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.http://www.dol.gov/ofccp/ 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.

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.

http://www.dol.gov/regulations/chat-ofccp-201107.htm

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

All,

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

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 http://www.eeoc.gov/eeoc/initiatives/e-race/bestpractices-employers.cfm.

OFCCP Posts New Directive Restoring Functional AAPs

Today, the OFCCP posted a new directive bringing Functional Affirmative Action Plans back to life after an extended review by Director of OFCCP, Patricia Shiu.

See an excerpt from the release in addition to a web link to the full release below.


News Release
OFCCP News Release: [06/28/2011]
Contact Name: Jason Surbey or Dolline Hatchett
Phone Number: (202) 693-4668 or x4651
Release Number: 11-0973-NAT

US Labor Department restores and updates Functional Affirmative Action Program process for federal contractors and subcontractors

WASHINGTON — The U.S. Department of Labor's Office of Federal Contract Compliance Programs has released a new directive to outline the process by which federal supply and service contractors can apply for Functional Affirmative Action Program agreements, which can be viewed at

http://www.dol.gov/ofccp/regs/compliance/directives/dir296.htm

"The FAAP is back and is better than before," said OFCCP Director Patricia A. Shiu. "Over the past year, I have listened to comments from the contractor community and employee groups, and determined that this is a useful tool for ensuring that federal contractors and subcontractors meet their obligations to provide equal employment opportunity for everyone. I am pleased to share updated guidance that responds to the feedback we received while also renewing our commitment to ensuring discrimination-free workplaces."

OFCCP Extends Comment Period for Proposed Changes to Veteran Regulations

OFCCP posted the following notice on their website:

VEVRAA NPRM Comment Period Extended

On April 26, 2011, the Office of Federal Contract Compliance Programs (OFCCP) published in the Federal Register a notice of proposed rulemaking (NPRM). This NPRM (76 FR 23358) proposes revising regulations implementing the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended.

The original comment period is scheduled to end on Monday, June 27, 2011. After receiving several requests for extensions, OFCCP is extending the comment period for this NPRM for 14 days until Monday, July 11, 2011. This action will provide all interested persons additional time to analyze the issues and provide their comments on the NPRM. Parties interested in commenting can view the NPRM and submit comments by using the Federal eRulemaking Portal www.regulations.gov and referencing RIN 1250-AA00.

OFCCP is publishing a Federal Register notice announcing this two-week extension of the comment period.

Auditing for Adverse Impact: Background Screening, Employment Testing, and Reductions in Force Webinar Announced

Free Webinar on July 12

In recent years, the Equal Employment Opportunity Commission and the Department of Labor's Office of Federal Contract Compliance Programs have announced major shifts in their enforcement priorities, from intentional discrimination to systemic discrimination. Unlike intentional discrimination, systemic discrimination focuses on facially neutral employment practices (e.g., pre-employment tests, promotional decisions, and RIF selection criteria) that negatively impact certain groups of employees at higher rates than others (a/k/a "adverse impact").

Given this additional scrutiny, employers must ask:

1. Do our tests and screening criteria result in adverse impact against individual groups?


2. Are our tests and screening criteria even useful at identifying better-qualified applicants/employees; if not, then why are we using them?

Now more than ever, employers should be asking these questions before landing on the EEOC's or OFCCP's systemic radar. Patrick Nooren, PhD, of Biddle Consulting Group, joins attorney Merrily Archer of Fisher & Phillips LLP and formerly the EEOC, to explain what "adverse impact" means, and provide training on how to use a free online tool to analyze your organization's selection processes and how to identify if your tests are useful in the first place.

This hour long webinar is free, but registration is required. Once your registration is complete you will receive an email confirmation with instructions on how to join the webinar. Participation in this webinar has been approved for one hour of HRCI credit.

Register at the BCG Institute for Workforce Development website