Wednesday, July 27, 2011

Valuable Session From National ILG Provides Unique Insight

On July 27, 2011 John Fox delivered a rousing session with updates on current events in Affirmative Action in addition to providing a surprise guest speaker.

In addition to an OFCCP update discussed below, John pulled Sandy Zeigler and Shirley Thomas from the audience to loud applause. Shirley was the long time Director of the OFCCP and Shirley Thomas was her longtime Deputy in the Chicago region who were the subject of a lot of speculation following their sudden departure from the agency. John Fox asked Sandy to clarify what actually happened and if she wanted to dispel any false rumors. According to Ms. Zeigler, she and Shirley Thomas had elected to step down from their posts several months prior to the announcement and suggestions that their departure from the OFCCP was unplanned or forced are untrue. Additionally, Ms. Zeigler clarified that the desk audit letters mailed in June out of the Chicago region that were rescinded were pulled because they were not supposed to be mailed all at once. Ms. Zeigler and John Fox clarified that the same letters should be expected to be re-sent to the same contractors in a staggered format. Ms. Zeigler is known for her vast knowledge of the industry as well as the only known musical session at a National ILG conference.

Mr. Fox also provided a fast paced discussion about what is happening in the Affirmative Action industry. He made a point early in his discussion to make sure that his opinion of the current OFCCP Director, Patricia Shiu, is that she is the most important Director of the OFCCP since the Nixon administration. Mr. Fox went on to say that the many changes that have been under discussion for the last 12 months are going to happen.

Additional talking points:
1. Eight (8) percent of audits have identified issues
2. On June 4, 2011 a "Secret" OFCCP Directive was circulated amongst the agency that identified an updated compensation analysis threshold for compliance officers to use as a trigger to request detailed compensation data from contractors. The new threshold is a difference of 2% or $2,000 between comparative data provided by the contractor.
3. OFCCP is looking at comparisons of individuals within a job, also known as a cohort comparison. According to Mr. Fox, in all the audits he has participated in, he has yet to see a single result where OFCCP could prove discrimination.

Mr. Fox also identified the "OFCCP To Do List" in his blog. See excerpt and link below.

Some expected dates for release of various notices from the OFCCP (estimated):
1. New compensation collection tool - July/August
2. Advance Notice for Proposed Rulemaking for Section 503 of the Rehabilitation Act - August
3. Finalize changes to the Itemized Listing (audit letter) - by September 30
4. Advance Notice for Proposed Rulemaking for Construction regulations - November
5. Updates to the Federal Contract Compliance Manual - Fall 2011
6. Updates to the Sex Discrimination laws - February 2012
7. Final Rule on Section 4212 (Veterans) regulations - Spring 2012

OFCCP Director Pat Shiu Delivers Keynote Speech at 2011 NILG

Wednesday, July 27, 2011.

Following a spectacular musical opening to the 2011 National ILG, Director Patricia Shiu delivered her annual keynote address covering recent accomplishments, current events and future plans.

Ms. Shiu reminded the audience that the White House directive to eliminate the gender pay gap is still very much in effect. Also, that the OFCCP is still pushing hard to update many areas of the regulations including Section 503 of the Rehabilitation Act, The Compensation Guidelines, Section 4212 (Vets regs), the Compliance Manual, The Itemized Listing (desk audit letter), and the Construction regulations.

Women are making 81 cents for every dollar that men make and Ms. Shiu stated that the difference can account for hundreds of thousands of dollars across a person's career. The OFCCP expects to roll out a new compensation collection tool in the next few months.

One key quote that stood out regarding the value of compliance efforts was how organizations can benefit from effort put into AAPs/Diversity. "Employers who embrace diversity see a better bottom line."

Additional footnotes:
  • The Federal Contract Compliance Manual is very close to completion

  • New compensation analysis guidelines are coming

  • The key to audits is quality not quantity

  • The DOL, DOJ and EEOC are sharing information and referring cases

  • President Obama wants a unified Civil Rights Agenda

  • Compliance is no longer defined by Good Faith Efforts alone, accountability must exist

  • Clarity is an important part of enforcement and many regulations must be updated
In her closing remarks, she said, "We need a new ethic of responsibility. We need a new ethic of opportunity."

More notes from the National ILG conference in New Orleans to come.

Monday, July 18, 2011

Dr. Nooren to Speak at the SHRM 2011 Diversity and Inclusion Conference

Dr. Patrick Nooren, Ph.D., Biddle Consulting Group Executive Vice President, will be speaking at the SHRM 2011 Diversity and Inclusion Conference.

Here are the details:

Conference Name: SHRM 2011 Diversity and Inclusion Conference

Dates: October 24-26, 2011

Location: Washington, DC

Title: What You Can Learn From an Ostrich . . . Compensation Analyses and the OFCCP

Description: In the not so distant past, the Office of Federal Contract Compliance Programs (OFCCP) tried, largely unsuccessfully, to investigate compensation discrimination. Today, with over $30,000,000 in additional funding and 200+ new employees, failure is no longer an option. Employers need to realize that investigating compensation disparities is now a primary mandate within the Agency and the days of submitting compensation data with no recourse are over.

This presentation is for practitioners of all levels. Attendees will leave with tools and strategies for preparing their organizations for the eventual compensation review.

Workplace Application: Attendees will leave with an understanding of what their organizations need to do to be proactive with respect to OFCCP compensation investigations.

Recertification /Learning Objectives:

1. Methods for investigating compensation disparities (Title VII/EPA)
2. Understanding OFCCP compensation enforcement
3. Strategies for reducing legal exposure

Friday, July 15, 2011

EO Clause and Annual Vendor Notification

by Fe Ramos
Sr. Consultant
Biddle Consulting Group

EO Clause and Annual Vendor Notification

With the OFCCP’s heightened audit activities, one of the issues that compliance officers (CO) typically find is the failure of employers to send out yearly notification to their vendors, subcontractors, and/or suppliers regarding their company policy. Employers typically mistake the inclusion of the EO Clause in their contracts and subcontracts as something that also addresses the obligation to send out an annual notification. Federal contractors need to do BOTH.

1) Include the EO Clause either by reference or its entirety in all contracts and subcontracts (41 CFR 60-1.4; 41 CFR 60-250.5; 41 CFR 60-300.5). Although not specially stated in the regulations, compliance officers also check to see if the EO Clause is included in the purchase orders, invoices, and other documents issued by the federal contractor. Hence, it is recommended that the EO clause be included in most (if not all) of the contractor’s documents. It is, however, not necessary to include the full text of the EO clause in the job postings or advertisements. Simply stating that the contractor is an EOE (Equal Opportunity Employer) is sufficient as a tag line in the job postings and advertisements.

2) Send written notification of the company policy to vendors, suppliers, and subcontractors (41 CFR 60-741.44[f(5)]; 41 CFR 60-250.44[f(6)]; 41 CFR 60-300.44[f(6)]). Although not specifically stated in the regulations, contractors should be sending out these notifications on a regular basis (i.e., at least annually).

Wednesday, July 13, 2011

Summary Version: OFCCP Web Chat July 12

OFCCP Web Chat
July 12, 2011
Summarized version
Below the list are questions and answers submitted by BCGi.

Definition of Terms:
ANPRM - Advance Notice of Proposed Rulemaking
NPRM - Notice of Porposed Rulemaking
FCCM - Federal Contract Compliance Manual
CSAL - Corporate Scheduling Announcement Letter

• Final Rule on Changes to Veteran Regulations - In the Final Rule the OFCCP will describe the comments, the issues they raised, and our responses to them. We anticipate publishing a Final Rule in the spring of 2012.

• Current pay analysis structure - Contractors may use any method that is consistent with Title VII principles.

• Publishing the Updated Census Data – The OFCCP is working with the census bureau, EEOC and Department of Justice in creating the special tab. It should be available in the next 12 months. (BCG Note – The most recent e-mail from the census bureau suggest a December 31, 2012 release)

• Changes in Construction Contractor Regulations – OFCCP is in the process of developing a proposed construction regulation and is planning to publish the proposal in November.

• Compensation Collection Tool - The Compensation Data Collection Tool ANPRM is in the final stages of review and OFCCP expects to publish it within the next few weeks

• Current Methods for Analyzing Pay - OFCCP does not require one particular methodology for a contractor’s analysis of its pay practices. Contractors may use any method that is consistent with Title VII principles.

• Personnel Changes at OFCCP – OFCCP is currently recruiting for Regional Director in the Midwest Region and Deputy Regional Directors in the Northeast, mid-Atlantic, Midwest and Dallas regions.

• Changes to the Itemized Listing for the Scheduling Letter – The revised scheduling letter was published for comment in May, and the comment period closed July 11th. There were a few comments received. OFCCP is reviewing those comments. The goal is to complete the consideration of the comments, any revisions needed, and return the document with any appropriate revisions to OMB by no later than the end of July

• Updates to Section 503 of the Rehabilitation Act - The Section 503 NPRM is currently under review. Once the OMB review is complete, OFCCP will publish the NPRM for public comment. OFCCP anticipates publication of the Section 503 NPRM in the Federal Register sometime in the next month.

• Update to the Federal Contract Compliance Manual – Changes expected to be posted in the Fall (2011)

• Trends in Violations - One trend that OFCCP has observed is that when it identifies major violations, contractors have failed to implement internal, self-audit procedures and failed to implement corrective actions. This has resulted in the agency finding record keeping violations relating to personnel activity and compensation.

• Sex Discrimination revisions – NPRM February 2012

• Why the proposed changes in the sex discrimination guidelines - The guidance in part 60-20 is more than 30 years old. We need sex discrimination regulations that reflect the current state of the law in this area. Employer policies and practices and the nature and extent of women’s participation in the labor force have also changed significantly since the guidelines were put in place. OFCCP is proposing in this NPRM to create sex discrimination regulations that reflect these changed conditions.
A good example is the guidelines’ provision on pensions. It says that it’s not sex discrimination if contractors provide either equal contributions to employee’s pension funds or provide contributions that result in equal benefits upon retirement. But the Supreme Court has now ruled that it is impermissible to require employees of one sex to make larger contributions than the other in order to receive the same monthly benefits. Therefore the greater cost of providing a pension to members of one sex is not a defense to failing to provide benefits equally to members of both sexes.

• Results from OFCCP Enforcement Efforts in 2011 - In the first six months of Fiscal Year 2011, OFCCP has completed 44 financial conciliation agreements that include $5.66 million and 657 job offers for 8,090 victims. This compares favorably to the same period last year when we had completed 35 financial CAs totaling $2.77 million and 582 job-offers for 3,157 victims. This represents a 25 percent increase in CAs, more than double the financial remedies and, most importantly, an increase in job opportunities for workers who faced discrimination.

BCG Institute for Workforce Development Questions

Comment From BCG Institute Is OFCCP actively auditing establishments with fewer than 50 employees onsite?

Patricia A. Shiu, OFCCP Director: Thanks for your question. The answer is, No, OFCCP is not actively auditing establishments with fewer than 50 employees. OFCCP will investigate complaints against contractors of any size.

Comment From BCG Institute Can you tell us when the FAAP schedule for renewal will be sent out to Contractors?

Patricia A. Shiu, OFCCP Director: The new FAAP directive is available on OFCCP’s web page. Notification letters were sent to all existing FAAP contractors informing them that they should contact the OFCCP regarding their intent to renew their agreements in accordance with the new directive.

Comment From BCG Institute Any news regarding an update to the FCCM?

Patricia A. Shiu, OFCCP Director: OFCCP is still working on the FCCM. We anticipate it will be published in a few months. We will announce the release of the Manual on our website.

Comment From BCG Institute
Is there a schedule for the release of the CSAL?

Patricia A. Shiu, OFCCP Director: In general, CSAL letters are sent from the National Office when the scheduling list is given to the field offices for use. Corporations are generally sent a CSAL if more than two of its establishments appears on the scheduling list. The letters normally go out in the fall and in the spring. The last mailing occurred in February 2011.

Comment From BCG Institute Will you be speaking at the 2011 National ILG conference in New Orleans in late July?

Patricia A. Shiu, OFCCP Director: Yes, I will, and I look forward to seeing you there!

Comment From BCG Institute What do you suggest Federal contractors do when they want to post a job but cannot access the state job board?

Patricia A. Shiu, OFCCP Director: We suggest you contact the state workforce agency to request technical assistance with accessing their state job board.

Comment From BCG Institute For the proposed changes to the itemized listing in the desk audit letter, can you tell us if the transaction data collection method will be by job group and job title showing counts or do you expect a detailed data file by individual transaction?

Patricia A. Shiu, OFCCP Director: BCG, the proposed scheduling letter requests transactional data by count grouped by job group and job title not by individual transactions.

Comment From BCG Institute The census bureau has been posting updates to the release of the 2010 EEO file. The last update suggested Dec 31, 2012 as a possible release date.

Patricia A. Shiu, OFCCP Director:
Thank you very much for your comment.

Tuesday, July 12, 2011

OFCCP Provides Web Chat on Current Activities

On July 12, 2011 Patricia Shiu, OFCCP Director participated in a one-hour web-chat regarding all of the OFCCPs latest activities. Ms. Shiu covered a long list of topics related to changes in:

1. Compensation analysis tools
2. Construction regulations
3. Changes in Section 503 of the Rahabilitation Act
4. Updates to the Federal Contract Compliance Manual (FCCM)
5. The Final Rule for changes to the Veteran's regulations
6. Continuing the Corporate Scheduling Announcement Letter (CSAL)
7. Use of the 2010 EEO census file
8. Implementation of the new Functional AAP Directive
9. Changes to the Itemized Listing in desk audit letters
and more

The link to the entiore chat is below. Expect a summary blog to be posted shortly.

Friday, July 8, 2011

Latest Notes on the 2010 EEO Census File

In late June, the census bureau sent out the latest notes on the release of the 2010 EEO census file. Some interesting notes on the release date and new data that will be available for the first time.

E-mail posting below:

Subject: Fifth Informal Update on Status of Census 2006-2010 Special EEO File


This email is the fifth informal update on the status of the American Community Survey (ACS) 2006-2010 Special EEO File (Tabulation) from the Census Bureau. These updates will continue until the EEO File and the American FactFinder (AFF) programs for accessing the data in the File are released.

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.

The 2006-2010 Special EEO File will contain - more likely than not - two additional tabulations concerning employment status. That is, for each of the 480 detailed occupations, there will be information on those who are (1) currently employed, (2) currently unemployed but had worked in the last 12 months, and (3) currently unemployed and had not worked within the last one to five years. There will be one tabulation by race, ethnicity and sex and another by seven age groups - starting with the 16 to 40 age group.

The currently anticipated date for the release of the next Special EEO File is December 31, 2012.

Joseph Donovan

Friday, July 1, 2011

Best Practices for Employers and EEO / HR Pros

Six hiring tips straight from the EEOC:

  1. Recruit, hire, and promote with EEO principles in mind, by implementing practices designed to widen and diversify the pool of candidates considered for employment openings, including openings in upper level management.

  2. Monitor for EEO compliance by conducting self-analyses to determine whether current employment practices disadvantage people of color, treat them differently, or leave uncorrected the effects of historical discrimination in the company.

  3. Analyze the duties, functions, and competencies relevant to jobs. Then create objective, job-related qualification standards related to those duties, functions, and competencies. Make sure they are consistently applied when choosing among candidates.

  4. Ensure selection criteria do not disproportionately exclude certain protected classes unless the criteria are valid predictors of successful job performance and meet the employer's business needs. For example, if educational requirements disproportionately exclude certain minority or racial groups, they may be illegal if not important for job performance or business needs.

  5. Make sure promotion criteria are made known, and that job openings are communicated to all eligible employees.

  6. When using an outside agency for recruitment, make sure the agency does not search weed out candidates of a particular protected class. Both the employer that made the request and the employment agency that honored it would be liable.

For expanded article, see