The Annual Southwest and Rocky Mountain (SWARM) Region Industry Liaison Group (ILG)Conference was held April 10 – 13, 2012 in San Antonio, TX. This annual conference brings together members of the federal contracting community to discuss affirmative action and equal employee opportunity (EEO) issues and share information. This year’s conference coincided with a number of proposed changes regarding VEVRAA, Section 503, and the OFCCP Scheduling Letter. DCI Consulting Group attended the conference, and this post summarizes some of the sessions that we think are particularly relevant to the federal contractor community.
Keynote Speech
Patricia Shiu/Director of the Office of Federal Contract Compliance Programs
Director Patricia Shiu addressed contractors during a lunch session, opening with a warm statement about the partnership she hopes to create with the contractor community. Although Director Shiu expressed disappointment and irritation with those who speculate what she is thinking and the OFCCP’s next steps, she was pointed in saying she is committed to transparency. Specifically, her message conveyed that the OFCCP shares their intentions through the rule-making process and that there are no underlying, hidden agendas.
In what seemed to be a case of putting ones words into action, Director Shiu closed the session by taking audience questions. Contractors asked questions related to such topics as the timeframe for the proposed regulation changes and how these changes will be implemented. One particular question that seemed to resonate with the larger audience concerned when implementation of the proposed scheduling letter could be anticipated and how long contractors would have to respond with changes to their internal auditing processes. In response, Director Shiu referred to her assistant, who discussed the rule-making process and the OFCCP’s plans for implementing proposed regulations. At this time, both the Section 503 and the VEVRAA regulations are still at OFCCP being finalized; the only outstanding regulation they currently have at the Office of Management and Budget (beside the proposed scheduling letter) is the proposed rescission of the Compensation Guidelines and Standards. Although there was no specific timeframe given for a grace period upon publishing of the new scheduling letter, it was made clear that contractors should be preparing for the proposed changes.
General Session
Melissa Speer/SWARM OFCCP Regional Director, Robert Beal/Office of the Solicitor, Counsel for Civil Rights
Ms. Speer and Mr. Beal generally addressed OFCCP enforcement and legal issues, including the recent FedEx Ground and Beef Packing Company cases. Ms Speer noted the large scale non-financial remedies included as part of the Fed Ex Ground Settlement. This included hiring an external I/O Psychologistto evaluate current hiring processes, develop objective measures for the hiring process and create and implement EEO and HR training for the organization.
The session also focused on compensation issues. For example, in response to a question at the previous session with David Lopez, General Counsel of EEOC, Mr. Beal discussed an EEOC pilot program driven by President Obama that has allowed EEOC to conduct proactive audits of contractor and private organization compliance with the Equal Pay Act.
Ms. Speer stated that OFCCP compensation analysis is conducted through a multi-faceted approach, addressing all forms of pay discrimination. Specifically, a variety of statistical and non-statistical tools are used on a case-by-case basis. The pending proposed rescission of the 2006 Compensation Guidelines was brought up, but no mention was made of guidelines or standards to replace the rescinded document. Ms. Speer also discussed the proposed a new pay data collection tool, which received about 7,800 public comments in response. Finally, Ms. Speer provided recommendations for contractors in the case that they received a Notice of Violation:
General Session: OFCCP District Directors
Pat Byrd/Houston
Nicole Huggins/Denver
Katherine Haight/San Antonio
Rachel Woods/ New Orleans
Four District Directors provided several different methodologies surrounding their views as three “unusual” paths to findings of discrimination. While these methodologies are termed as “unusual”, it is a best practice suggestion for all contractors to understand the fundamentals underlying these paths and liability.
Maintaining Records
Contractors are required to maintain records for two years (organizations with fewer than 150 employees is one year) from the date the record was created or an employment decision is made, whichever is later. If a contractor fails to maintain records or does not have adequate records, OFCCP can deem the contractor’s lack of record keeping as the result of an unfavorable outcome, such as a significant adverse impact result. In this scenario, OFCCP has the option to utilize what is called an adverse inference theory. They would gather workforce data (e.g., hires, representation) and compare that to current availability. Since actual pools of applicants are not available, this analysis could be used to support an inference of discrimination.
Conducting Adverse Impact Analyses
Adverse impact analyses should be conducted separately by subgroups. OFCCP has had several Conciliation Agreements where adverse impact analyses were conducted by sub-group rather than the traditional “Minority” group versus “White” comparison. This means that contractors should be analyzing their adverse impact by comparing each racial subgroup to the highest selected group (e.g. Hispanic v. Black, etc). Caution should also be advised that OFCCP has taken the approach to analyze combinations of sub-groups that favor an adverse impact claim (e.g. Hispanic v. Non-Hispanic, Blacks v. Non-Blacks, etc). This is a high liability area because these non-traditional analyses are often not conducted proactively.
Implementing Self-Monitoring as Part of a Conciliation Agreement
Contractors should be reminded that they must comply with the conditions agreed upon in their Conciliation Agreement. Specifically, contractors cannot retaliate against anyone that was involved in the matter that lead to the conciliation. Additionally, the terms of the Conciliation Agreement allow OFCCP to review ongoing compliance by reviewing written reports, inspecting premises, interviewing witnesses, and examining documents. Again, violating a Conciliation Agreement is a high liability area since failing to comply with the terms and agreements (or having an adverse condition of the contract) could lead OFCCP to request more documentation than what may have originally been required and/or agreed upon. Therefore, it is best practice for contractors to understand the terms and agreements of the Conciliation Agreements before they sign it. Additionally, contractors should have dedicated staff self-monitor their compliance efforts going forward with the ability to defend the requirements found in the Conciliation Agreement.
In closing, the District Directors provided the following compliance advice to contractors.
1. Maintain good records
2. Understand company processes (do managers understand and follow?)
3. Conduct appropriate analyses
4. Engage in self-monitoring
5. Address issues promptly
6. Avoid the “it’s not my job” excuse
7. Seek compliance assistant
Proper High Stakes Test Use: How to Avoid a Federal Test Discrimination Claim
Dr. Richard Fisher/OFCCP National Office
Any assessment of an applicant’s knowledge, skills, and/or abilities utilized for personnel decisions may be deemed a “test” and must be valid if found to have adverse impact. Dr. Richard Fisher, OFCCP’s Director of Testing, provided the audience with 5 best practices to help alleviate a test discrimination claim. These included:
1. A valid test is a legal test
2. Routinely analyze each test for adverse impact (2.0 more standard deviations)
3. Work to lessen adverse impact on any test when it’s found
4. Consider the estimated “shelf-life” when reviewing the validation process
5. If someone tells you that a particular test is valid, ask questions:
Dr. Fisher ended the session by opening the floor up for contractor questions.
Behind the Scenes: What Does OFCCP Do With Your Data?
Shafeeqa Giarratani/Fulbright & Jaworski L.L.P., Lisa Kaiser/Kairos Services
Based on the presenters’ experience on both sides of an OFCCP audit, audience members were provided realistic scenarios of issues that commonly arise from audits. The presenters acted out scenarios and then provided recommendations on how to respond to the OFCCP in such cases. Some of the scenarios and recommended responses included:
Issue #1
Response
Issue #2
Response
Response
Issue #4
Response
After presenting these and other scenarios, the presenters responded to the question “what does the OFCCP do with data once they receive it?” They provided information on the following OFCCP actions:
As a final note, the presenters stated that contractors can negotiate after receiving a Notice of Violation from the OFCCP in regard to liability (shortfall/pay disparity) and damages (correct pay, period of unemployment, mitigation period). Contractors cannot, however, negotiate press releases.
General Session: Lunch Presentation
David Lopez/General Counsel of EEOC
David Lopez,General Counsel of EEOC, provided the details for EEOC’s strategic focus from 2012 to 2016. This included developing a new enforcement plan, planning significant partnerships with community businesses, ensuring effectiveness of systems through technology, and increasing systemic discrimination enforcement. The General Counsel Office, which currently has a success rate of 90%, has re-delegated the authority to approve cases for litigation from one location, to 15 locations. They have also created the National Law Enforcement and Trial Resources Project which provides resources and mentoring for all lawyers on staff to ensure only the cases that are able to be tried and won are those that move forward to litigation.
The agency is seeing an upswing of systemic discrimination claims, which were at an all-time high in 2011. Another appearing trend has been cases involving vulnerable populations, such as human trafficking, intellectually disabled employees, and retaliation. Additionally, with the National Equal Pay Task Force mission at the forefront for all agencies, EEOC has been active in litigating cases surrounding pregnancy and caregiver discrimination. They successfully filed 20 cases last year, with Mr. Lopez commenting that these types of discrimination cases are the most overt forms of blatant discrimination. Mr. Lopez provided his final thoughts for the areas where the Office of General Counsel is currently underachieving, including disparate impact cases, Equal Pay Act wage discrimination cases, and age discrimination cases.
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5 Things You Need to Know About Social Media Recruiting
Nancy Holland/Direct Employers
As the Vice President of Marketing at DirectEmployers, Ms. Holland had a variety of strategies for how organizations should and should not usesocial media in their recruiting efforts. She reported that 89% of organizations use social media for recruiting and 18% use it to screen job candidates. She provided additional figures related to the scope of social media (e.g., more than two new members per second are joining the LinkedIn network), recommendations to applicants (e.g., make connections through social media and leverage them so that your resume lands in front of a hiring manager), and her “5 Things You Need to Know.”
(1) Monitor and Listen
(2) Policy and Education
(3) Opportunities for Outreach
(4) Legal Risks
(5) Privacy/Protection
Proposed VEVRAA Changes: What We Should Expect and What We Can Do to Prepare
Tony Magaro/Southwest Research Institute, Rachel Gudaitis/Southwest Research Institute
This session served as a review of the proposed changes to the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). The purpose of the proposed changes is to strengthen the Affirmative Action Provisions for VEVRAA, increase contractors’ data collection, and establish hiring benchmarks. The need for these proposed changes is based on the veteran unemployment rate and the social imperative to take care of our veterans. Contractor requirements after the proposed changes include:
In mind of these greatly increased contractor requirements, the presenters recommended the following preparatory steps:
Look at linkage agreements
2010 Census Update: The New Equal Employment Opportunity (EEO) Special Tabulation and American FactFinder
Ana Montalvo/National Office of the Census
Contrary to what many audience members were hoping, there will not be an early release of the 2010 census, so the scheduled release for December 2012 still stands. An integral piece to an Affirmative Action Plan, contractors use the census information to calculate availability, determine underutilization, and set minority and/or female goal for outreach/recruitment efforts. Four agencies (DOJ, OFCCP, OPM, and EEOC) sponsor the census tabulation every 10 years, which involves the collection and review of the data needed for contractor’s Affirmative Action Plans.
The American Community Survey (ACS) has now been fully implemented as the primary data collection tool and has eliminated what many people refer to as the “long form” of the decennial census. Interestingly, the ACS collects data over a five-year period and then uses the data collected for 10 years going forward. For example, the ACS collected data from January 2005 through December 2009 with most contractors assuming they should be using that data from January 2010 through December 2020. However, the lag in compiling the results will put the 2005-2009 data collection into use in 2013. When asked why not use the ACS that collects data every 5 years for 5 years going forward instead of the current 10 year use timeframe, the response noted that if the current use timeframe was shortened the four agencies would need to pay for the data collection every 5 years versus the current 10 years. The National Office of the Census does plan to release the occupational listings, occupational crosswalks, and county set listings within the next couple of months for users to familiarize themselves with the options before the 2010 census is released. They also plan to provide training in January and February, by request, after releasing the 2010 census data.
Pre-Conference Session on Hospital and University ContractorsAida Collins/Director of Regional Operations, SWARM Region, OFCCP
According to Mrs. Collins, OFCCP’s primary function is to level the playing field by protecting workers and promoting diversity enforcement. Currently, OFCCP has a team of 745 employees (200 new compliance officers) that conduct, on average, 4,000 compliance reviews each year. However, data showed that less than 2% of OFCCP’s compliance reviews each year are focused on Hospitals and less than 1% of reviews are focused on Universities:
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Hospital Reviews
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University contractors were particularly interested in why audits take so long. Aida provided insight that these types of audits “are very complicated”. She went on to mention that the complexity of University audits is especially true on the staff side because those positions have “more lax rules for staffing.”
The most important take away from the session was a “top violation” list that Director Collins compiled and shared to illustrate what common violations OFCCP has seen in these audits. .
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Hospital Violations
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A series of proactive questions were also provided, and were intended to help contractors avoid the above problems: :
Recordkeeping
AAP Inadequate / Incorrect / Missing
Internet Applicant Rule
Placement
Closing out the session, Anita provided some advice for contractors when monitoring/evaluating underutilization and/or discrimination. More specifically, she suggested that many contractors do identify underutilization and/or discrimination, but then fail to take appropriate actions to correct. She mentioned the following tips:
Evaluate/Monitor for Discrimination and Underutilization
Affirmative Action 101 – Understanding What It Takes to Develop an OFCCP Compliant Plan
Nicole Butts/Berkshire Associates Inc.
This session was a refresher course for contractors on the basics of what an Affirmative Action Plan (AAP) is and what content it must contain. Because the audience appeared well-seasoned and knowledgeable on the topic, a conversational environment was created in which audience members asked more nuanced questions about the technical creation of AAPs. Most of the audience questions focused on technical details such as availability calculations based on 2000 U.S. Census data. For example, a discussion ensued regarding the inflated Census figures for jobs requiring security clearance. Although these jobs require measurable skills tapped by the Census job codes, security clearance is not taken into account.
The content reviewed by Ms. Butts included:
Affirmative Action Regulations
Affirmative Action Plan Reports
Additionally, Ms. Butts stressed the need for Affirmative Action Plans as living, breathing documents. Her message was that personnel data must not only be analyzed, but a plan must be then created and, most importantly, implemented and continually updated.
Diversity & the Generational Shifts in the Law
Elizabeth Campbell/Andrews Kurth LLP
Ms. Campbell used the Lilly Ledbetter case as a case study for generational effects in the workplace in her session on diversity and generational shifts in the law and in the changing demographic makeup of the U.S. The four generations found in today’s workforce include:
Given the differing values and outlooks found among the generations, tensions are likely to arise in the workplace. Further, based on Dr. Stephen L. Klineberg’s research on demographics in the U.S. by age group, the intersection of ethnicity and age can be a source of tension. Ms. Campbell’s advice in proactively addressing such tensions before they become issues brought to litigation consists of creating a Diversity and Inclusion strategy comprised of:
by Marcelle Clavette, Jana Moberg, and Eric Dunleavy, Ph.D., DCI Consulting Group