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OFCCP Implements New Veteran Employment Program – Hire Military Veterans and Possibly Draw A Three Year Exemption from OFCCP Compliance Reviews
OFCCP has created a program to encourage the employment of military veterans by formally recognizing federal contractors and subcontractors that have undertaken successful efforts to employ covered veterans. The program, Good-Faith Initiative for Veterans Employment (G-FIVE Initiative), provides a three year exemption from OFCCP compliance reviews for those contractor or subcontractor establishments that receive a G-FIVE Rating (unless there is reason for OFCCP to believe discrimination exists).
Contact us to find out how to qualify or to obtain assistance with this initiative.
OFCCP Web site: http://www.dol.gov/esa/ofccp/regs/compliance/directives/dir282.htm
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OFCCP SHOWS THEY STILL HAVE ENFORCEMENT MUSCLE
Record Breaking Financial Remedies in FY 07
In Fiscal Year 2007, OFCCP enforcement efforts resulted in a record $51,680,950 (that would be MILLION) in back-pay and annualized salary and benefits for 22,251 American workers (another record number). These 22,251 workers were subjected to unlawful employment discrimination. The majority of those recipients (98%) benefited from the OFCCP’s efforts through cases of systemic discrimination / class discrimination based upon an unlawful personnel policy or practice.
Take note: In addition to the fact that systemic discrimination cases are the bulk of the OFCCP’s discrimination findings, OFCCP also asserts that the huge (and continued) increase in findings and settlements is directly tied to the way in which contractors are selected for audit (the process of who passes the desk audit and who gets a friendly visit on-site). Not only does this method ensure more employers are audited, it ensures they are focusing their time and energy on those employers who have statistical RED FLAGS informing them of potential problems. OFCCP also attributes much of their success on their new method to identify first tier contractors (Contracts First project). They are going to continue finding federal contractors who have been quietly hiding behind the EEO-1 form).
Do you know what your personnel activity statistics would tell the federal government? If not, you are open to be included in the statistics for next year. Contact our offices today to find out how to ensure your personnel policies and procedures are not fodder for the OFCCP Compliance Officer looking for a systemic case.
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FEDERAL CONTRACTORS: Check out E-Verify – You may soon be required to verify immigration information through this Homeland Security program. We will keep you informed as the Executive Order goes through the approval process. In the meantime, check out E-Verify at: www.dhs.gov/E-Verify
Executive Order: Amending Executive Order 12989, as Amended
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VETS-100 CHANGES ARE FINAL
On Monday, May 19, 2008, the Veterans' Employment and Training Service
(VETS) in the U.S. Department of Labor, issued its final regulations,
updating the VETS-100 report. Most federal contractors must file a
VETS-100 report each year. It contains information about the known
employees who have experience in the uniformed services of the United
States.
In 2002, Congress passed the Jobs for Veterans Act (JVA). That
legislation changed the categories and definitions of veterans that
government contractors are required to track in their workforce and now
the VETS-100 form has been updated to match those updated categories.
New regulations have been added at 41 CFR 61-300 to cover this updated
form content. Federal contractor affirmative action obligations for
veterans under the JVA are described at 41 CFR 60-300. Vietnam Era
Veterans are no longer singled out. Those employees who identify themselves as Vietnam Era Veterans should be able to qualify under one of the new categories.
New categories for veterans are:
o Disabled Veterans
o Other Protected Veterans
o Armed Forces Service Medal Veterans
o Recently Separated Veterans
For a copy of a PDF version of the Federal Register posting of this
final announcement, go to:
http://www.dol.gov/vets/programs/fcp/federal_contractor_program_fs.htm
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EEOC ISSUES NEW GUIDELINES FOR VETERANS WITH SERVICE-
CONNECTED DISABILITIES UNDER ADA AND USERRA
The EEOC’s web site now has two sets of guidelines for employers who hire veterans with service-connected disabilities. The guidelines specify the differences between employer responsibilities under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA).
These two federal laws provide important protections for veterans with disabilities. USERRA is enforced by the U.S. Department of Labor (DOL) and the ADA is enforced by the EEOC.
If you have veterans with disabilities in your workforce you will want to review both of these documents. One document tackles ten key questions about the issues involved. Learn: "How does USERRA differ from the ADA?" to "May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?"
The second document discusses the same issues from the veteran's viewpoint. It details how to appropriately handle the disability issue when seeking employment and what protections are offered by these laws.
www.eeoc.gov/facts/veterans-disabilities.html
www.eeoc.gov/facts/veterans-disabilities-employers.html
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OFCCP UPDATES VEVRAA REGULATIONS FOR JOB LISTING
REQUIREMENT
On April 7, 2008, the Office of Federal Contract Compliance Programs
(OFCCP) published its final rule governing the regulations at 41 CFR 60-250 pertaining to the listing of job openings with state employment agencies. Until now there has been a difference in requirements between 60-250 and 60-300 which implements the Jobs for Veterans Act (JVA) of 2002.
This final rule revises the regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA). The regulations in part 60-250 implement the nondiscrimination and affirmative action provisions of VEVRAA prior to their amendment in 2002 by the JVA, and apply to contracts entered into before December 1, 2003. This final rule revises the mandatory job listing provision in the part 60-250 regulations to provide that listing employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the mandatory job listing requirements under the part 60-250 regulations.
Since the elimination of America's Job Bank in 2007,all job openings must be listed with the local state employment service (as in the ‘old days of OFCCP’). There are the same three exceptions provided for in these regulations: Jobs that are at the senior executive level, jobs that are going to last only 3 days or less, and jobs that will only be filled from internal sources.
The regulations covering government contracts prior to December 1, 2003, and those covering contracts following that date are now lined up.
For a copy of the final rule go to:
http://edocket.access.gpo.gov/2008/E8-7123.htm
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EVERY EMPLOYER SHOULD HAVE AN EFFECTIVE EEO COMPLAINT PROCEDURE
Employers can protect themselves from liability for harassment under Title VII by maintaining adequate complaint procedures and taking prompt remedial action in response to harassment complaints. However, the 7th Circuit EEOC v. V&J Foods Inc. the key word to winning a case is “adequate”—complaint procedures must be thorough and easy to understand.
In V&J Foods, the plaintiff, a 16-year-old girl, accused the store manager of making several unwanted sexual advances. After several complaints from the teenager and her mother to the plaintiff’s co-workers and supervisors, the store manager fired the girl. The plaintiff sued her employer for sexual harassment, but the district court dismissed the case because the plaintiff failed to follow the complaint procedure set up by the company.
On appeal, the 7th Circuit reversed the district court’s decision after finding the employer’s complaint procedure to be insufficient. The process instructed employees to report harassment to their district manager. However, the policy failed to provide contact information, and did not provide a method for employees to bypass their supervisors when they feared retaliation or when they were the perpetrators of the harassment.
Employers should review their complaint procedures to ensure they are understandable and effective. If you don’t have one, contact us, we will be happy to help.
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Second FY 2008 OFCCP Scheduling (To Be Audited) List Released
A second list of supply and service contractor establishments will be available to OFCCP regional offices beginning on March 10, 2008 for scheduling of compliance evaluations during this scheduling cycle (currently, October 1, 2007 through September 30, 2008). The first release for FY 2008 was made available to the regional offices for scheduling on October 1, 2007.
This release includes approximately 5000 facilities that have either self-identified as being an establishment of a Federal contractor, or have been identified as such by OFCCP. OFCCP generated this list through its Federal Contractor Selection System (FCSS) using multiple information sources and analytical procedures to select contractors for evaluation, including a mathematical model that ranks Federal contractor establishments based on an indicator of potential workplace discrimination. The list also includes a number of establishments identified through external Federal contract databases as part of OFCCP's Contracts First Initiative. The list excludes establishments based on a variety of factors, including, for example, establishments that are currently undergoing a compliance evaluation, were evaluated within the last 24 months, or have received the Secretary of Labor's Opportunity Award or an Exemplary Voluntary Efforts Award within the last three years. Additionally, Federal contractor establishments covered by Functional Affirmative Action Program (FAAP) agreements with OFCCP and those subject to a Corporate Management Compliance Evaluation (CMCE) are selected for evaluation through a separate process.
OFCCP has mailed a Corporate Scheduling Announcement Letter (CSAL) to the Chief Executive Officer (or designated point of contact) of each parent company with more than one establishment listed for the scheduling of a compliance evaluation this FCSS scheduling cycle. Because this is the second release of this scheduling cycle, the list of establishments included with the CSAL will include establishments identified by FCSS in either the first or second scheduling release. As in the past, depending on the workload of individual OFCCP offices, all establishments identified in the attachment to the CSAL may not be scheduled for an evaluation.
For a variety of reasons, it is possible that company establishments other than those identified in the CSAL have been selected for a compliance evaluation during this scheduling cycle. For example, company establishments that are not clearly associated with a parent organization through currently-available EEO-1 Reports, such as those that have been acquired through recent mergers, are not included on the CSAL. In addition, the CSAL does not identify whether an establishment of a company has been selected for evaluation because of a contract award notice, a directed review, as a result of conciliation agreement monitoring or an individual complaint, or as part of the CMCE or FAAP initiatives.
For contractors with multiple establishments, FCSS limits the number of new compliance evaluations identified to 25 new evaluations during a scheduling cycle. The 25-establishment limit does not apply to compliance evaluations scheduled as a result of the agency’s CMCE or FAAP initiatives, contract award notices, directed reviews, conciliation agreement monitoring, or credible reports of an alleged violation of a law or regulation, including complaints.
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STATISTICS TO SHOW OFCCP IS STILL OUT AND ABOUT FINDING DISCRIMINATION, DEFICIENCIES, AND FINANCIAL SETTLEMENTS
February 2008
In Fiscal Year (FY) 2007 OFCCP posted a record amount of financial remedies for job applicants and employees who had been discriminated against by employers. They also conducted 24% more compliance evaluations of AAPs than in the previous year. OFCCP remains focused on systemic discrimination and the results have proven the strategy to be extremely effective.
FY Financial Workers Compliance
Remedies Affected Evaluations
2007 $51,681,000 22,251 4,923
2006 $51,525,000 15,273 3,975
2005 $45,156,000 14,761 2,730
Details can be found on the OFCCP web site:
http://www.dol.gov/esa/ofccp/enforc07.pdf
(use back arrow to return to this site)
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Effective for new hires after DECEMBER 26, 2007:
Employment Eligibility Verification
Purpose of Form :
All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. Acceptable documents are listed on the back of the form, and detailed below under "Special Instructions."
Number of Pages : 3
Edition Date : 06/05/07
Where to File :
Do not file Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., ICE, Department of Labor).
Filing Fee : $0.00
Special Instructions :
You should have the latest version of the free Adobe Reader to download and use the 2007 version of Form I-9.
Please note the following changes to the Form I-9 process:
· Five documents have been removed from List A of the List of Acceptable Documents:
Certificate of U.S. Citizenship (Form N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)
· One document was added to List A of the List of Acceptable Documents:
Unexpired Employment Authorization Document (I-766)
· All Employment Authorization Documents with photographs have been consolidated as one item on List A:
I-688, I-688A, I-688B, I-766
· Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify.
· Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.
Note: The Spanish version of Form I-9, available below on this page, may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.
This page can be found at http://www.uscis.gov/i-9
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EMPLOYMENT TESTS AND SELECTION PROCEDURES EEOC FACT SHEET 12/3/2007
Employers often use tests and other selection procedures to screen applicants for hire and employees for promotion. There are many different types of tests and selection procedures, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks.
The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. However, use of these tools can violate the federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age (40 or older). Use of tests and other selection procedures can also violate the federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law.
On May 16, 2007, the EEOC held a public meeting on Employment Testing and Screening. Witnesses addressed legal issues related to the use of employment tests and other selection procedures.
Employer Best Practices for Testing and Selection
Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under UGESP.
If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
- Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
For further background on experiences and challenges encountered by employers, employees, and job seekers in testing, see the testimony from the Commission’s meeting on testing, located on the EEOC’s public web site at: http://www.eeoc.gov/abouteeoc/meetings/5-16-07/index.html
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August 31, 2007
Interim Guidance on the use of Race and Ethnic Categories in Affirmative Action Programs
Beginning in 2007, employers, including Federal contractors, will report data about the racial, ethnic, and gender composition of their workforces on a revised Standard Form 100, Employer Information Report (commonly referred to as the "EEO-1 Report"). The revised EEO-1 Report must be filed for the first time by September 30, 2007.
OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race and ethnic categories used on the previous EEO-1 Report: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. In light of the changes to the EEO-1 Report, OFCCP is drafting proposed amendments to the recordkeeping and affirmative action program (AAP) regulations at 41 CFR parts 60-1 and 60-2 designed to require the use of consistent race and ethnic categories in the Executive Order 11246, as amended (Executive Order) program.
Comments: OFCCP will publish a proposed regulatory change in the Federal Register “soon,” which means it will be several months before the final rule is published. It is not feasible for the government to expect contractors to have it/report it both ways, therefore, OFCCP will allow the new standards (required by EEOC) to be utilized and no citations (based upon the race and ethnic categories) will be issued if an audit is conducted, i.e., contractors are permitted to prepare AAPs using the racial and ethnic categories provided under the OFCCP regulations or the EEOC new categories.
To review this OFCCP guidance, go to their web site at:
http://www.dol.gov/esa/regs/compliance/ofccp/EEO1_Interim_Guidance.htm
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AUGUST 2007
FINAL RULING: EXPANDS VETERANS COVERAGE AND CHANGES MANDATORY JOB LISTING
The Office of Federal Contract Compliance Programs (OFCCP) published its final rule for Veterans' AAP requirements. Veterans' affirmative action will now be addressed by two separate sections of
41 Code of Federal Regulations (CFR). The current provisions of Part 60-250 will continue to apply to contracts made on or before December 1, 2003. However, the new section in 41 CFR, Part 60-300, will apply to contracts made after December 1, 2003. The new contract threshold of $100,000 is what contractors must meet before they are required to prepare a written Veterans' AAP.
For a copy of the OFCCP Questions and Answers page on the changes, go to:
http://www.dol.gov/esa/regs/compliance/ofccp/faqs/jvafaqs.htm#Q1
(you may have to cut and paste if the direct link doesn't work)
In a nutshell:
USERRA Compliance:
--USERRA applies to every employer, regardless of size or business sector. There is no minimum number of employees threshold as in many other employment laws.
--All employers must grant military leave, on request of the service member involved. Employers may ask for documentary proof that the leave is military, which often comes in a letter from the unit's commander. Leave can be for required training as well as for extended service.
--Leave is unpaid under the law, although some companies pay leave-takers their salary or the difference between their military and civilian pay, for purposes of both patriotism and retention. Employers must also continue to offer health benefits for up to 24 months. The first 31 days are at the employee's normal rate of contribution. The remainder is handled like COBRA, with the employee liable for 102 percent of the full premium.
--In normal times, the employee's job is protected for up to 5 years of cumulative military service. When leave-takers return, they must be placed in the position they would have had if they had stayed. Credit toward pensions and seniority must be awarded as if the individual never left. The new regulations are effective September 7, 2007.
Highlighted questions are found below :
What groups of veterans are covered under part 60-250?
Special disabled veteran --
(i) A veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability:
(A) Rated at 30 percent or more; or
(B) Rated at 10 or 20 percent in the case of a veteran who has been determined under 38 U.S.C. 3106 to have a serious employment handicap; or
(ii) A person who was discharged or released from active duty because of a service-connected disability.
Veteran of the Vietnam era -- A person who
(1) served on active duty for a period of more than 180 days, and was discharged or released therefrom with other than a dishonorable discharge, if any part of such active duty occurred:
(i) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases; or
(2) Was discharged or released from active duty for a service-connected disability if any part of such active duty was performed:
(i) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases.
Other protected veteran -- a person who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, under laws administered by the Department of Defense.
Recently separated veteran -- any veteran during the one-year period beginning on the date of such veteran's discharge or release from active duty.
What groups of veterans are covered under part 60-300?
Disabled Veteran -- (1) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or (2) A person who was discharged or released from active duty because of a service-connected disability.
Recently separated veteran -- any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.
Armed Forces service medal veteran -- any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.
Other protected veteran -- a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.
What are the new job listing requirements under the Jobs for Veterans Act?
The Jobs for Veterans Act (JVA) and the regulation implementing the JVA at 41 CFR 60-300.5 require that contractors list job openings with the appropriate employment service delivery system. Employment openings subject to the mandatory job listing requirement include all positions except (1) executive and top management positions, (2) positions that will be filled from within the contractor's organization, and (3) positions lasting three days or less. Listing with the appropriate employment service delivery system must be done concurrently with a contractor's use of any other recruitment source or effort.
Where can I find a link to the state workforce agency job banks?
A link to the state workforce agency job banks is available at http://careeronestop.org/ajbprsjbl/. This link will allow contractors to identify those state workforce agency job banks that accept electronically-transmitted job listings.
Is a contractor required to list temporary positions?
Employment openings subject to the mandatory job listing requirement include all positions except (1) executive and top management positions, (2) positions that will be filled from within the contractor's organization, and (3) positions lasting three days or less. All other employment openings, including those for full-time employment, temporary employment of more than three days' duration, and part-time employment, are subject to the mandatory listing requirement.
What are my affirmative action obligations as a Federal contractor covered by VEVRAA?
The Equal Employment Opportunity Clause in a Federal contract requires that you practice nondiscrimination and take affirmative action in employment with respect to covered veterans. Affirmative actions are the actions, policies, and procedures designed to achieve equal employment opportunity. The affirmative action obligation requires (1) thorough, systematic efforts to prevent discrimination from occurring or to detect it and eliminate it as promptly as possible; and (2) proactive recruitment and outreach measures. You also may be required to develop a written affirmative action program for each of your establishments if you have 50 or more employees and (1) a contract of $50,000 or more entered into before December 1, 2003 or (2) a contract of $100,000 or more entered into or modified on or after December 1, 2003.
I am a contractor covered under parts 60-250 and 60-300. Must I develop two VEVRAA affirmative action plans (AAPs)?
A contractor that must comply with both sets of VEVRAA regulations need not develop two AAPs. The JVA amendments did not affect the required contents of the written AAP under VEVRAA. Since the contents of the written AAP required under § 60-300.44 and § 60-250.44 are the same, contractors may develop a single AAP that satisfies the requirements of both regulations. The affirmative action efforts of a contractor covered by both sets of regulations must include all veterans protected by law.
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An Explanation of ADA Reasonable Accommodation
Best Practices in HR put out a checklist of the two of the most important (and often confusing) terms in the Americans with Disabilities Act (ADA), "reasonable accommodation," (what an employer is required to do to allow a person with disabilities to perform the essential functions of a job, and "undue hardship," the reason EEOC provides exemption from ADA compliance when making an accommodation that would seriously impair the business.
Here are the examples Best Practices in HR gave for what can be a reasonable accommodation:
- Making existing facilities accessible
- Job restructuring
- Reassignment to a vacant position
- Part-time or modified schedules
- Acquiring or modifying equipment
- Changing the physical layout of the work area
- Removing requirements to stand when a job is performed
- Changing tests, training materials, or policies
- Providing readers or interpreters
- Eliminating an essential job function
- Lowering production standards (after reasonable accommodations have been instituted)
- Having to provide personal-use items for daily activities (prosthetics, wheelchairs, hearing aids, etc.)
- Arrangements that conflict with the company's seniority system, regardless of whether it is a product of collective bargaining or simply of management decision
Here are examples of "undue hardships," to be considered when making accommodations, as typically viewed by the feds. (Remembering you should always explore all options that would be considered reasonable.)
- The nature and cost of the accommodation needed
- The overall financial resources of the facility making the accommodation
- The number of persons employed at the facility
- The effect on the facility's expenses and resources
- The type of operation, including the structure and function of the workforce, its geographical separateness, and the administrative or physical relationship of the facility making the accommodation
- The impact of the accommodation on the operation of the facility
These lists are not all-inclusive
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ALL POWERFUL OFCCP
From the US Department of Labor/OFCCP website:
Improvements at OFCCP Produce Record Financial Recoveries for Record Number of American Workers in FY 06
$51,525,235 Recovered for 15,273 Workers Subjected to Discrimination
The Employment Standards Administration’s Office of Federal Contract Compliance Programs
(OFCCP) enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and
the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. These laws
prohibit federal contractors and subcontractors from discriminating in employment based on
race, gender, color, religion, national origin, disability or covered veteran status.
In Fiscal Year 2006, OFCCP recovered a record $51,525,235 for a record 15,273 American
workers who had been subjected to unlawful employment discrimination. Of that record
recovery, 88% was collected in cases of systemic discrimination – those involving a significant
number of workers or applicants subjected to discrimination because of an unlawful employment
practice or policy. The $51.5 million reflects a 14% increase over recoveries in FY 2005 and a
78% increase over FY 2001.
Fiscal Year Remedies Compliance Evaluations
2006 $51,525,235 3,975
2005 $45,156,462 2,730
2004 $34,479,294 6,529
2003 $26,220,356 4,698
2002 $23,975,000 4,135
2001 $28,975,000 4,716
Change From
2005 to 2006 14.1% 3.5% 10.3% 45.6%
Change From
2001 to 2006 77.8% 68% 5.9% (15.7%)1
Initiatives at OFCCP Yield Dividends
OFCCP’s initiatives of the last several years are making it a more effective and efficient civil
rights enforcement agency. Compared with years past, OFCCP more quickly and accurately
screens contractor establishments for indicators of potential discrimination with its Active Case
Management (ACM) system. Under ACM, which was fully implemented in each of OFCCP’s
regions in FY 2005, the agency opens more reviews than it did in the past and the agency uses
automated statistical tools to rank and prioritize establishments for further review based on the
probability that discrimination would be uncovered during a full-scale review. OFCCP is using
1 Although OFCCP completed fewer reviews in Fiscal Year 2005 and 2006 than in previous years, its Active Case
Management process has effectively enabled it to better target systemic discrimination.
ACM to identify and resolve cases of systemic discrimination with greater frequency. OFCCP is
monitoring a larger portion of the federal contractor universe than it has in the past and it is
prioritizing its resources to addressing the worst offenders of the law. ACM is an effective
mechanism for targeting systemic discrimination: In FY 2005 and 2006, OFCCP closed an
average of 11.7% evaluations with a conciliation agreement, compared with 6.7% of evaluations
closed with a conciliation agreement in FY 2004.
Clearer Guidance and More Enforceable Standards
Since 2001, OFCCP has enacted policy initiatives and directives to provide clearer guidance for
employers and more enforceable standards for OFCCP.
Compensation Standards
In June 2006, OFCCP published in the Federal Register interpretive standards for evaluating
compensation practices, providing contractors with the first definitive guidance on the subject
ever. The standards will provide the agency a stronger basis for pursuing investigations of
possible systemic compensation discrimination because of their transparency and because of
their consistency with court rulings on pay discrimination law. OFCCP also conducted 31
Corporate Management Compliance Evaluations (CMCEs), also known as “Glass Ceiling”
audits, in FY 2006.
Internet Applicant Rule
OFCCP also recently published a rule clarifying provisions of the recordkeeping requirements
for federal contractors concerning who is an “applicant” in the context of the Internet and related
electronic data technologies.
Compliance Assistance Efforts
OFCCP also continued to build upon its comprehensive compliance assistance program,
conducting more than one thousand compliance assistance events in each of the last three years.
OFCCP’s recently enhanced monitoring of the federal contractor universe encourages selfmonitoring by contractors. Compliance assistance outreach helps employers prevent unlawful
discrimination in their workplaces by providing them with the information necessary to
effectively monitor their workplaces.
Strong Enforcement
A significant portion of the recoveries came from cases referred to the Office of the Solicitor
(SOL) for enforcement litigation. In FY 2006, OFCCP obtained over $15 million in financial
remedies for more than 3,340 workers in cases referred to SOL. OFCCP also now involves SOL
attorneys earlier in its review process and more often in conciliation meetings with contractors.
Financial Remedies Obtained Through SOL Enforcement:
FY 01: $810,000 FY 02: $130,000 FY 03: $11,756,573 FY 04: $11,756,573 FY 05: $6,389,582 FY 06: $15,104,124 Change from 2001 to 2006: N/A2
Referred Systemic Discrimination Cases
Discrimination Cases FY 01: 8 FY 02: 4 FY 03: 12 FY 04: 10 FY 05: 16 FY 06: 9 Change From 2001 to 2006: 12.5%
2 The methodology for tracking this data changed between FY 2003 and FY 2004. The pre-2004 figures do not capture the wages secured as a result of cases referred to litigation.
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OFCCP
COMPENSATION ANALYSIS REGULATIONS FINALIZED JUNE 16, 2006
By
Bruce Kuehnl, EEO LOGIC, LLC and Carol Dawson, EEO GUIDANCE,
Inc.
As
of June 16, 2006, specific compensation analysis is
a requirement for all federal affirmative
action
contractors. If you have 500 or more employees on your
payroll, you must perform a detailed regression analysis each
AAP year to
ensure there is no illegal discrimination. Regression
analysis is recommended for companies
with
less than 500 employees.
Regression Analysis is new to many companies. It is
a statistical analysis tool that requires large data
bases filled with information; not retained
or used for any other purpose. The Office of Federal
Contract Compliance Programs (OFCCP)
will
also be conducting its own regression analysis on your
program, if you are audited; however, they will need
your numbers to do so. If a company performs all of
the recommended analysis actions, and no apparent discriminatory
problems exist, OFCCP will accept the results and not
audit
further.
As a former OFCCP District/Area Directors, we can tell
you that OFCCP Compliance Officers have often had a
difficult time with data analysis. Most have not been
equipped with the education
or
experience to fully understand this statistical analysis. However,
OFCCP has hired several
trained
statisticians for each region and they should become
more involved with the compensation portion of audits.
This doesn't mean there are not flaws within these new
requirements. HR professionals will be required to maintain
data beyond name, grade, etc., as regression requires
more specific data on each employee. i.e., education,
previous work experience, previous training, performance
ratings, etc. Basically, you will be required to supply
any data used to determine how employees are paid.
We will continue to monitor developments relating to
these new regulations, and will be making further comment
on recommendations to our clients. For specific information,
go to the US Dept.
of
Labor/OFCCP web site at:
http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-5458.pdf
___________________________
THE CONTINUING SAGA: EEO-1 AND RACE BY EEOC/ OFCCP
EEO-4 Users have not been instructed to make any changes to their statistics, thus far. I have been in contact with EEOC’s primary EEO-4 expert and he advises to sit tight and continue what you are doing.
As you should know…the EEOC has issued final regulations about the EEO-1 changes. They apply to private sector employers with 100 or more employees, and employers with 50 or more workers who are federal
contractors, selling goods or services to the U.S. government.
Federal Register, Vol. 70, No. 227, Monday, November 28, 2005
The revised form will become effective with the 2007 EEO-1
reporting deadline. Contractors and other subject
employers must file the new format on September 30, 2007.
As always, you can expect that you will be sent the new form
with your company information pre-printed (if all goes well). There are no guidelines requiring contractors to re-survey their employees…at this time; however, that can change before the race changes go into effect in 2007.
One of the primary changes contractors should be prepared for is the
splitting of Officials & Managers into two categories...
Executive/Senior Level Officials & Managers, and First/Mid
Level Officials & Managers. Contractors will have to report their
workforce in each of these two new categories beginning at the same time the race changes are executed.
Regarding self identification, some employees/applicants will refuse to identify their race. In the past, contractors were expected then to make a visual observation and judgment. This will be much more difficult, given the new categories, which include two of more races. The November 28, 2005
The new EEO-1 splits the Asian race category and now there are both "Asian" and "Native Hawaiian and Other Pacific Islanders." There is also the addition of a new "Two or More Races" category.
EEOC states contractors should first ask if someone is Hispanic.
If the answer is YES, then there is no further choice of race. They do not require employers to track both Hispanic ethnicity and some other Race as well. "The Commission reaffirms its decision not to require employers to
report the race of employees who identify as Hispanic or Latino."
The question of race only occurs when the employee says NO to
the question of Hispanic ethnicity. This has become known as the
"two question format." However, let’s imagine that an employee could be part African American and part Hispanic/Latino. Hmmmmm…what will you do? You will classify that employee as Hispanic, unless he/she self identifies otherwise.
OFCCP must align their regulations with those of the EEOC, or the statistical gathering puzzle will be extremely complex for anyone who holds a federal contract. __________________________________________________________
EEOC GUIDANCE RE: NEW EEO-1 CHANGES FOR 2007: Q & A
Questions and Answers: Revisions to the EEO-1 Report
Background and Basic Requirements
-
Q: What is the EEO-1 Report?
A: The EEO-1 Report – formally known as the "Employer Information Report" – is a government form requiring many employers to provide a count of their employees by job category and then by ethnicity, race and gender. The EEO-1 report is submitted to both the EEOC and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP).
-
Q: Who must file the EEO-1 report?
A: The EEO-1 report must be filed by:
- Employers with federal government contracts of $50,000 or more and 50 or more employees; and
- Employers who do not have a federal government contract but have 100 or more employees
-
Q: When must the EEO-1 report be filed?
A: The EEO-1 report must be filed annually with the EEOC by September 30. It must use employment numbers from any pay period in July through September of that year.
-
Q: When must employers begin using the revised EEO-1 report?
A: The revised EEO-1 report must be used beginning with the survey due by September 30, 2007. For the surveys due by September 2006, employers should continue to use the EEO-1 report format from previous years. This report is still available on the EEOC’s website at https://apps.eeoc.gov/eeo1/eeo1.jsp
-
Q: How do employers file EEO-1 reports?
A: We strongly recommend that EEO-1 reports be submitted through the EEO-1 Online Filing System or as an electronically transmitted data file. Paper EEO-1 forms will be generated on request only, and only in extreme cases where Internet access is not available to the employer. Instructions on how to file are available on the EEOC’s website at http://www.eeoc.gov/eeo1survey/howtofile.html.
-
Q: Is EEO-1 data confidential?
A: Yes. The Commission is required by law to keep individual employer EEO‑1 reports strictly confidential. 42 U.S.C. 2000e-8(e).
-
Q: Where can employers find more information about the EEO-1?
A: General information about the EEO-1 can be found at the EEOC’s website at http://www.eeoc.gov/eeo1survey/index.html.
Description of the Changes to the New EEO-1 Report
-
Q: What changes are being made to the ethnic and racial categories on the EEO-1 report?
A: A number of changes are being made to the race and ethnic categories. The revised EEO-1 report:
- adds a new category titled "Two or more races"
- divides "Asian or Pacific Islander" into two separate categories: "Asian" and "Native Hawaiian or other Pacific Islander"
- renames "Black" as "Black or African American"
- renames "Hispanic" as "Hispanic or Latino"
- strongly endorses self-identification of race and ethnic categories, as opposed to visual identification by employers
-
Q: What changes are being made to the job categories on the EEO-1 report?
A: First, the current category of "Officials and Managers" will be divided into two levels based on responsibility and influence within the organization.
These two levels will be:
- Executive/Senior Level Officials and Managers (plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO)
- First/Mid-Level Officials and Managers (direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations)
The revised EEO-1 also will move business and financial occupations from the Officials and Managers category to the Professionals category (to improve data for analyzing trends in mobility of minorities and women within Officials and Managers).
-
Q: What process did the EEOC follow in adopting these revisions to the EEO-1 report?
A: On June 11, 2003, the EEOC published in the Federal Register a notice of proposed revisions to the EEO-1 and asked for comments in 60 days.
- Thirty-two interested parties, including employers, civil rights organizations, human resources and information technology professionals, and other individuals, submitted written comments.
- The EEOC held a public hearing at which nine witnesses testified. The record was completed by several written comments submitted subsequent to the hearing.
- The EEOC reviewed the comments and made revisions to the EEO-1 report, in coordination with OFCCP.
- On November 16, 2005, the Commission voted to approve the revisions to the EEO-1 Report. A final Notice of Submission for Office of Management Budget (OMB) review was published in the Federal Register on November 28, 2005. This notice is available on the Commission's website at http://www.eeoc.gov/eeo1/index.html.
- After a 30-day public comment period during which OMB considered all comments submitted, the revised EEO-1 was given final approval.
- The final revised EEO-1 report was posted on the Commission's website on January 27, 2006 at http://www.eeoc.gov/eeo1/index.html.
-
Q: Where is more information about the revisions to the EEO-1?
A: More information about the revised EEO-1 - including the final Notice of Submission for OMB Review which explains the revisions in detail and the Instruction Booklet - is available on the Commission's website at http://www.eeoc.gov/eeo1/index.html . A copy of the final notice can also be found in the November 28, 2005 issue of the Federal Register (70 FR 71294) at http://edocket.access.gpo.gov/2005/05-23359.htm .
Uses of EEO-1 Data
-
Q: What do the EEOC and OFCCP do with the EEO-1 survey data?
A: Both the EEOC and OFCCP have used the EEO-1 since 1966.
The EEOC uses the data to support civil rights enforcement. The EEOC also uses the data to analyze employment patterns, such as the representation of female and minority workers within companies, industries, or regions.
OFCCP uses EEO-1 data to determine which employer facilities to select for compliance evaluations. OFCCP’s system uses statistical assessment of EEO-1 data to select facilities where the likelihood of systematic discrimination is the greatest.
Next Steps
-
Q: What happens now that OMB has approved the revised EEO-1 report?
A: The final EEO-1 report has been posted on the Commission's website, with the valid OMB number, at http://www.eeoc.gov/eeo1/index.html, along with the Instruction Booklet. Employers must begin to use the newly approved EEO-1 report beginning with the survey due September 30, 2007. (For the survey due September 30, 2006, employers should continue to use the EEO-1 report from previous years, still available on the Commission's website at https://apps.eeoc.gov/eeo1/eeo1.jsp.)
EEOC
SHIFTS TARGETED DISCRIMINATION INVESTIGATION
TO SYSTEMIC DISCRIMINATION
The EEOC has approved a program that will refocus the
agency's
law enforcement efforts on systemic cases of discrimination
rather
than individual cases. The OFCCP has been in this mode
for several
years and the question remains: Where do our U.S. workers
find relief
from individual one-on-one discrimiation (especially
those who cannot
affort an attorney)?
Cari Dominguez,
Chair of the Commission, commended Commissioner
Leslie E. Silverman who led an internal agency task
force that
prepared the recommendations considered and approved
by the entire
Commission at its meeting on April 4, 2006.
Among actions
taken by the Commission are:
* Systemic
investigations and litigation will be conducted in the
field, and the systemic investigation and litigation
units in
headquarters will be eliminated.
* Each district in the field must develop Systemic Plans
to ensure
that the Commission is identifying and investigating
systemic
discrimination in a coordinated, strategic, effective
agency-wide
manner.
* The Office of General Counsel should facilitate the
staffing
of systemic cases using a national law firm model, whereby
cases
are staffed with employees who have the expertise needed
in each
particular case.
Sounds like
some serious field training for the EEOC will be coming
down the pike very soon. For additional information,
go to the EEOC web site:
www.eeoc.gov/press/4-4-06.html
EEOC
ISSUES NEW DISCRIMINATION GUIDELINES
April 2006
The EEOC issued a new Compliance Manual section updating
guidance
on how Title VII of the Civil Rights Act of 1964 prohibits
discrimination in employment on the basis of race and
color. The
EEOC also issued a question-and-answer fact sheet on
the same topics. The effort is to help employers better
respond to
instances of discrimination and to help prevent discrimination
in the first place. The changes appear to be more of
a clarification than a change.
Included in
the new guidance are the following subjects: Recruiting,
Hiring, and Advancement ~
Harassment/Hostile Work Environment ~ Compensation and
Other Employment Terms, Conditions and
Privileges ~ Segregation and Classification of Employees
~ Retaliation
For more information,
go to the EEOC web site: http://www.eeoc.gov/types/race.html
ARE
YOU PROTECTED FROM TITLE VII EMPLOYMENT DISCRIMINATION
CLAIMS IF YOU HAVE LESS THAN 15 EMPLOYEES?
February 2006
The correct
response should now be "not necessarily."
The U.S. Supreme Court recently ruled that federal courts
may have jurisdiction to handle Title VII law suits
even though the employer had fewer than the 15 required
by the Civil Rights Act of 1964 for coverage. Feel free
to read the opinion written by Supreme Court Justice
Ginsberg at: http://www.supremecourtus.gov/opinions/05pdf/04-944.pdf
The decision
is just a tad bit complicated and difficult to follow
(unless you are the legal type). The decision was primarily
based upon determination whether the disputed matter
concerns "jurisdiction" or "the merits"
of the case (admittedly often a close-call question).
The background to all of this is a case involved Jenifer
Arbaugh, who worked for the Moonlight Cafe in New Orleans,
LA for less than a year (May 2000 - February 2001),
as a bartender. She contends that she was sexually harassed
by the company owner which led to his leaving the job.
The claim went to trial and a jury voiced their decision
in her favor, awarding a total of $40K. After the trial,
the company brought up the court's lack of jurisdiction,
claiming they did not have 15 employees at the time
of Arbaugh's employment. The case hit the Supreme Court
and ultimately Justice Ginsberg wrote the majority,
"Title VII's numerical threshold does not circumscribe
federal court subject-matter
jurisdiction. Instead, the employee-numerosity requirement
relates to the substantive adequacy of Arbaugh's Title
VII claim, and therefore could not be raised defensively
late in the lawsuit, i.e., after [the employer] had
failed to assert the objection prior to the close of
trial on the merits." The opinion also says, "...the
15-employee threshold appears in a separate provision
[of the law] that 'does not speak in jurisdictional
terms or refer in any way to the jurisdiction of the
district courts.'"
Bottom Line:
It is unwise to let the jurisdiction question remain
dormant until after a ruling. However, more important
is the fact that it is simply unwise to sexually harass
your employees...no matter how many employees you legally
have employed.
HOW
MANY AUDITS CAN YOU HANDLE AT ONE TIME?
Office of
Federal Contract Compliance Programs (OFCCP)
has previously held that contractors would be exempt
from more than
25 audits in any given year (which seems reasonable,
if not somewhat high).
However, OFCCP has now modified that position
and state that contractors will be scheduled for no
more than 25 "new"
evaluations in any given year, regardless of the number
of open
evaluations that exist at the start of the year. So,
no longer will
25 be an absolute cap on activities.
CHANGES IN VETERAN
AAP REGULATIONS IN PROPOSAL STAGE
Go to OFCCP's
site at:
http://www.dol.gov/esa/regs/fedreg/proposed/2006000440.htm
and you will find the proposal for new regulations for
veteran AAPs.
Some changes are:
o Contractors
may be subject to TWO sets of
regulations on veterans affirmative action. For all
contracts
beginning before December 1, 2003, contractors are subject
to
the regulations at 41 CFR 60-250. For all contracts
beginning
after December 1, 2003, contractors will be subject
to new
regulations at 41 CFR 60-300.
o The old monetary threshold requiring a written AAP
for veterans
was $25,000. The new regulations will raise that limit
to $100,000
for contracts entered into on or after December 1, 2003.
March 21, 2006, is the deadline for comments on the
new regulatory
proposals.
FIRST
CHANGE IN EEO SURVEY IN 40 YEARS!
January 2006
– The U.S. Equal Employment Opportunity Commission (EEOC)
today announced the implementation of final revisions
to the Employer Information Report, also known as the
EEO-1 Report, as recently voted on and approved by the
Commission. The implementation of the final revisions
marks the first major change to the employer survey
in four decades.
Many employers
are required to submit annually the EEO-1 Report, which
provides the federal government with workforce profiles
by ethnicity, race and gender, divided into job categories.
The new format will be required for the first time for
the 2007 survey, which is due by September 30, 2007.
Employers are expected to use the current format for
their 2006 EEO-1 submissions.
“The new EEO-1
Report recognizes the shifting demographics of today’s
workplace,” said Commission Chair Cari M. Dominguez,
noting that this was the first major revision of the
EEO-1 report since 1966. “The revised report will also
better enable the Commission to accurately monitor the
advancement of women and people of color into the upper
ranks of management.”
The EEOC’s revisions
incorporate some of the recommendations received by
the Commission during the past two and one-half years.
In June 2003, the Commission published a notice of proposed
revisions to the EEO-1 Report in the Federal Register
, received and considered public comments, and then
held a public hearing in October 2003. As required under
the Paperwork Reduction Act (70 FR 71294), a second
Federal Register notice was published on November 28,
2005, for a 30-day comment period. The new report format,
Instructions, and explanation can be found on the EEOC’s
web site at www.eeoc.gov/eeo1/index.html
.
During the
revision process, the Commission consulted with a broad
range of stakeholders and held extensive discussions
with other federal agencies – including the U.S. Office
of Management and Budget (OMB) and the U.S. Department
of Labor, Office of Federal Contract Compliance Programs
(OFCCP). The new EEO-1 Report’s race and ethnic categories
include:
- Adding a new category titled “Two or more races,
not Hispanic or Latino”;
- Deleting the “Asian and Pacific Islanders” category;
- Adding a new category titled “Asians, not Hispanic
or Latino”;
- Adding a new category titled “Native Hawaiian or
Other Pacific Islander, not Hispanic or Latino”;
- Extending the EEO-1 data collection by race and
ethnicity to the State of Hawaii; and
- Strongly endorsing employee self-identification
of race and ethnicity, as opposed to visual identification
by employers.
The new EEO-1
Report’s job categories include:
- Dividing “Officials and Managers” into two levels
based on responsibility and influence within the organization:
“Executive/Senior Level Officials and Managers” and
“First/Mid-Level Official and Managers”; and
- Moving non-managerial business and financial occupations
from the “Officials and Managers” category to the
“Professionals” category.
EEO-1 Reports
are submitted annually to the Joint Reporting Committee
for the use of the EEOC and OFCCP. The report must be
filed annually by employers with 100 or more employees,
or employers with federal government contracts of $50,000
or more and 50 or more employees. It also includes data
on the size of employer establishments, the existence
of other establishments within the company, the locations
of the company’s establishments, the industry of each
company establishment, and the metropolitan area of
the establishment. Further information about the EEO-1
Report, including questions and answers on the final
proposed revisions, is available on the agency’s web
site at www.eeoc.gov/eeo1/index.html
.
The EEOC is
the federal government agency responsible for enforcing
the nation's anti-discrimination laws in the workplace
based on race, color, sex, religion, national origin,
age and disability. Additional information about the
agency is available on its web site at www.eeoc.gov
.
CHIEF
OFFERS ADVICE ON PRESENTING EEOC CASES
9/23/2005
(See our comments below article)
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