OFCCP Director Shiu Conducts Q&A Session

The Q&A occurred on July 12, 2001 and during the session, Director Patricia A. Shiu revealed several important pending developments. Among her introductory remarks, she announced that the OFCCP is “engaged in several efforts to strengthen and update our regulations, bringing them in line with current law and adjusting to the realities of a modern labor force.” She also said OFCCP agenda is consistent with the DOL’s 2011 Semi Annual Regulatory agenda, which reflect DOL Secretary Hilda Solis’ vision of “Good Jobs for Everyone in workplaces that are safe, fair, equitable and free of discrimination.” Shiu emphasized that there are five entries in the DOL’s new regulatory agenda “to improve employment opportunities for veterans, for people with disabilities and for women and minorities in the construction trades. Shiu also noted that the OFCCP is moving forward with a data tool to improve its ability to combat pay discrimination, and it will be seeking public comment on proposed revisions to guidelines on sex discrimination.

The following are selected sample excerpts from Director Shiu’s responses to specific questions.

• • The final Section 503 regulations are still under review, and the proposed regulations will be published for public comment in the Federal Register sometime in the next month. Once review is complete, an NPRM for Section 503 will be published sometime in the next month.

• • It takes an average 40 works hours to complete a desk audit, depending on the size of the contractor’s workforce and issues identified during the audit.

• • The OFCCP is reviewing minority and female construction goals and is considering updating affirmative action requirements.

• • ANPRM (a compensation data collect tool) is in the final stages of review and should be published within the next few weeks.

• • The OFCCP is currently recruiting for a Regional Director in the Midwest and Deputy Regional Directors in the Northeast, mid-Atlantic, Midwest and Dallas regions.

• • In response to a question specific to community colleges, Director. Shiu responded that any non-construction contractor with a federal contract of $10,000 or more is covered by the OFCCP regulations.

• • There are a variety of ways to document good faith compliance, including copies of job postings, correspondence, and documentation of community outreach with workforce agencies or training and educational organizations.

• • Once regulations are finalized, contractors will have 120 days from the time of becoming a covered contractors to revise AAPs in relation to Section 503

• • Contractors should continue to use 2000 census data until 2010 data is available.

• • Contractors with fewer than 50 employees at a given establishment may cover their employees in an AAP covering just that establishment, in an AAP that covers personnel functions, or in an AAP of the managing official to whom they report.

• • The OFCCP has published guidance on the use of race and ethnic categories.

• • The OFCCP does not require any particular methodology for analyzing pay practices.

• • The OFCCP is not actively auditing establishments with fewer than 50 employees, but will investigate complaints against contractors of any size.

• • The updated OFCCP Compliance manual will be published sometime this fall.

• • If there are no technical violations and no findings of discrimination, an audit will generally be completed in 90 days.

• • There are several major differences between Active Case Enforcement (ACE) and Active Case Management (ACM). Under ACE, OFCCP uses all of the compliance evaluation investigative methodologies specified in the regulations (i.e., compliance review, offsite review of records, compliance check and focused review), whereas under ACM, only the compliance review method id used. Under ACM, a full desk audit was only conducted where there were indicators of discrimination or in every 50th review. ACE procedures require a full desk audit in every compliance evaluation. Additionally, ACM procedures focused on identifying cases where there were 10 or more affected class members, whereas ACE does not have a minimum affected class member threshold.

• • The OFCCP applies Title VII standards in compensation cases as it did in the AstraZeneca case.

• • The OFCCP has increased communications with the EEOC and DOJ to develop a unified civil rights agenda in light of President Obama’s vision for these agencies.

• • There are non-statistical tools consistent with Title VII principles including anecdotal evidence, evidence of individual instance of discrimination, and any other evidence relevant to the question of whether there is unlawful discrimination.

• • The OFCCP uses several databases to determine whether an employer is a federal contractor, such as the Central Contractor Registration (CCR), Federal Procurement Data System-New Generation (FPDS-NG), EEO-1 Surveys, and Dun & Bradstreet.

• 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.

Please note that these are excerpts I found most interesting. Also, among all the issues discussed, I think the most noteworthy event to look forward to are changes in sex discrimination guidelines, which have not been made in several decades.

By Art Gutman Ph.D., Professor, Florida Institute of Technology