OFCCP Rules of Engagement

Transcription

1 OFCCP Rules of Engagement What FY 2015 OFCCP Stats Tell Us We Should Know December 16, 2015 Presenters Sandra Hueneman, Manchester Consultants Teresa Turner, Synchronized Resources, Inc. The contents are intended for general information purposes only and should not be construed as legal advice or a legal opinion on any specific facts or circumstances.

2 Presenters Sandra Hueneman, Sr. CAAP President Manchester Consultants Teresa Turner, MBA President Synchronized Resources, Inc. 2

3 Introduction OFCCP Survival Rules of Engagement with OFCCP What OFCCP Stats Tell Us Today, given Office of Federal Contract Compliance Programs (OFCCP) aggressive regulatory agenda, active case enforcement protocol, more than ever, federal contractors and subcontractors do need to be prepared for engagement with OFCCP, whether it is an OFCCP compliance evaluation, complaint investigation, or the ability to continue to do business with the Federal government. 3

4 Agenda EEO and Affirmative Action - Rules of Engagement OFCCP Compliance Evaluation Trends FY 2015 OFCCP s Top 10 Violations Ten Key Essentials to OFCCP Survival Questions and Answers 4

5 Rules of Engagement Include but are not limited to EEO Clause (non discrimination & affirmative action) Executive Order, as amended (EO), and Section 503 of the Rehabilitation Action of 1973, as amended (503) $15,000 Threshold/No minimum # of employees Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended (VEVRAA) $150,000 Threshold/No minimum # of employees Written Affirmative Action Programs EO, and 503 $50K/50 employees VEVRAA $150K/50 employees (on or after 10/1/2015) 5

6 Rules of Engagement continued Include but are not limited to Submission of Reports EEO-1 VETS 4212 (FORMERLY VETS 100 and VETS 100A) Posters Recordkeeping 2 years 3 years Longer where adverse impact is found Allow OFCCP Access During normal business hours to its place of business for the purpose of conducting onsite compliance evaluations and complaint investigations. Note: Under OFCCP s Active Case Management Protocol, every 25 th compliance evaluation is subject to a full compliance evaluation regardless of indicators. Each contractor shall permit the inspecting and copying of such books and accounts and records, including computerized records, and other material as may be relevant to the matter under investigation and pertinent to compliance with the Order (Act(s)). (41 CFR , (41 CFR , 41 CFR )) 6

7 Rules of Engagement Include but are not limited to Job listings with the state employment service delivery systems Accessibility Reasonable Accommodation(s) Utilization Analysis for Individuals with Disabilities Hiring Benchmark for Protected Veterans NEW and/or ADDITIONAL VEVRAA and 503 Invitations to Self-Identify Pre-Offer Post Offer Survey Workforce (503 only) Measure the impact of personnel decisions continues Recruitment, hiring, promotion, termination, transfer, compensation, benefits, etc. Measure the effectiveness outreach and recruitment efforts Develop and implement corrective actions as appropriate Assessments of personnel processes, physical/mental qualifications 7

8 Rules of Engagement - Responsibility When the Company agreed to the EEO Clause in Government Contracts, the Company agreed: to provide for the implementation of equal employment opportunity and the affirmative action program by assigning responsibility and accountability to an official of the organization. Depending upon the size of the contractor, this may be the official's sole responsibility. He or she must have the authority, resources, support of and access to top management to ensure the effective implementation of the affirmative action program. (41 CFR (a)). That an official of the contractor shall be assigned responsibility for implementation of the contractor's affirmative action activities under this part. His or her identity should appear on all internal and external communications regarding the company's affirmative action program. This official shall be given necessary senior management support and staff to manage the implementation of this program. (41 CFR (i) and 41 CFR (i)). 8

9 All OFCCP CE Closures by Industry FY 2010 FY 2015 North American Industry Classification System (NAICS) Manufacturing 22.1% 54 Professional, Scientific, and Technical Services 16.6% 23 Construction 11.1% 62 Health Care and Social Assistance 10.1% Administrative and Support and Waste Management and 56 Remediation Services 8.5% 51 Information 5.3% 42 Wholesale Trade 3.4% Transportation and Warehousing 3.4% 81 Other Services (except Public Administration) 3.1% 52 Finance and Insurance 3.0% 22 Utilities 2.8% 72 Accommodation and Food Services 2.6% Retail Trade 2.4% 61 Educational Services 1.4% SOURCE: DOL ENFORCEMENT DATABASE 9

10 Non-Construction OFCCP Compliance Evaluations Under 50 Employees FY COMPLIANCE EVALUATIONS CONCILIATION AGREEMENTS FINANCIAL AGREEMENTS CONSENT DECREES (11.6%) (19.1%) 5 (1.3%) 2 (0.5%) (17.3%) 5 (0.9%) (19.1%) 6 (1%) (10.7%) (10.3%) 0 0 SOURCE: DOL ENFORCEMENT DATABASE 10

11 Non-Construction OFCCP Compliance Evaluations Under 50 Employees FY 2014 FY 2015 North American Industry Classification System (NAICS) Manufacturing 20.8% 54 Professional, Scientific, and Technical Services 20.1% Administrative and Support and Waste Management and 56 Remediation Services 11.5% 62 Health Care and Social Assistance 11.1% 51 Information 6.1% 42 Wholesale Trade 4.3% 22 Utilities 3.7% 81 Other Services (except Public Administration) 3.5% Transportation and Warehousing 3.4% 72 Accommodation and Food Services 2.7% 52 Finance and Insurance 2.1% Retail Trade 1.9% 61 Educational Services 1.4% SOURCE: DOL ENFORCEMENT DATABASE 11

12 Exhibit 1 - OFCCP COMPLIANCE EVALUATION TRENDS FY 2008 TO FY 2015 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 TOTAL COMPLIANCE EVALUATIONS NOTICE OF COMPLIANCE CONCILIATION AGREEMENT CONSENT DECREES FINANCIAL AGREEMENTS % 12.5% 0.1% 1.8% % 15.8% 0.2% 1.9% % 17.0% 0.1% 1.6% % 24.9% 0.2% 2.5% % 29.9% 0.2% 3.2% % 25.3% 0.04% 2.3% % 13.2% 0.1% 1.5% % 16.5% 0% 1.3% SOURCE: DOL ENFORCEMENT DATABASE 12

13 LETTER L-4: NOTICE OF CLOSING: COMPLIANCE EVALUATION (NO VIOLATIONS FOUND) Certified Mail, Return Receipt Requested AND Electronic Mail [Date] [Name of CEO] [Title of CEO] [Establishment Name] [Street Address] [City, State, Zip Code] Dear (insert name of contractor s official): The U.S. Department of Labor, Office of Federal Compliance Programs (OFCCP), recently completed a compliance evaluation of your equal employment opportunity policies and practices at (insert name and location of the establishment or functional unit reviewed). (Select either Paragraph 1 or Paragraphs 2 and 3) Paragraph1: During the compliance evaluation process we found no apparent violations of Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended (Section 503), the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (Section 4212) or Executive Order The Director of OFCCP or the Regional Director may modify this determination within 45 calendar days of the issuance of this letter. OR Paragraphs 2 and 3: During the compliance evaluation process we identified and resolved the following violation(s): [insert the technical violation(s) resolved during the compliance evaluation, including the appropriate regulatory citation and specific remedy]. It is understood that this/these violation(s) will not recur. There were no other apparent violations of Executive Order 11246, Section 503 or Section This determination may be modified by the Regional Director, or by the Director of OFCCP, within 45 calendar days of the issuance of this letter. The OFCCP appreciates the cooperation of you and your staff during the conduct of the compliance review. Sincerely,

14 POLL What do you believe is the #1 violation cited by OFCCP? Past Performance Hiring Discrimination Salary discrimination Recruitment Recordkeeping Written AAP 14

15 2015 Public Poll Results What is the #1 Violation cited by OFCCP in FY 2015? Recordkeeping 50.0% Recruitment 27.8% Salary Discrimination 11.1% Hiring Discrimination 11.1% Past Performance 0.0% 0.0% 10.0% 20.0% 30.0% 40.0% 50.0% 60.0% 70.0% 80.0% 90.0% 100.0% Manchester Consultants 15

16 Public Poll Results What is the biggest challenge with OFCCP recordkeeping requirements? 0% 10% 20% 30% 40% 50% LACK OF SUPPORT 11% REGULATIONS UNCLEAR/LACK OF UNDERSTANDING 14% TOO BURDENSOME 21% ALL THE ABOVE 47% OTHER 7% a 16

17 10. Accommodation Discrimination 9. Salary Discrimination 8. Selection or Testing 7. Systemic Discrimination 6. Hiring Discrimination 5. Other (formerly Denial of Access) 4. Past Performance 3. Written AAP 2. Recordkeeping 1.Recruitment

18 OUTREACH AND RECRUITMENT Females and Minorities Placement Goals Executive Order AAP For Protected Veterans including Mandatory Job Listing ** *Additional requirement Establish Hiring Benchmark for Protected Veterans using one of two options prescribed by the OFCCP Individuals with Disabilities *Additional requirement 7% Utilization Goal by Job Group for Individuals w/disabilities employers with over 100 employees or total workforce for employers with 100 or fewer employees

19 Exhibit 2 - All Industry Violation Trends FY FY FY TOTAL CAS, CDS, FAS #1 #2 #3 #4 #5 #6 #7 #9 #8 #10 Recruitment Recordkeeping Written AAP Past Performance Other (Formerly) Denial of Access Alleged Hiring Alleged Systemic Alleged Selection or Testing Alleged Salary Alleged Failure to Accommodate % 47.0% 28.6% 29.8% 18.2% 6.2% 3.4% 0.7% 2.7% 3.2% % 46.1% 26.5% 30.2% 21.6% 11.6% 6.3% 2.1% 3.5% 3.5% % 52.2% 30.8% 25.5% 22.5% 8.1% 5.4% 1.9% 1.7% 0.9% SOURCE: DOL ENFORCEMENT DATABASE

20 1400 EXHIBIT 3 OFCCP Violation Trends All Industries FY 2008 FY RANKED BY FY 2012 #1 #2 #3 #4 #5 #6 #7 #8 #9 #10 FY TOTAL CAS, CDS, FAS Recruitment Recordkeeping Past Performance Written AAP Denial of Access Alleged Hiring Disc. Alleged Systemic Disc. Alleged Salary Disc. Alleged Failure to Accommodate Alleged Selection or Testing % % % % % % % 7 1.1% 3 0.5% 9 1.4% % % % % % % % 6 0.9% 2 0.3% % % % % % % % % % 9 1.0% 6 0.7% % % % % % % % % % % % % % % % % % % % % SOURCE: DOL ENFORCEMENT DATABASE

21 OFCCP FACTS - FY 2015 COMPARED TO FY 2013 Description FY 2015 FY 2014 FY 2013 Complete Compliance Evaluations 2,603 3,839 4,100 Percent found in violation including those with NOC 19% 17% 30% Percent found in violation with CA, CD or FA 17.9% 14.8% 27.6% Total Backpay collected $5,891,853 $11,772,008 $7,801,497 Other benefit dollars collected $152,492 $879,105 $8,389,598 Number of employees and applicants affected 16,040 22,952 9,268 Jobs resulting from settlements 530 1,267 1,453 Number of employees covered by organizations under review 1,181,917 1,557,113 1,554,804 SOURCE: DOL ENFORCEMENT DATABASE & OFCCP FOIA REQUEST 21

22 AVERAGE # DAYS COMPLIANCE EVALUATION IS OPEN Compliance Evaluation 720 days Compliance Evaluation with Discrimination Over 900 days How might that affect an organization? 22

23 OFCCP FY 2015 Settlements (not all inclusive) Savannah River Nuclear Solutions Settles Pay Discrimination Case with DOL $235,000 Compensation Sex (Females) and Race (African Americans) United Mailing Services Settles Hiring Discrimination Case with DOL $120,000 Hiring Race (African Americans) La Pac Manufacturing Settles Hiring Discrimination Case with DOL $235,000 Hiring Race (African Americans and Whites) Oral Arts Laboratory Inc. settles hiring discrimination case with US Department of Labor $115,000 Hiring: Dexterity Test Sex (Females) Race (African Americans) Steering Sex (Males) Comcast Corporation settles charges of sex and race discrimination $190,000 Steering Sex (Females) Hiring Race/National Origin (African Americans, Asians, Hispanics) Lahey Clinic Settles Pay Discrimination Case with DOL $190,000 Compensation Sex (Females) Johns Hopkins University Settles Race and Sex Discrimination Case with DOL $359,263 Harassment, retaliation, and compensation Sex (Females) and Race (African Americans) 23

24 OFCCP s CLASS MEMBER LOCATOR The Class Member Locator is in support of President Obama s Transparency and Open Government initiative. OFCCP is making its Conciliation Agreements involving financial remedies for discrimination available online in the Department of Labor s FOIA Reading Room. The website identifies contractors by name, city, and state, the job titles included as part of the settlement, the affected group(s) at issue, the deadline for contacting the OFCCP, and allows website visitors to read a redacted copy of the Conciliation Agreement including the settlement amount, the President/CEO or other designated individual that entered into the agreement on behalf of the company with the OFCCP. According to OFCCP s FAQs, appearance on OFCCP s Class Member Locator is non-negotiable and that all monetary settlements will appear on this list. To view click here 24

25 OFCCP BEGINS FY 2016 WITH A BANG! Don t let OFCCP S FY2015 trends fool you the Pedal has Hit the Metal in FY2016! 25

26 41 CFR Program Summary R E M I N D E R The affirmative action program must be summarized and updated annually. The program summary must be prepared in a format which will be prescribed by the Deputy Assistant Secretary and published in the FEDERAL REGISTER as a notice before becoming effective. Contractors and subcontractors must submit the program summary to OFCCP each year on the anniversary date of the affirmative action program. 26

27 Ten Key Essentials to OFCCP Survival Key Essential 1: Know and Understand the Administrative Obligations Key Essential 2: Develop, Implement and Maintain AAPs Key Essential 3: Document, Document, Document Key Essential 4: Measure the Impact Key Essential 5: Assess and Evaluate Key Essential 6: Manage - Monitor Key Essential 7: Accountability Key Essential 8: Consistency Key Essential 9: Keep it Job Related Key Essential 10: Educate 27

28 2015 Key Essential 1 ESSENTIAL 1: KNOW AND UNDERSTAND THE ADMINISTRATIVE OBLIGATIONS What you don t know, can hurt you. Sr Leaders Sales & Marketing Procurement Suppliers Vendors Supervisors & Managers Recruitment Partners 28

29 2015 Key Essential 2 ESSENTIAL 2: DEVELOP, IMPLEMENT AND MAINTAIN CURRENT AAPS AND MAINTAIN PRIOR YEAR AAPS AND ANALYSES AS PRESCRIBED AFFIRMATIVE ACTION PROGRAM 2015 AFFIRMATIVE ACTION PROGRAM 29

30 2015 Key Essential 3 ESSENTIAL 3: Your ability to explain or defend even the best personnel decisions often may depend upon your ability to show that you acted for valid non-discriminatory reasons. 30

31 2015 Key Essential 4 ESSENTIAL 4: MEASURE THE IMPACT Personnel Policies & Procedures Recruitment/Outreach Hiring Tests Workforce Demographics Promotion Discipline Transfer Demotion Termination Compensation Accessibility, etc. 31

32 2015 Key Essential 5 ESSENTIAL 5: ASSESS AND EVALUATE All indicators Bridge the Gaps to include but not limited to Affirmative Action Commitments Workforce Demographics Department Work Units/Groups Job Groups Job Titles Job Assignments Tenure EEO Trends Impact of Personnel Decisions Compensation Recruitment Hiring Promotion Termination Retention Tenure 32

33 Example of GAP Assessment of IWD Outreach/Recruitment JOB GROUP 2 - PROFESSIONALS APPLICANTS REFERRAL SOURCE DISABLED STATUS N Y JOB GROUP 2 - PROFESSIONALS HIRES REFERRAL SOURCE DISABLED STATUS Grand Total % N Y Grand Total % XYZ COMPANY % XYZ COMPANY % BLANK % GAP BLANK % Company Website % Company Website 0.0% Employee Referral % Employee Referral % Goodwill % GAP Goodwill 0.0% Internet - LinkedIn % Internet - LinkedIn 0.0% Job Board - Indeed.com % Job Board - Indeed.com 0.0% Job Board - Monster.com % Job Board - Monster.com % Job Fair % Job Fair 0.0% Magazine % Magazine 0.0% Newspaper % Newspaper 0.0% Other (Non Internet) % GAP Other (Non Internet) % State Unemployment State Unemployment Organization % GAP Organization 0.0% 33

34 2015 Key Essential 6 ESSENTIAL 6: MANAGE 34

35 2015 Key Essential 7 ESSENTIAL 7: ACCOUNTABILITY The focus of Affirmative Action is not just about meeting specific goals, but how they are achieved. The how affects the liabilities that are created in the process that affects the bottom line. 35

36 Key Essential 8 ESSENTIAL 8: CONSISTENCY BE CONSISTENT IN THE STANDARDS, POLICIES AND PROCEDURES 36

37 Key Essential 9 ESSENTIAL 9: 37

38 2015 Key Essential 10 ESSENTIAL 10 EDUCATE ALL PERSONNEL AND DECISION MAKERS 38

39 Affects of Non-Compliance The Company s Bottom Line Productivity Morale Recruitment of new employees Employee retention Continue to do business with the government New business opportunities 39

40 If It Can t Be Measured, It Can t Be Managed, and Can be Costly The Choice is Yours! 40

41 41

42 Presenters Sandra Hueneman, is the President and founder of Manchester Consultants and has over 29 years success in the EEO/Affirmative Action (AA) arena. Sandra has experience both within the OFCCP, and outside as a practitioner assisting employers with their EEO/AA needs. Sandra has held a number of positions with OFCCP at the District, Regional and National Offices as an Assistant District Director, Acting District Director, Sr. Compliance Officer, Program Analyst. Sandra s background also includes holding positions at a major law firm as Sr. Affirmative Action Advisor to clients across the U.S., Human Resource Manager for a Fortune 500 Company, and Human Capital Principal Consultant for Fortune 500 clients. 42

43 Presenters Teresa Turner is one of Manchester Consultants Strategic Alliances and is President, EEO/AA Consultant of Synchronized Resources, Inc. Ms. Turner specializes in equal employment opportunity/affirmative action (EEO/AA) program administration. She has assisted organizations across the country in developing and implementing EEO/AA programs designed to align compliance functions with the core values of the organization. 43