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

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.

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.”

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

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

OFCCP Webinar Presentation: Proposed Revisions to Section 503 Regulations

On December 9, the U.S. Department of Labor announced a proposal to strengthen the affirmative action requirements of federal contractors to improve employment for individuals with disabilities. This historic effort to revise and update Section 503 of the Rehabilitation Act has generated considerable interest from workers, advocates, employers and other stakeholders as evidenced by the high participation rates for two informational Webinars OFCCP held during December 2011.

Based on this demand, the OFCCP is offering another Webinar on the Section 503 NPRM on January 11, 2012 from 2:00 p.m. to 3:30 p.m. OFCCP Branch Chief for Policy Naomi Levin will review highlights of the proposed rule and discuss how you can weigh in on the process.

The OFCCP invites you to attend this Web seminar using WebEx. This event requires registration.

Meeting Details:

Topic: Section 503 of the Rehabilitation Act Notice of Proposed Rule Making
Date: Wednesday, January 11, 2012
Time: 2:00 pm, Eastern Standard Time (New York, GMT05:00)

To register for the online event:

1. Click here to register for the online event.
2. Click "Register".
3. On the registration form, enter your information and then click "Submit".

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

OFCCP Sends Corporate Scheduling Announcement Letter (CSAL)

The OFCCP (Office of Federal Contract Compliance Programs) has once again sent out the CSAL (Corporate Scheduling Announcement Letter) to Federal Contractors. The CSAL gives Federal contractors advance notice that their facilities have been placed on an audit list and will most likely be audited within the coming weeks.

CSAL Sample (December 2011): http://www.dol.gov/ofccp/regs/compliance/CSAL_Letter_21DEC11.pdf

What should you do if you receive a CSAL? Get assistance immediatly!

Find a consultant with an excellent track record of helping clients successfully navigate through audits. Your AAP needs to be "audit ready" and you need to be prepared to address problem areas within your AAP prior to delivering your AAP to the OFCCP.

Remember, the OFCCP is particularly interested in the following:

1. Adverse Impact in Applicants vs. Hires
2. Validation studies/reports of pre-employment tests
3. Pay disparity where differences in pay exceed $2,000 and 2%

Please note: If you have calendar AAPs you are particularly vulnerable because your AAP may not be complete prior to receiving an audit letter. And, if you write fiscal AAPs and you are six months into your AAP year you will be required to submit up-to-date data along with your AAP.

A Case for Reviewing Hiring and Selection Processes

Based on a compliance evaluation of Nishimoto Trading Co.'s Santa Fe Springs facility conducted by OFCCP's Los Angeles District Office, investigators determined that Nishimoto failed to ensure qualified job applicants received equal consideration for employment without regard to gender as required by Executive Order 11246. Under the terms of the settlement agreement, Nishimoto will extend job offers to 14 women in the original class as sales associate positions become open.

Nishimoto Holding Company seeks to improve training for personnel involved in the selection process and will undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law and immediately correct any discriminatory practices.

Companies can proactively assess their selection processes to minimize risk.

Review the outcome of the Nishimoto Trading Co. gender discrimination case

OFCCP Audits 101: What Happens When You Withhold Compensation Info and/or Data?

If you are thinking of withholding compensation information and/or data from the OFCCP during an audit, think twice. The US District Court ruled that the United Space Alliance will have to provide access to information to the US Labor Department to address the issues raised during its initial compliance review.

Read the complete article:

US district court rules United Space Alliance must give US Labor Department access to information for review of its Cape Canaveral, Fla., facility [11/15/2011]

Final Comments Due: OFCCP's Scheduling Letter and Itemized Listings

Final comments regarding the OFCCP’s request to change the Scheduling Letter ((OMB NO. 1250-0003 (formerly 1215-0072)) and accompanying Itemized Listings are due tomorrow, October 28, 2011. Comments may be submitted through any of the following methods and should reference OMB Control Number 1250-0003:

• By mail:
  
  Office of Information and Regulatory Affairs
  
  Attn: OMB Desk Officer for the Department of Labor-OFCCP
  
  Office of Management & Budget, Room 10235
  
  Washington, D.C. 20503


• By facsimile: 202-395-6881


• By email: OIRA_submission@omb.eop.gov

Review comments at:
http://www.regulations.gov (type in keyword "2011-11570")

Supporting Documentation:

http://www.regulations.gov/#!documentDetail;D=OFCCP-2011-0003-0006

OFCCP: Federal Contractor Agrees to Pay $600,000 to Applicants in Recent Hiring Discrimination Case

The U.S. Department of Labor's Office of Federal Contract Compliance Programs today announced that federal contractor Caviness Beef Packers Ltd., doing business as Palo Duro Meat Processing Inc. in Amarillo and Caviness Packing Co. in Hereford, has agreed to a settlement resolving findings that the company discriminated against job applicants on the bases of race and gender by rejecting them for positions at the company's two meat processing facilities.

Read more about this hiring discrimination case at: http://www.dol.gov/opa/media/press/ofccp/OFCCP20111521.htm

Alcoa Mill Products Inc. Settles Discrimination Case with US Department of Labor

Alcoa Mill Products entered into a conciliation agreement with the Office of Federal Contract Compliance Programs (OFCCP). The terms of the conciliation agreement included paying back wages to 37 Hispanics and African-Americans in the amount of $484,656.19 and to two women in the amount of $35,516.88. Job offers will also be extended to nine of these individuals as positions become available. Alcoa Mill also agreed to spend $20,000 on equal opportunity, anti-harassment and sensitivity training for its personnel who are involved in the hiring process.

During a compliance evaluation of Alcoa's Lancaster, PA location, the OFCCP found that Alcoa Mill failed to meet its obligations as a federal contractor in ensuring that equal opportunity in employment is extended to all applicants without regard to race, sex, religion, color, or national origin. Director Patricia Shiu said, "No worker should be denied a job because of factors that have absolutely nothing to do with his or her ability to accomplish the work. I am glad we reached a fair settlement with Alcoa Mill Products, one that not only provides financial remedies for the affected victims, but also creates opportunities for good jobs."

OFCCP Invites You to Their "Active Case Enforcement Procedures" Webinar

Webinar Title: Active Case Enforcement Procedures
Date: Tuesday, May 17, 2011
Time: 2:00 PM - 3:30 PM EDT

OFCCP invites you to learn more about the Active Case Enforcement Procedures (ACE) it is now using to conduct compliance evaluations. First implemented in January 2011, ACE replaces the Active Case Management (ACM) protocol, and features full desk audits, increased onsite evaluations, focused evaluations, and full reviews.

During this webinar Kelley Smith and Margaret Kraak of OFCCP’s Policy Division will explain what contractors can expect when scheduled for a Supply & Service compliance evaluation using ACE procedures, including a discussion of key terms and how ACE procedures differ from ACM. We hope you will be able to join us, and encourage you to submit any questions you have about ACE on your registration form.

Register for OFCCP Active Case Enforcement webinar here.

Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/803477832