A New OFCCP Era. Shakeups, Breakups, and Mergers Oh, My! Allen Hudson, SHRM-CP, PHR Director of Corporate Communications - HudsonMann October 17, 2017

Transcription

1 A New OFCCP Era Shakeups, Breakups, and Mergers Oh, My! Allen Hudson, SHRM-CP, PHR Director of Corporate Communications - HudsonMann October 17, 2017

2 Session Agenda Current State of OFCCP OFCCP Audit Stats & Trends Regulatory Updates Your Questions

3 Current OFCCP Status Part 1

4 DOL Leadership President Donald Trump Secretary of Labor Alex Acosta OFCCP Director VACANT (Acting Director, Thomas Dowd) OFCCP Deputy Director Thomas Dowd

5 To Merge, or Not to Merge? Merger reported to be off the table US Chamber and many advocacy groups against it Not much support in the government (including EEOC & OFCCP). So what will OFCCP Look like under the Trump administration?

6 Thomas Dowd at NILG Recurring themes: - Quality of Audits - Compliance Assistance

7 Quality of Audits Tom Dowd Quality more important that quantity of audits Secretary Acosta is no stranger to civil rights and Affirmative Action Asserted OFCCP s jurisdiction Doesn't believe in doing more with less

8 OFCCP Agency Trends OFCCP BUDGET OFCCP HEADCOUNT Budget Amount FTE Employees Dollars (in Millions) # FTE Employees FY 2016 FY 2017 FY FY 2016 FY 2017 FY 2018

9 Compliance Assistance Tom Dowd Compliance assistance does not get you on the audit list Ideas for voluntary training programs Reinforced the concept of VOLUNTARY compliance Applauded contractors for their work against discrimination

10 If you re timely, accurate, and work with us on data, chances are you get a letter of compliance. - Thomas Dowd at 2017 NILG Conference

11 Compliance Assistance Debra Carr What can OFCCP do to incentivize compliance outside of a compliance evaluation? Past Compliance Assistance activities included: FAQs, speaking, website, etc. Ideas for future activities: 1) training 2) national training conference 3) awards 4) registered agent of service for scheduling letters? 5) town halls for feedback

12 Compliance Assistance Debra Carr Acknowledged aspirational nature of Veteran and IWD goals and benchmarks 3% response rates on Contractors survey (sent to 6600) Halted national office training for COs Will attach expertise to performance standards and the work they are assigned

13 Compliance alone won't change the employment picture for underrepresented groups. - Debra Carr at 2017 NILG Conference

14 Still In Focus Pay Discrimination Mega Construction Projects Skilled Regional Centers (New York & San Francisco) High Quality Compliance Evaluations

15 Speculation ACM vs. ACE where do we go next?

16 U.S. Chamber of Commerce on OFCCP Right Mission, Wrong Tactics report Criticized OFCCP for adversarial approach & lack of transparency Recommends OFCCP: - adopt a more neutral enforcement approach - increase compliance assistance activities

17 Audit Trends and Focus Areas Part 2

18 OFCCP By the Numbers Source:

19 OFCCP AUDITS BY FISCAL YEAR OFCCP Audits Source: OFCCP Enforcement Database

20 Audit Outcomes Completion Type FY 2017 (Q1-Q3) Avg. FY07-FY16 Conciliation Agreement or Consent Decree 18.5% 17.1% EO Violation 18.5% 13.8% Section 503 Violation 6.6% 9.7% Section 4212 Violation 9.1% 12.3% Discrimination Violation 3.6% 1.8% Source:

21 1,057 Compliance Reviews Fiscal Year Notice of Compliance 77% 19% 206 Conciliation Agreements 30 Financial Agreements 2.8% <1% 5 Consent Decree Source: OFCCP Enforcement Database

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23 FY 2017 monetary relief (Q1-Q3) $10.5 M in FY 2016 $6 M in FY 2015

24 New Audit Scheduling Letter Requires additional compensation information Updated for new VEVRAA and Section 503 regulations Must show detailed race/ethnicity counts in activity reports

25 Audit Trends and Focus Areas Adverse Impact in Hiring Compensation and Pay Equity Job Steering Outreach Recordkeeping

26 of discrimination findings are from hiring discrimination FY 2017

27 Case Study Beverage Distributor Consent decree for $175,000 Alleged hiring discrimination against black applicants Violations included: - failing to keep complete & accurate records - failing to evaluate selection procedures

28 Avoiding Hiring Discrimination Solid job descriptions Consistent hiring process Use disposition codes Annual adverse impact analysis Validate all assessments and tests

29 of discrimination findings are from compensation issues FY 2017

30 Compensation Trends Compensation Interviews: 20 minutes 3 hours long Detailed, repetitive questions on pay policies and procedures Pay Analysis Groups

31 Compensation Interview Questions Does your company have written guidelines on compensation administration? Who determines the starting salary for a new employee? Are there annual performance increases? How do you ensure fair pay? Do you provide training on compensation administration?

32 Complaint Investigations New electronic filing form and system $50K settlement from disability complaint $19,600 average monetary relief (FY 2007-FY 2016) 79 Investigations FY 2017 Q1-Q3 (4 with monetary relief)

33 Complaints by Basis FY 2017 (Q1-Q3) Religion 4% Color 4% Gender Identity 2% Sexual Orientation 1% Veteran 11% Race 29% National Origin 12% Disability 18% Sex 19%

34 recent job steering settlement amount FY 2015

35 Job Steering Case Study 444 women steered into light-duty jobs with lower wages Adverse impact in hiring on males, African-Americans and Caucasians Settlement from reviews at nine separate facilities

36 Avoiding Steering Issues Require applicants to apply for specific positions Document applicant choice Defined application process

37 Outreach & Documentation Violations Ensure mandatory job listings are occurring Document specific outreach towards women, minorities, veterans and individuals with disabilities Maintain 3 years of employment and recruitment data

38 How Do You Minimize Potential Liability? Follow a formal application process Utilize disposition codes Avoid informal expressions of interest Set up an active consideration period Don t accept applications for any opening Posting temp to hire opportunities Review employee referral selection process Set and utilize minimum qualifications track outcomes Review testing validation

39 Regulatory Updates Part 3

40 Recent Changes Fair Pay and Safe Workplaces rescinded EEO-1 Report (pay data component shelved) Paid Sick Leave for Federal Contractors here to stay Minimum Wage for Federal Contractors Increasing in 2018

41 Your questions Part 4