"Affirmative Action News" Has Moved!

www.AffirmativeAction.com

Biddle Consulting Group is happy to announce the new home of our Affirmative Action News blog - now found on our new site www.affirmativeaction.com.  Please bookmark the new Affirmative Action News blog address at www.affirmativeaction.com/news. You will still be able to enjoy the same great blog content -just in a new location.  

If you have been an e-mail subscriber to AffirmativeActionNews.blogspot.com, your subscription has been transferred to the new blog address. You will continue to receive blog updates by e-mail.

Not a subscriber to Affirmative Action News by Biddle Consulting Group, yet?  Don't wait, subscribe today!

Congratulations to Our SWARM Conference Drawing Winners!

Here’s a reason to attend a conference in which Biddle is a vendor. At the recent SWARM conference in San Antonio, Biddle Consulting Group gave away 1-full year of BCGi Platinum membership privileges (a $299 value each) to 10 lucky recipients.

Visit www.BCGInstitute.org

This membership provides the winners with unlimited access to live webinars (most are eligible for HRCI credit!), all previously recorded webinars, Platinum member only training, EEO Insight Archive and all the tools found on the BCGi website. Among the dozens of attendees who stopped by our booth and dropped a business card into our “Everything is Bigger in Texas” mug, a special congratulations goes to the following winners:

• Martha Burrage – Honeywell
• Liz Sauls - SACU 
• Mike Dougherty – Colorado School of Mines 
• Nilda Barela – University of New Mexico 
• Audrey Magnuson – University of Texas, San Antonio 
• Jackie Kostreba - Dell 
• Kristi Williamson – McKesson 
• Shari Conaway – Southwest Airlines 
• Beth Cook – American Eurocopter 
• Liese Teneyuca-Arias - SACU 
• LyKinda Warner – Pamlab

Congratulations! 

Video: "Reviewing the Impact of the Office of Federal Contract Compliance Programs' Regulatory and Enforcement Actions"

This morning, the U.S. House of Representatives' Committee on Education and the Workforce held a hearing to review the impact of the OFCCP's regulatory and enforcement actions. This event was streamed live.

The committee invited four witnesses to testify about the impact of the proposed new regulations. After the testimonies, each committee congressman was given five minutes to comment and question the witnesses.

You can watch the recording of the hearing here:


(If you cannot see the video above please go to: http://edworkforcehouse.granicus.com/MediaPlayer.php?view_id=2&clip_id=83).

More information about the hearing, including the complete written testimony of each witness and Chairman Roe's opening statement can be found here:  http://edworkforce.house.gov/Calendar/EventSingle.aspx?EventID=289630

The Value of a Veteran

One of the many benefits of attending conferences is the opportunity to meet other professionals in our industry. Last week, we attended the SWARM Conference and were delighted to meet Lisa Rosser. Lisa's company, The Value of a Veteran, educates and helps government agencies, corporations and higher education institutions develop a veterans hiring strategy. The firm provides these services via web seminars, an employer's guide, workshops and consulting.

In the near future, we will be presenting a BCGi webinar with Lisa. In the meantime, watch the video below to learn more about The Value of a Veteran. Also, be sure to visit www.thevalueofaveteran.com.



(If you are unable to see the video above, please view it online at http://youtu.be/U_zweEuneJs)

Lilly Ledbetter Interview

Today for Equal Pay Day, we've posted an interview with Lilly Ledbetter. You may recall that Lilly Ledbetter is the inspiration for the Lilly Ledbetter Fair Pay Act of 2009. In the interview below, she tells her story.

 (If you are unable to see the audio player, please go to http://www.prx.org/pieces/75847-equal-pay-will-we-ever-get-there.)

Live Hearing: "Reviewing the Impact of the Office of Federal Contract Compliance Programs' Regulatory and Enforcement Actions"

Watch live as representatives from the healthcare field testify in front of a special subcommittee Congress recently assembled regarding OFCCP’s impact on developing and maintaining Affirmative Action Plan(s). How will Congress react to the testimonies from the AAP Healthcare Community? Will the results of the hearing not only impact current regulations but also influence the pending approvals of the Proposed Regulations regarding the Covered Veterans and Individuals with Disabilities?

Find out by watching the hearing live this Wednesday, April 18th at 10:00 a.m. (EST).
Go to http://edworkforce.house.gov/Calendar/EventSingle.aspx?EventID=289630 for broadcast viewing information.

AAP and Comp Data Security

Are you certain your AAP and Comp data are safe?

Have you ever wondered what happens to your data after you send it to a consultant? Most consultants simply save your information on their laptop or flash-drive, some will place your data behind a company firewall, and others will even secure your data in a building that is monitored by a security guard. Is your data really as safe as it should be?

While you may not be able to affirmatively answer these questions about the security of your data, you should know that Biddle Consulting Group is proactively addressing data security. Biddle stops at nothing to ensure client data are secure. From industry leading 128bit encrypted data transfer technology, to annual independent third-party security evaluations, and cloud computing in today's safest server farms, Biddle makes every attempt possible to lock-down client data. Biddle has also been evaluated and approved to store data by two of the most security conscious industries - Banking and Healthcare Insurance.

Do you want to know more about the security of your data in our data centers?  Take a look at the following information about our secure data facility:

"...monitor the physical security of our Enterprise Data Center, around the clock, with a full staff of professional security personnel at our on-site Security Control Center. The facility's physical surveillance includes pan-tilt-and-zoom digital recording cameras, 360-degree perimeter and roof observation, event-driven intrusion detection systems, and locked-down floor tiles with an under-floor intrusion detection system.

...security access controls ensure that only authorized customers have access to the facility. Pin-code access keypads, proximity card readers, and biometric iris scanners monitor every access point. Weight sensitive portals control multi-person entries. And the system monitors and logs the entry and exit of each visitor to our facility and/or customer cages." 

Still thinking your data are safe? Or are you one of the many Biddle clients reading this blog and pleased that we take data security so seriously?  Whether you are a client or prospective client who wants to know more about how Biddle keeps your data secure, feel free to call (800) 999-0438. Ask for an AAP representative; we are happy to help!

Understanding and Applying the Americans with Disabilities Act Amendments Act and Its Regulations

A recent news brief written by the DOL’s Office of Disability Employment Policy (http://www.dol.gov/odep/newsletter/)  links to a helpful multimedia resource from the Job Accommodation Network (JAN). This valuable resource provides a video, transcript, and resource handouts with information on the ADA Amendments Act (ADAAA). Real-life examples from the Job Accommodation Network case study library are used.

To visit JAN's multimedia library, click below:
Understanding and Applying the Americans with Disabilities Act Amendments Act and Its Regulations

EEOC’s Final Rule on Disparate Impact and “Reasonable Factors Other Than Age” Under the Age Discrimination in Employment Act

On March 30, 2012 the EEOC’s Final Rule on Disparate Impact and “Reasonable Factors Other Than Age” under the Age Discrimination in Employment Act of 1967 was published on the Federal Register. The changes to the rule accomplishes two things. First, it makes the existing ADEA regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity. And second, it explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.

“The purpose of the ADEA is to prohibit employment discrimination against people who are 40 years of age or older. Congress enacted the ADEA in 1967 because of its concern that older workers were disadvantaged in retaining and regaining employment. The ADEA also addressed concerns that older workers were barred from employment by some common employment practices that were not intended to exclude older workers, but that had the effect of doing so and were unrelated to job performance.

The ADEA prohibits discrimination against workers because of their older age with respect to any aspect of employment.  In addition to prohibiting intentional discrimination against older workers (known as “disparate treatment”), the ADEA prohibits practices that, although facially neutral with regard to age, have the effect of harming older workers more than younger workers (known as “disparate impact”), unless the employer can show that the practice is based on an RFOA.  This rule concerns only disparate impact discrimination and the Reasonable Factors Other than Age defense to such claims.

The rule responds to two Supreme Court decisions in which the Court criticized one part of the Commission’s existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional. However, it disagreed with the part of the regulations which said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.” The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

RFOA is the standard defense to ADEA impact claims. The final rule revises section 1625.7 of the regulations, which only addresses the RFOA defense, and does not change other regulatory sections that apply to the ADEA’s other affirmative defenses. However, the rule does not preclude an employer from asserting another statutory provision in response to a particular claim. For example, if an employee alleged that a practice required by a seniority system had a disparate impact, the employer could defend the claim by relying on section 4(f)(2) of the ADEA, which precludes using disparate impact analysis to challenge the provisions of a seniority system.

The rule emphasizes the need for an individualized consideration of the facts and circumstances surrounding the particular situation.  It includes the following list of considerations relevant to assessing reasonableness:

• the extent to which the factor is related to the employer’s stated business purpose;
• the extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
• the extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
• the extent to which the employer assessed the adverse impact of its employment practice on older workers; and
• the degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.”

The preceding was provided by the EEOC’s FAQ’s on the ADEA changes. More FAQ’s about the final rule can be found here:  http://www.eeoc.gov/laws/regulations/adea_rfoa_qa_final_rule.cfm

To read the final rule in its entirety, including open comments and responses, click here:
Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act

In terms of analyzing applicant data, do public and private employers use the same yard-stick?

(by Biddle Consulting Group's Marife Ramos, Director of Operations - EEO/AA, and John Piatt, Director EEO/AA - O & CR)

The final Internet Applicant Rule became effective February 6, 2006, one-hundred and twenty days after the date of publication in the Federal Register. While the rule did not apply retroactively to hiring decisions made prior to February 6, 2006 a contractor must have made provisions in their hiring processes to track detailed demographic information about Internet Applicants and retain the records for further analyses after February 6, 2006.

The passing of this rule has cost federal contractors hundreds of millions of dollars in time, development of changes in management in processes/procedures, training and the implementation of costly applicant tracking systems.  It also provided the OFCCP with in-roads into mountains of federal contractor employment data in the private sector and has become their stall-worth for identifying discrimination and obtaining back pay and restitution for individuals affected by discriminatory hiring practices.
 
Have you ever wondered: “If federal contractors are expected to collect, maintain, and analyze employee and transactions data as required by the E.O. 11246, are public agencies also subject to the same expectations? When federal contractors fail to address the requirements of the regulations, there are financial/reporting consequences on the part of the contractors. How about the public agencies, what type of consequences do they face when they fail to address the reporting requirements?”

Below is an excerpt from an annual report from the EEOC (http://www.eeoc.gov/federal/reports/fsp2010_2/index.cfm#ID). In this report, it states that public agencies, through MD-715, are also required to provide comprehensive employment data (particularly applicants for new hires and promotions) to the EEOC on a yearly basis. Yet, only 22% of the public agencies collect the necessary applicant data; (although this is already about a 4% increase from last year’s turn-out). This report will make one wonder: “is the stick from which employers are measured the same for all?”

“22% of Agencies Collect Applicant Flow Data

EEOC's regulations provide that each agency shall establish a system to collect and maintain accurate employment information on the race, national origin, sex and [disabilities] of its employees . . . .[and] use the data . . . in studies and analyses which contribute affirmatively to achiev[e] the objectives of the equal employment opportunity program. 29 C.F.R. §114.601(a) and (e). Section II(E) of MD-715 establishes that a model EEO program must maintain a system that tracks applicant flow data, which identifies applicants by race, national origin, sex and disability status and the disposition of all applications.

The MD-715 report tables currently require agencies to report applicant flow data for new hires and internal competitive promotions in major occupations, for internal selections to Senior Level positions and for participation in career development.

In FY 2010, 42 (22%) of the 192 agencies and subcomponents that submitted MD-715 data, reported collecting comprehensive applicant flow data, up from 33 (18.33%) of the 180 agencies and subcomponents, that submitted MD-715 data, reporting comprehensive applicant flow data in FY 2009. Figure 7 below shows the percentage of agencies that collected comprehensive applicant data on an annual basis. See Appendix III for a detailed list of agencies' status.”

US Labor Department Initiative Finds More Than $1.3 Million in Back Wages Due to 478 Underpaid Massachusetts Employees

From WHD News Release March 29, 2012:

BOSTON — An ongoing enforcement initiative conducted by the U.S. Department of Labor focused on the restaurant industry in Massachusetts has uncovered significant violations of the minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act. To date, investigations by the Boston District Office of the department's Wage and Hour Division have found $1,307,808 in back wages due to 478 employees of multiple establishments. In addition, the division now is assessing liquidated damages, payable to employees, when employers are found in violation.

"The restaurant industry employs some of our country's lowest paid workers, who are vulnerable to exploitation," said Secretary of Labor Hilda L. Solis. "In response to the extensive level of noncompliance we discovered, we will expand our efforts to bring the industry into compliance to ensure that employees receive the minimum wage and overtime wages required by law."

"Our investigations found that several restaurants violated the FLSA by paying employees flat salaries for all hours worked without overtime pay, failing to combine hours worked at multiple locations for overtime purposes, paying incorrect overtime rates to tipped employees, making illegal deductions from employees' wages and failing to keep accurate records of employees' hours," said George A. Rioux, the division's district director in Boston. "Even more serious, our investigations found an emerging trend of misclassifying restaurant workers as independent contractors in order to avoid minimum wage, overtime and record-keeping requirements of the FLSA."

The full article can be found here:  http://www.dol.gov/opa/media/press/whd/WHD20120445.htm

OFCCP Publicly Announces Conciliation Agreement with FedEx

The OFCCP has a policy of publicizing settlements of discrimination and conciliation agreements but they typically do so through their website or through less visible means.  In an interesting move, the OFCCP held a press conference (view the press release) this morning to tout the effectiveness of their enforcement efforts. In terms of Pat Shiu’s comments regarding the “cost” of being a federal contractor, it seems that the “cost” may have to be tabulated in the court of public opinion, too.

The OFCCP was more than happy to announce the settlement of a conciliation agreement with divisions of FedEx (Ground and Post) for what the OFCCP calls “one of the most significant cases of discriminatory hiring practices” in OFCCP history. The conciliation agreement spanned 4 OFCCP regions, 15 states, 23 FedEx facilities and affects a potential pool of 21,000 qualified applicants, with 1,703 part time Package Handler job offers to women and minorities and a financial settlement of $3,000,000 to be distributed among 1,000’s of applicants who were denied employment. 

This announcement sends a clear message to large federal contractors, particularly those with high volume hiring decisions with standardized selection processes, that validation of all aspects of the hiring process has become increasingly more important. Federal contractors should not consider this decision as a one-fluke by the OFCCP; the OFCCP certainly thinks there are more broad sweeping investigations in store and has requested funding to support these investigations in their 2013 budget through Strategic Case Selection http://www.dol.gov/dol/budget/2013/PDF/CBJ-2013-V2-10.pdf.

Feel free to contact us if this brings up questions or concerns regarding your affirmative action planning and hiring practices.

• www.Biddle.com
• staff@biddle.com
• 800-999-0438

Biddle's Dan Kuang to Speak at OFCCP Seminar "Compensation Matters: Best Practices for Fair Pay"

OFCCP Compensation Seminar Invitation:

Compensation Matters: Best Practices for Fair Pay

WHEN:
April 17, 2012. 9:00 AM - 10:30 AM

WHERE:
Alfred Alquist State Building Auditorium
100 Paseo de San Antonio, San Jose, CA 95113

WHAT:
Experts provide advice for employers on compensation best practices. Learn best practice tips on how and why compensation matters to everyone who plays a part in determining wages for employees, from first line supervisors to company policymakers.

WHO:

• William Smitherman, US DOL, OFCCP
• Deborah Randall, US EEOC
• Jenny Erwin, US DOL, Women's Bureau
• Dan Kuang, Biddle Consulting Group
• Jamie Dolkas, Equal Rights Advocates

WHY:
April 17 is national Equal Pay Day. Federal agencies have a renewed focus on employees' wages. Be proactive, prevent problems and learn how fair pay throughout the life cycle of an employee can improve your business' success.

RSVP:
Sion Belvin at belvin.sion@dol.gov or 408-283-5480

OFCCP Webinar: Status of Pending Compliance Evaluations of Entities that Participate in TRICARE Networks

From the OFCCP Webinar Invitation:

The National Defense Authorization Act of 2012 (NDAA) contains a provision relating to the Office of Federal Contract Compliance Program's (OFCCP) jurisdiction over TRICARE subcontractors. Please join OFCCP Director of Program Operations Tom Dowd and Counsel Consuela Pinto for a webinar to explain how OFCCP will enforce the law regarding such subcontractors in light of this provision.

Because the NDAA does not address OFCCP coverage unrelated to TRICARE, the webinar will explain how OFCCP is moving forward with compliance evaluations of entities that participate in TRICARE and also hold another federal contract or subcontract. The webinar also will explain how OFCCP is putting compliance evaluations of those entities for which a TRICARE subcontract is the only basis of jurisdiction “on hold,” in light of the fact that this issue is currently being litigated in the Florida Hospital case.

This event requires registration.

Topic: Status of Pending Compliance Evaluations of Entities that Participate in TRICARE Networks

Host: Brenda Williams Stewart

Date and Time:

• Tuesday, March 27, 2012 2:00 pm, Eastern Daylight Time (New York, GMT-04:00)
• Tuesday, March 27, 2012 11:00 am, Pacific Daylight Time (San Francisco, GMT-07:00)
• Tuesday, March 27, 2012 12:00 pm, Central Time (Saskatchewan, GMT-06:00)
• Tuesday, March 27, 2012 11:00 am, Mountain Time (Arizona, GMT-07:00)

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To register for the online event
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1. Go to https://doltraining.webex.com/doltraining/onstage/g.php?d=661834933&t=a&EA=williamsstewart.brenda%40dol.gov&ET=ec5b6dbab00a0b24a2ac608168d88622&ETR=b21ebfe0a40e49a43ef65e7f86d3e618&RT=MiMxMQ==&p
2. Click "Register"
3. On the registration form, enter your information and then click "Submit".

Once the host approves your registration, you will receive a confirmation email message with instructions on how to join the event.

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For assistance
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You can contact Brenda Williams Stewart at:
williamsstewart.brenda@dol.gov

When are Contractors Required to Identify Veterans with Disabilities?

Many Federal Contractors are left confused regarding their responsibility to solicit Veteran data in the application process, specifically when they are required to identify Veterans with Disabilities. This responsibility is in direct conflict with the American with Disabilities Act, so contractors are left wondering “should I ask” and “when should I ask” for Veteran’s to self-ID.  The EEOC provides guidance for soliciting such information as well as providing specific steps/wording that an employer should use on their voluntary self-ID forms. See the EEOC 's FAQ responses below for guidance.

Source: http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

May an employer ask if an applicant is a "disabled veteran" if it is seeking to hire someone with a disability?
Yes. Although employers generally may not ask for medical information from applicants prior to making a job offer, they may do so for affirmative action purposes. See EEOC Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations Under the Americans with Disabilities Act of 1990 (1995) at www.eeoc.gov/policy/docs/preemp.html. An employer, therefore, may ask applicants to voluntarily self-identify as individuals with disabilities or "disabled veterans" when the employer is:

• undertaking affirmative action because of a federal, state, or local law (including a veterans' preference law) that requires affirmative action for individuals with disabilities; or,

• voluntarily using the information to benefit individuals with disabilities, including veterans with disabilities.

An employer also may ask organizations that help find employment for veterans with disabilities whether they have suitable applicants for particular jobs and may access websites on which veterans with disabilities post resumes or otherwise express interest in employment.

What steps should an employer take if it asks an applicant to self-identify as a "disabled veteran" for affirmative action purposes?
If an employer invites applicants to voluntarily self-identify, the employer must indicate clearly and conspicuously on any written questionnaire used for this purpose, or state clearly (if no written questionnaire is used), that:

• the information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and

• the specific information is being requested on a voluntary basis, it will be kept confidential in accordance with the ADA, refusal to provide it will not subject the applicant to any adverse treatment, and it will be used only in accordance with the ADA.

Information collected for affirmative action purposes must be kept separate from the application to ensure that confidentiality is maintained.

To read more about Veterans and American with Disabilities Act (ADA) click on the following link:

http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

AAP Methodology & Training Webinar Series

Dates:

May 3, 2012 (Part I - Methodology)

May 10, 2012 (Part II - Methodology)

May 17, 2012 (Part III - AutoAAP Software Training)

10:00 a.m. Pacific Time | 1:00 p.m. Eastern Time (each session is 2 hours in duration)

Description: The class is designed for the beginner or for the trained professional who needs a refresher covering the basic requirements for being compliant with Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the Vietnam Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212.

The training presentation will be held in three sessions. Part I and II will focus on AAP methodology and Part III will focus solely on utilizing AutoAAP software to create Affirmative Action Plans. 

HRCI credits are available for Parts I and II. Registrants must attend each session in full to earn certification credits.

BCGi Platinum members may attend these sessions for free but need to register in order to gain access to the online class. (Join BCGi!)

Online Registration:

• Methodology - Parts I and II Only:
  ($99;  No charge for Platinum members)
  If you would like to only attend Parts I and II (AAP Methodology), please register via our online store by going to https://bcginstitute.site-ym.com/store/view_product.asp?id=1032831

• Methodology and AutoAAP Software Training - Parts I, II and III:
  ($149;  No charge for Platinum members)
  If you would like to attend all three sessions, please register via our online store by going to: https://bcginstitute.site-ym.com/store/view_product.asp?id=1032810

EXTRA SAVINGS: Become a BCGi Platinum Member and the AAP Methodology and Software Training webinar series is FREE, along with all of the Platinum Members-Only webinars that BCGi offers throughout the year.

BCGi offers both free Standard and premium Platinum Memberships Join today!

AAAA Comments on the OFCCP's Proposed Sec. 503 Regulations

As the Section 503 comment period came to a close nearly all organizations that commented on the proposed changes commended the DOL and the OFCCP for trying to find viable employment opportunities for individuals with disabilities. However, an equal number of commenters also expressed major concerns regarding the OFCCP’s calculations. One of the largest independent associations, The American Association for Affirmative Action (AAAA), also expressed concern and recently summarized their comments on their blog (quoted below).

Source: http://affirmact.blogspot.com/2012/02/aaaa-comments-on-ofccps-proposed-sec.html

“The American Association for Affirmative Action (AAAA) submitted comments to the Department of Labor, OFCCP regarding its proposed regulations related to Section 503 of the Rehabilitation Act of 1973, as amended. The Association applauded OFCCP’s efforts to remove barriers to those in the disabled community and strengthen employment opportunities for individuals with disabilities and agreed that one of the primary tools for effectuating change in private employment is through the affirmative action obligations affecting government contractors and subcontractors. This has been the intent behind Section of 503 of the Rehabilitation Act of 1973 and its implementing regulations since their inception. We also agreed that the regulations, in their current form, do not seem to have produced significant, measurable improvement in employment opportunities for disabled individuals. Moreover, on a purely practical level, the regulations need to be updated to reflect the ADA Amendments Act.  

Despite the Association’s agreement with the principles supporting OFCCP’s efforts, AAAA has serious concerns with the revised regulations as proposed. Most importantly, AAAA fears that in its efforts to strengthen the regulations governing affirmative action for individuals with disabilities, the Agency will be viewed as overreaching. AAAA also believes that OFCCP has grossly underestimated the time and resources that the contractor community would need to dedicate to implementing these changes. Underestimating the burden associated with these changes will create objections from those in the contractor community who would support OFCCP’s efforts but for this significant, additional burden. 

AAAA provided a detailed examination of various sections of the proposed regulations and, where feasible, offered possible alternatives that address the Association’s concerns. In particular, the association analyzed the burden suggested by the agency and argued that OFCCP had grossly underestimated the time needed to comply with the proposed regulations. In the areas of applicant/employee self-identification, data collection analysis, and the assessment of outreach efforts, the time estimated was far less than the reality would suggest. 

The 7% percent utilization goal, while commendable, raises other questions as well. AAAA questioned how the agency derived the goal and how it plans to implement the requirement. AAAA also does not support sub-goals for certain disabilities in light of the dearth of data to support such goals.”

 Source: http://affirmact.blogspot.com/2012/02/aaaa-comments-on-ofccps-proposed-sec.html

VETS 100-100A Special Announcement

Fair Warning - It is the contractor's responsibility to retain filed VETS 100/100A reports (not the DOL’s) for two (2) years!

Special Announcement: 

2011 VETS 100 Filing Cycle

Due to the unavailability of the VETS 100 System, contractors may still file. Contractors must first download the VETS 100 or VETS 100A form from the VETS website, www.dol.gov/vets/programs/fcp/main.htm, fill out the form and submit electronically to: parker.george@dol.gov.  

Contractors will receive a verification of receipt for their records. These forms will be stored at this location until the VETS 100 System becomes operational. We do not expect the system to be available until July 2012, at which time the VETS 100/100A forms received will be input electronically into the VETS 100 System. 

REMINDER: In accordance with 41 CFR Parts 61-250 and 61-300, it is the contractor's responsibility to retain filed VETS 100/100A reports for two (2) years! 

Special Announcement: 

Effective immediately, customers are no longer required to request VETS 100/100A Reports via FOIA. 

Due to the unavailability of the VETS 100/100A System, we are unable to provide contractors copies of their 2010/2011 VETS 100 reports. If you are in need of a VETS 100/100A report, download the VETS 100 or VETS 100A form from the VETS website, www.dol.gov/vets/programs/fcp/main.htm, fill out the form and submit electronically to: parker.george@dol.gov. 

If you filed a VETS 100/100A report prior to the ending of the filing cycle and need a copy of your report, send your name, company name, EIN and DUNS number to parker.george@dol.gov and they will locate and send your information. 

REMINDER: In accordance with 41 CFR Parts 61-250 and 61-300, it is the contractor's responsibility to retain filed VETS 100/100A reports for two (2) years!

The President’s 2013 Budget - Expanding Opportunities for People with Disabilities

Below is an excerpt from the President's 2013 Budget showing an emphasis on expanding opportunities for people with disabilities.


Source: http://www.whitehouse.gov/omb/factsheet/expanding-opportunities-for-people-with-disabilities

"We now face a make-or-break moment for the middle class and those trying to reach it. After decades of eroding middle-class security as those at the very top saw their incomes rise as never before and after a historic recession that plunged our economy into a crisis from which we are still fighting to recover, it is time to construct an economy that is built to last. The President’s 2013 Budget is built around the idea that our country does best when everyone gets a fair shot, does their fair share, and plays by the same rules. We must transform our economy from one focused on speculating, spending, and borrowing to one constructed on the solid foundation of educating, innovating, and building. That begins with putting the Nation on a path to living within our means – by cutting wasteful spending, asking all Americans to shoulder their fair share, and making tough choices on some things we cannot afford, while keeping the investments we need to grow the economy and create jobs. The Budget targets scarce federal resources to the areas critical to growing the economy and restoring middle-class security: education and skills for American workers, innovation and manufacturing, clean energy, and infrastructure. The Budget is a blueprint for how we can rebuild an economy where hard work pays off and responsibility is rewarded.

 To expand opportunities for people with disabilities, the 2013 Budget will:

• Increase Funding for the Education of Children with Disabilities.

• Encourage Workforce Innovation to Improve Outcomes for People with Disabilities. 

• Support Workers with Disabilities.

• Reduce Social Security Appeals Hearing Backlog.

• Support Disability Research.

• Provide Housing for Persons with Disabilities.

• Expand Passenger Rail Options.

• Support the Medical Needs of Veterans.

• Improve Effectiveness of Disability Programs.

• Support the Rights of People with Disabilities Internationally; and

• Strengthen Anti-Discrimination Enforcement - Even in tough budget times, the substantial investments that have been made by the Administration to strengthen civil rights enforcement against racial, ethnic, sexual orientation, disability, religious, gender, and gender identity discrimination continue in the 2013 Budget. The Budget proposes an increase for the Community Relations Service in the Department of Justice to fight hate crimes and provides a $14 million, or 4 percent, increase over the 2012 enacted level for the Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing Federal laws that make it illegal to discriminate against a job applicant or an employee. This investment will allow EEOC to add staff to reduce the agency’s backlog of private-sector discrimination charges."

Source: http://www.whitehouse.gov/omb/factsheet/expanding-opportunities-for-people-with-disabilities

Preparing for an OFCCP Audit

Join us for a Webinar on February 29th.

BCGi, the EEO HR training arm of Biddle Consulting Group, will be presenting an important webinar on OFCCP audit preparation. With the ever changing landscape of OFCCP audits, it has become more and more difficult for Federal contractors to understand how to assemble their AAP for audit submittal. It is critical that contractors understand how to reduce their exposure to the OFCCP through legitimate means by analyzing the right data in their AAP and submitting the appropriate information during a desk audit.

Join the BCG consulting team of Fe Ramos and Mike Bostick on February 29th as we navigate the do's and dont's of desk audit submittals.

Space is limited. Reserve your free webinar seat now at:
http://www.bcginstitute.org/events/event_details.asp?id=217021

2013 OFCCP Budget

On Monday, February 13, 2012, DOL released the 2013 DOL Budget information, including detailed budget documentation for the OFCCP.  As evidenced through details of the budget, the OFCCP feels very confident that they will continue to expand their compliance efforts in the areas of Section 503, VEVRAA, construction and Equal Pay.  Highlights to the OFCCP’s proposed budget are found below.

FY 2013

The request for OFCCP is $106,415,000 and 755 FTE (full-time employees) to focus on three strategies:

Strategy One:

Ensuring quality evaluations by compliance officers (while increasing the overall number of evaluations)

• At this funding level, OFCCP will complete 4,530 thorough compliance evaluations - a 12 percent increase over FY 2012 levels.
• To increase the thoroughness and breadth of its investigative efforts, OFCCP continues to use its Active Case Enforcement (ACE) system by requiring OFCCP compliance officers to conduct thorough desk audits of all cases, increase onsite activity, and increase compliance evaluations focused specifically on Sections 503 and VEVRAA compliance. To help address the high level of unemployment among the nation’s veterans and individuals with disabilities, OFCCP will devote considerable resources to ensure that contractors recruit, hire, and retain veterans and individuals with disabilities.
• In 2013, OFCCP anticipates continuing the effort to combat pay discrimination through increasing the number and quality of its investigations of contractor pay practices. Narrowing the persistent pay gap between men and women is a key priority for OFCCP and reflects its commitment to the work of the President’s National Equal Pay Enforcement Task Force. OFCCP will continue to refine its enforcement practices by implementing the guidance and protocols currently under development that are expected to launch in FY 2012, as well as by continuing the agency’s significant training program for compliance officers in compensation enforcement.
• Reflecting OFCCP’s commitment to enforcing the rights of women and under-represented groups in the construction trades, OFCCP will monitor gender, racial and ethnicity-based discrimination in the construction industry. In FY 2013, OFCCP will conduct 450 construction reviews, with particular enforcement efforts directed toward Mega Projects - an 11 percent increase over FY 2012 levels. Mega Projects are defined as federal or federally-assisted construction projects that last longer than one year, and are likely to have a major employment or economic impact on a community.

Strategy Two:

Increasing the technical proficiency of OFCCP staff

• Although OFCCP does not currently possess empirical evidence showing the causal relationship between their proposed strategies and their outcome goals, the agency has begun tracking the quality of its case audits to indicate whether investigations are timely completed and whether quality audit deficiencies decrease over time.
• …OFCCP will focus on identifying deficiencies found in routine quality audits of closed cases as major or technical. This will allow the agency to better inform and prioritize training needs to improve the quality and consistency of compliance evaluations. OFCCP is proposing six continuing education and skills development training courses during FY 2013.
• Eight training courses in support of the agency’s regulatory agenda will be offered in FY 2013. This training will focus on the following regulatory changes and their impact on the compliance evaluation process:

1. Section 503;
2. VEVRAA;
3. construction; and
4. sex discrimination.

Two courses will be offered in each of the aforementioned areas to ensure that all OFCCP personnel are well grounded in substantive program areas.

• Lastly, OFCCP will offer one course aimed at managers. Potential topics include performance management, efficient use of resources, and budget-performance integration.

Strategy Three:

Expanding the knowledge base of workers and federal contractors through education and outreach

• In FY 2013, OFCCP proposes to target its compliance assistance to achieve the greatest impact by:

1. Emphasizing the importance of providing compliance assistance as an integral part of the compliance officer’s enforcement activities;
2. Leveraging existing contractor networks such as Industry Liaison Groups (ILGs) and multi-establishment corporations to promote corporate-wide compliance;
3. Focusing on contractors that largely employ at-risk populations identified through OFCCP enforcement activities;
4. Assisting new and small contractors;
5. Creating synergy between their rulemaking and their training and staff development agendum.

Irrespective of regulatory changes, large Federal Contractors should pay special attention to what the OFCCP refers to as, “Strategic Case Selection.” These potential enterprise-wide investigations will also be a focus in 2013.

“Strategic Case Selection – OFCCP will improve the effectiveness of the way in which the agency conducts compliance evaluations by implementing a strategic case selection process to address programmatic priorities. Under this process, OFCCP will focus its enforcement efforts on a strategic mix of compensation, hiring, VEVRAA, Section 503, and other investigations. Based on the strength of the evidence of a potential violation, the agency will identify priority cases in each of the aforementioned areas and allocate resources accordingly to resolve them.

This process will also be used to identify similar issues that arise within corporations and industries, and to identify potential cases for enterprise-wide investigations. It will also improve the effectiveness of compliance evaluations by ensuring that the agency identifies patterns of violations and non-compliance within a corporation. Enterprise-wide investigations, based on patterns of violations and identification of egregious violators, will enable the OFCCP to remedy deficiencies across an entire corporate structure, rather than one facility at a time. Coupled with a renewed collaborative enforcement approach with the Office of the Solicitor (SOL) and other Departmental agencies, this enforcement strategy will increase the rate of compliance for contractors who engage in egregious violations.”

DETAILED WORKLOAD AND PERFORMANCE – The OFCCP estimates that it will increase the number of Service and Supply audits in FY 2013 but has not asked for additional staff in their budget.  In light of the pending regulatory changes in 2012/2013 and the potential additional steps the OFCCP will be required to take to satisfy their ACE procedures, it will be interesting to see how effective the OFCCP will be in achieving their goal of completing 4,000 audits in 2013.

	FY 2011 Enacted		FY 2012 Enacted	FY 2013 Request
Office of Federal Contract Compliance Programs	Target	Result	Target	Target
Total Number of Compliance Evaluations Completed	3,550	4,014	3,980	4,530
Supply and Service Evaluations Completed	3,225	3,382	3,500	4,000
FAAP Supply and Service Evaluations Completed	50	82	80	80
Number of Construction Evaluations Completed	275	550	400	450
Percent of cases with major deficiencies (Quality Case Audits)	--	--	19.00%	15.00%
Percent of cases with technical deficiencies (Quality Case Audits)	--	--	40.00%	30.00%
Percent of Discrimination Cases Closed within 730 Days of Opening	--	--	55.00%	65.00%

To read the entire budget request and learn more about the strategic directives of the OFCCP, click on the following link:
http://www.dol.gov/dol/budget/2013/PDF/CBJ-2013-V2-10.pdf

Related Resource:

BCGi Webinar: 2011 in Review and OFCCP's 2013 Proposed Budget

BCGi (Biddle Consulting Group's Institute for Workforce Development) will be hosting a webinar highlighting and summarizing all of the changes and proposed changes made by the OFCCP in 2011.These include potential changes to compensation analyses, proposed changes to the audit letter,  VEVRAA (Vietnam Era Veterans' Readjustment Assistance Act; Section 4212) NPRM (Notice of Proposed Rulemaking), and proposed hiring goals for individual's with disabilities.

Please join Dr. Patrick Nooren and John Piatt, Wednesday March 7th for this free webinar.

For registration information, please visit the BCGi website today.

BCG to Acquire Kellerman and Associates

Biddle Consulting Group (BCG), an HR industry leader offering EEO, Employee Selection and Affirmative Action consulting services and software since 1974, has entered into a definitive agreement to acquire Kellerman and Associates. Kellerman and Associates, founded by Stephen Kellerman, has been providing expert Affirmative Action consulting services to clients nationwide since 1984. Mr. Kellerman will continue to provide services and support to existing clients during the transition. Kellerman and Associates clients will now be able to benefit from the larger BCG family of services, including access to BCG’s team of Ph.D statistics, validation, and EEO/AA experts as well as platinum-level access to Biddle Consulting Group Institute (BCGI) webinars, training opportunities, publications, and blogs.

According to Patrick Nooren, Ph.D., Executive Vice President of Biddle Consulting Group,

“We are excited to have this opportunity to partner with such an established and respectable name as Kellerman and Associates. For almost three decades, they have been offering a high-level of expertise and support. We look forward to continuing in that tradition.”

U.S. Department of Labor Web Chat: 2013 Budget Q & A

Monday, February 13 at 1:30 p.m. EST Secretary Solis and other DOL leaders will answer your questions about the Fiscal Year 2013 DOL budget request. Please go to http://www.dol.gov/budget/chat-budget-20120213.htm for more information and to set a reminder for Monday's chat.

WRP Webinar on Recruiting and Retaining Individuals with Disabilities

Workforce Recruitment Program

At 1 p.m. on February 28, the Workforce Recruitment Program (WRP) will sponsor a webinar titled Talent Has No Boundaries: An Employer's Guide to Recruiting and Retaining Individuals with Disabilities.

Workforce Recruitment Program webinar details:

Title: Talent Has No Boundaries: An Employer's Guide to Recruiting and Retaining Individuals with Disabilities

When: February 28, 2012 from 1:00 - 2:00 P.M.

Topics: Include the following:

•  Background on WRP's mission
• How to use the WRP website to find talented employees
• How to provide efficient accommodations at your worksite
• Business success stories that inform and inspire
• What tools and resources are available within the federal government to support and advance your employment efforts

Register: by email at wrpmarketing@dol.gov

This webinar is being produced by the U.S. Department of Labor's Office of Disability Employment Policy (ODEP) and the U.S. Department of Defense's Office of Diversity Management & Equal Opportunity (ODMEO).

Equal Pay App Challenge

The Department of Labor and the National Equal Pay Task Force have launched a contest to challenge developers to create an app that educates users about the pay gap and promotes equal pay.

About the Equal Pay App Challenge

Nearly 50 years after President Kennedy signed the Equal Pay Act, on average women are still paid less than their male counterparts for doing comparable jobs – that’s called the pay gap. It means that each time the average woman starts a new job, she’s likely to start from a lower base salary, but it also means that over time the pay gap between her and her male colleagues is likely to become wider and wider.

For the average working woman, the pay gap means $150 less in her weekly paycheck, $8,000 less at the end of the year, and $380,000 less over her lifetime. For women of color and women with disabilities, the disparity is even bigger.

Your challenge is to use publicly available labor data and other online resources to educate users about the pay gap and to build tools to promote equal pay.
Each submission should achieve at least one of the following goals:

• Provide greater access to pay data by gender, race, and ethnicity:

These features should provide data that would be helpful to women throughout their careers as they negotiate starting pay, request a promotion or a raise, or consider switching fields to a more lucrative career path. Participants must ensure that their submission complies with all applicable laws and regulations.

• Provide tools for early career coaching:

These features should use publicly available data to create an interactive online experience to educate young women on the pay gap and enable informed decision- making when selecting a career path.

• Help inform negotiations:

These features should provide feedback, tips, and critiques that guide users through the process of negotiating starting salary, pay rate, job level, or requesting a promotion or raise. These tools should also educate individuals about their legal rights.

• Promote online mentoring:

These features should expand individuals’ access to broader communities and mentorship opportunities by providing a means to connect with others for career guidance.

[Source: http://equalpay.challenge.gov/details/about]

Detailed information and submission guidelines for the Equal Pay Gap Challenge are available at http://equalpay.challenge.gov .

Also, you can read more about the app challenge in the Labor Department's press release.

OFCCP Extends NPRM Comment Period

“On December 9, 2011, OFCCP published a proposed rule entitled, Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals with Disabilities (76 FR 77056). OFCCP was to receive comments on this NPRM on or before February 7, 2012.

Various organizations and entities submitted requests to extend the comment period by an additional 90 days or more. We considered these requests and determined that it is appropriate to provide an additional 14-day period for comment on the proposed regulation. We are, therefore, extending the comment period until, Tuesday, February 21, 2012.”

Source: http://www.dol.gov/ofccp/pdf/503_NPRM_Extended.pdf

To learn more about this NPRM, please click on the following Affirmative Action News posts:
http://affirmativeactionnews.blogspot.com/2012/02/house-committee-requests-extension-of.html
http://affirmativeactionnews.blogspot.com/2012/01/neli-webinar-discusses-ofccps-proposed.html
http://affirmativeactionnews.blogspot.com/2012/01/ofccp-webinar-presentation-proposed.html

House Committee Requests Extension of NPRM Open Comment Period

Will the Department of Labor and Secretary Solis head the call to extend when the plea comes from the Committee on Education and the Workforce, U.S. House of Representatives?

With the OFCCP’s Notice of Proposed Rulemaking (regarding individuals with disabilities) open comment period scheduled to close on February 7, 2012, special interest groups have requested extensions to the comment period, but to no avail. On January 27th, House members John Kline and Phil Roe are attempting to extend the comment period by 90 days through a letter sent to the Department of Labor and Secretary Solis. Within the letter, they request the OFCCP to furnish additional documentation regarding:

1. Identify and explain OFCCP’s statutory authority under Section 503 to establish an numerical hiring standard.


2. Identify and explain the basis for OFCCP’s decision that federal contractor good faith efforts are insufficient affirmative action under Section 503.


3. Identify and explain OFCCP’s statutory authority to require contractors to ask job applicants to self-identify as a qualified individual with a disability, given that the ADA prohibits disability-related questions before an offer of employment has been made.


4. Identify and explain the basis for OFCCP’s assumption that job applicants and contractors’ current employees would understand the legal definition of “disability”, as defined in the NPRM’s prescribed self-identification notice.


5. Explain how the OFCCP arrived at the assumption that contractors would only spend 30 minutes per year to explain their reasoning and circumstances for rejecting individuals with disabilities for vacancies and training programs.


6. Under proposed section 60-741.44(d), OFCCP failed to consider the costs federal contractors would incur to make their “electronic or online job application systems compatible with assistive technology commonly used by individuals with disabilities, such as screen reading and speech recognition software. Likewise, under proposed section 60-741.44(g), OFCCP failed to consider the economic burdens associated with discussing the NPRM’s new affirmative action requirements with all employees during, for example, orientation and training events. Explain why OFCCP failed to consider the costs of contractors’ compliance with these provisions or proposed sections 60-741.44(d)and (g).

Letter to Secretary Solis:
http://edworkforce.house.gov/UploadedFiles/2012-01-27_-_Letter_to_Sec_Solis_re_OFCCP.pdf

Within the months ahead, a contractor’s responsibilities associated with additional data collection/retention will likely increase. However, wholesale changes to HRIS and reporting systems today would not be the prudent approach. BCG recommends discussing the issues internally now, and preparing your budgets for the pending changes in requirements, but to hold-tight on making any wholesale changes until the proposed rule is finalized.