review of EO 13496

- Contractors will be exempt from another audit for 24 months after the audit’s date of closure

To read the directive, click here:

Monday, February 14, 2011

You Have Got to Read This - FY 2012 OFCCP Budget Justification Has Just Been Released!

by Patrick Nooren. Ph.D., Executive Vice President
Biddle Consulting Group

As with previous years, the place to go to find real insights regarding what lies ahead with the OFCCP is in their congressional budget justification. This document outlines the Agency’s initiatives for the upcoming year(s) and is usually full of nuggets of information . . . and this year is no exception.

While there will be modest increases in full-time employees (11) and overall budget ($3.624M) when compared to previous years, the OFCCP is undertaking several significant initiatives that will have lasting impact on the contractor community. They include (but are not limited to):

1. Electronic Submittal of AAP Data: The OFCCP will continue to focus on using technological advancements to increase the depth and breadth of their enforcement. To this end, they are continuing to fund advancements in the Federal Contractor Selection System (FCSS), the primary tool used to identify which contractors will receive scheduling letters in any given year. The Agency envisions that AAP data (e.g., hiring, promotions, terminations, workforce, compensation, etc.) will be submitted electronically by contractors via a secure web portal and that the data will be analyzed automatically, resulting in a much more efficient and focused selection process for audits. For obvious reasons, it will become more important than ever to analyze your data prior to submittal and to ensure that your organization completely understands the extent of any “issues.” The stage has already been set with the electronic submittal of EEO-1 data. It appears that AAP data is next.

2. Compensation Equity: The OFCCP is making pay equity a top priority by developing a web-based Compensation Data Collection Tool that would allow the Agency to better identify indicators of pay disparity. While the final scope of the data to be collected is still to be determined, variables such as gender, race, salary and/or average salary, and variance (a statistical term for average amount of variation in salaries) will likely be on the list. This data will be collected on 70,000 – 110,000 contractors (depending on the threshold for submittal) and allow the OFCCP to identify statistically significant disparities and focus their enforcement on those contractors with the highest likelihood of discrimination. (Note: The OFCCP intends to also make this data available on-line, in a searchable database, to improve transparency and public disclosure. Given the highly confidential nature of this data, we eagerly await to see just what data is made available.)

3. Increased Enforcement/Education: The OFCCP intends to conduct significantly more full desk-audits, additional on-site investigations, focused reviews, and stakeholder education.

4. Misclassification of Workers: The OFCCP will be focusing on efforts to deter, detect, and eliminate worker misclassification as independent contractors. They are allocating over $3.5M and 11 full-time employees to this initiative.

5. Regulatory Revisions: In FY 2012, OFCCP is scheduled to: 1) finalize its revision on 41 CFR Part 60-4 which impacts contractors and subcontractors in the construction industry, 2) finalize its revision on 41 CFR Part 60-741 which protects workers with disabilities and finalize and publish its revision on VEVRAA (summer 2011).

6. Compliance Manual Updates: Updates to the OFCCP compliance manual are ongoing and will include revised enforcement procedures to both broaden and deepen the scope of future compliance evaluations. The Agency believes that while this approach may result in fewer overall audits, it will likely result in more findings of discrimination. It’s doesn’t take an expert to see that this will also result in lengthier and more time-intensive investigations.

Editor’s Note: Electronic submittal of AAP and compensation data, if executed, would be a monumental advancement for the OFCCP. It will accomplish what has been long sought within the Agency; automation of the preliminary AAP analyses resulting in a rank-ordered list of the likeliest offenders. This would mean that contractors can no longer submit data to the OFCCP and “hope” that it somehow evades scrutiny. Under this model, all data would be analyzed, and all potential problem areas would come to light. Given this, it is imperative that contractors ensure their AAP data accurately reflects reality and that they conduct their own analyses prior to submittal. Do not hesitate to contact Biddle Consulting Group at 1.800.999.0438 should you have any questions.

New OFCCP Budget Posted for 2012

On February 14th, The Department of Labor held a live Web Chat hosted by Secretary of Labor Hilda L. Solis and assistant secretaries from U.S. Department of Labor. In the web chat OFCCP Director Patricia Shiu stated that the OFCCP 2012 budget justification has been posted online. The annual budget document is labeled "FY 2012 CONGRESSIONAL BUDGET JUSTIFICATION OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS"

Each year the OFCCP posts their intended agenda for the following year and 2012 will be very important as the OFCCP is agressively seeking to convert several proposed regulatory changes into law.

The link to the OFCCP section listed under Volume II can be found here:

Readers can expect a summary report from Biddle Consulting Group shortly.

Thursday, February 10, 2011

OFCCP Public Announcement: WEB CHAT on DOL FY2012 Budget

WEB CHAT on DOL FY2012 Budget

Secretary of labor to host live Web chat on department’s fiscal year 2012 budget request Feb. 14

WASHINGTON – Secretary of Labor Hilda L. Solis and assistant secretaries from U.S. Department of Labor agencies will host a live Web chat to discuss the department’s fiscal year 2012 budget request on Monday,
Feb. 14, at 1 p.m. EST.

WHO: Secretary of Labor Hilda L. Solis Assistant secretaries of Labor Department agencies

WHAT: Web chat on Labor Department’s fiscal year 2012 budget request

WHEN: Monday, Feb. 14 1-3 p.m. EST

WHERE: To participate in the Web chat, visit at the scheduled time.

OFCCP Posts Directive Regarding Jurisdiction Over Hospitals

In December of 2010 the OFCCP issued a new directive regarding jurisdiction over hospitals who have certain contracts. Historically, hospitals have avoided the compliance requirments under Executive Order 11246 because Medicare provided insurance - not direct services. However, in 2010, an Administrative Law Judge (ALJ) determined that OFCCP does have jurisdiction under other contracts where services are being provided. Since the OFCCP v. Florida Hospital of Orlando, ALJ Case No. 2009-OFC-00002, the OFCCP has been sending out desk audit letters to hospitals citing the TRICARE contracts to support their jurisdiction and prior argument that hospitals are indeed subcontractors.

The OFCCP directive can be found through the link here:$File/OFCCP%20Health%20Care%20Directive.pdf

Below is an excerpt from the directive, outlining the basic premise:

OBSOLETE DATA: This Directive supersedes two earlier Directives. They are: Directive Number 189, Health Care Entities that Receive Medicare and/or Medicaid (December 16, 1993); and Directive Number 262, Coverage of Health Care Providers Based on their Relationship with Participants in the Federal Employees Health Benefits Program (March 17, 2003).


A wide range of relationships exist between health care providers and/or insurers, and Federal health care programs and/or participants in Federal health care programs. Some of these relationships constitute contracts within OFCCP jurisdiction, while others do not. Recent case decisions and changes in the health care industry and Federal health care programs have given rise to questions about which health care provider/insurer relationship constitute covered Federal contracts. This Directive addresses these coverage questions with respect to three nationwide Federal health care programs – Medicare, TRICARE, and the Federal Employees Health Benefit Plan (FEHBP) – and provides guidance for assessing when a health care provider or insurer is a covered federal contractor for purposes of OFCCP jurisdiction.

Three significant OFCCP cases address health care provider coverage issues and provide the basis for a framework for the analysis of these issues. In OFCCP vs. UPMC Braddock, UPMC McKeesport, and UPMC Southside, ARB Case No. 08-048 (May 29, 2009), a case involving the FEHBP, the Department of Labor Administrative Review Board (ARB) determined that three hospitals under review by OFCCP were covered subcontractors. Each hospital had a Health Maintenance Organization (HMO) contract with UPMC Health Plan to provide medical products and services to Federal Government employees covered by the UPMC Health Plan, pursuant to the Health Plan’s contract with the U.S. Office of Personnel Management (OPM). The decision found that, under the terms of the HMO contract, the hospitals were to provide the medical services necessary for the UPMC Health Plan to meet at least a portion of its contractual obligation to OPM to put an HMO into operation. Thus, the hospitals were subcontractors subject to OFCCP jurisdiction.

Friday, February 4, 2011

2010 EEO Census File Update #3

On February 4th, the Census Bureau sent out a brief update regarding the status of the 2010 EEO file that is expected to be released in 2012. The message clarifies that disability data will not be a part of the Special EEO file.

Below is a copy of the e-mail message:

Sent: Friday, February 04, 2011 1:23 PM
Subject: Third Informal Update on Status of Census 2010 Special EEO File
Happy Chinese New Year!

This email is the third informal briefing on the American Community Survey (ACS) 2010 Special EEO File (Tabulation) from the Census Bureau that is expected to be released in the fall of 2012. The first and second updates are attached to this email. These updates will continue until the EEO File and the American FactFinder (AFF) programs for accessing the data in the File are released.

If you would like to be removed from this mailing list, which will be sent via bcc, please let me know. If you know of other organizations or individuals who might like to receive these notices, please send me their names or email addresses.

Please remember that this information is unofficial and will only be finalized when the Census Bureau releases the EEO File and the AFF means for accessing it.

Just as the Special EEO File has been the primary benchmark in civil rights monitoring and enforcement for determining the racial, ethnic and gender composition of labor markets, within specified geographies and job categories, it was hoped that the next EEO File would have the same status for determining benchmarks by disability and citizenship. This will definitely not be the case for disability statistics, as they cannot be included for technical reasons.

Citizenship data, which was specifically added to the EEO File to address federal employment issues, will be included in the next Special EEO File. However, the size for the smallest geographic levels (i.e., counties, aggregated counties, or places) will probably be 100,000 or more – rather than the 50,000 or more for other variables. The citizenship data should not affect the availability of tables or cross-tabulations by larger geographic areas, i.e., Combined Statistical Areas (CBA’s); Core Based Statistical Areas (CBSA’s); states; and the United States.

Again, irrespective of the variable, only tables and cross-tabulations that are permitted by the Census Bureau’s Disclosure Review Board will be produced, which might mean that some desired tabulations and cross-tabulations may not be possible due confidentiality concerns.

Finally, apart from the features within AFF to download specific tables and cross-tabulations created by the user, AFF will provide a pointer to other sites within Census where users can download the entire Special EEO or other large files. The files will be available in ASCII, SAS and, most likely, other formats. Pointers to the documentation for downloading and using these files will also be provided.

Joseph Donovan

DOL Settles Gender Discrimination Case Against Another Food Distributor

Posted on February 3rd:

The OFCCP has settled another case against a food distributor. While the OFCCP has not stated publicly that they are targeting the food industry, there has been wide speculation that the meat processing industry is the focus of specific efforts to uncover potential discrimination in the hiring process. For details see OFCCPs post below:

OFCCP News Release: [02/03/2011]
Contact Name: Scott Allen or Rhonda Burke
Phone Number: (312) 353-6976 or x6976
Release Number: 11-0146-CHI

US Labor Department settles gender discrimination case with Green Bay Dressed Beef on behalf of 970 female applicants for $1.65 million
Agreement includes back wages, interest, benefits and job offers

GREEN BAY, Wis. — Federal contractor Green Bay Dressed Beef LLC will pay $1.65 million in back wages, interest and benefits to 970 women who were subjected to systemic discrimination by the company. The settlement follows an investigation by the U.S. Department of Labor's Office of Federal Contract Compliance Programs, which found that the women were rejected for general laborer positions at the company's Green Bay plant in 2006 and 2007.

"This is the 21st century in the United States of America. There is no such thing as a "man's job,'" said Secretary of Labor Hilda L. Solis. "I am pleased that my department has been able to work out a resolution with Green Bay Dressed Beef, and that the settlement not only compensates the victims of discrimination but also provides jobs for many of these women."

In addition to financial compensation, the beef supplier will extend a total of 248 offers of employment to affected women as positions become available. The company already has hired more than 60 of the women in the original class.

During a scheduled compliance review, OFCCP determined that the company had violated Executive Order 11246, which prohibits federal contractors from discriminating on the basis of gender in their employment practices. Under the terms of the conciliation agreement worked out between the Labor Department and the contractor, the $1.65 million will be divided among the affected women who return timely notifications. The company also has agreed to undertake extensive self-monitoring and corrective measures to ensure that all employment practices fully comply with the law and will immediately correct any discriminatory practices.

Two of Green Bay Dressed Beef’s largest clients are the U.S. Department of Agriculture and the U.S. Department of Defense — as one of the largest suppliers of beef products for the federal school lunch program and one of the leading providers of beef products to American military personnel worldwide.

In addition to Executive Order 11246, OFCCP's legal authority exists under Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. As amended, these three laws hold those who do business with the federal government, both contractors and subcontractors, to the fair and reasonable standard that they not discriminate in employment on the basis of gender, race, color, religion, national origin, disability or status as a protected veteran. For general information, call OFCCP's toll-free helpline at 800-397-6251. Additional information is also available at