OFCCP AFFIRMATIVE ACTION IN THE FINANCIAL SERVICES INDUSTRY

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1 OFCCP AFFIRMATIVE ACTION IN THE FINANCIAL SERVICES INDUSTRY MAY 28, 2014 Jon Zimring GREENBERG TRAURIG, LLP ATTORNEYS AT LAW Greenberg Traurig, LLP. All rights reserved.

2 THE SOURCE OF THE OBLIGATION > ANY DIRECT CONTRACT WITH THE FEDERAL GOVERNMENT > ANY SUBCONTRACT WITH A PRIME CONTRACTOR WHICH IS NECESSARY TO THE FULFILLMENT OF THE FEDERAL GOVERNMENT CONTRACT > OFCCP: IN FINANCIAL SERVICES/BANKING FDIC INSURANCE > FDIC IS A QUESTIONABLE BASIS FOR JURISDICTION, BUT WHO WANTS TO BE THE TEST CASE? 2

3 THE DUTY TO PASS THE LANGUAGE FORWARD IN SUBCONTRACTS > IF BASED ON A DIRECT CONTRACT OR SUBCONTRACT: IS IT NECESSARY TO THE FULFILLMENT? > IF YOUR ONLY LINK IS FDIC INSURANCE: > RECENT GUIDANCE FROM OFCCP ON DISABILITY VETERANS ALLOWS CONTRACTORS TO COMBINE ALL INCORPORATION BY REFERENCE CLAUSES INTO ONE. > See FAQ #2 under Equal Opportunity Clause found at hep:// _faq.htm.

4 AFFIRMATIVE ACTION UNDER E.O > OBAMA OFCCP BEARS NO RESEMBLANCE TO THE BUSH OFCCP: ACE VERSUS ACM > VERY BROAD ENFORCEMENT WITH A FOCUS ON TECHNICAL COMPLIANCE > HAVE COLLECTED SUBSTANTIALLY LESS, BUT THE COST OF COMPLIANCE REVIEWS IS SUBSTANTIALLY MORE > ENORMOUS TIME, ATTENTION AND RESOURCES DEVOTED TO COMPENSATION DISPARITIES 4

5 YOUR AAP AS A MANAGEMENT TOOL > COMES RIGHT OUT OF THE REGULATIONS, WHICH HAVE BEEN IN PLACE FOR YEARS > NO LONGER ACCEPTABLE TO GENERATE AAP AND LEAVE THEM ON THE SHELF > OBAMA OFCCP FOCUSES ON WHAT CONTRACTORS ARE DOING WITH THE INFORMATION GENERATED BY THEIR AFFIRMATIVE ACTION PLANS > ONLY STARTS WITH AFFIRMATIVE ACTION PLAN > OFCCP LOOKING FOR AN AFFIRMATIVE ACTION PROGRAM, INCLUDING FOLLOW- UPS 5

6 WHAT KINDS OF FOLLOW-UPS? > PLACEMENT GOALS TAILORED OUTREACH EFFORTS AND ACTION ORIENTED PROGRAMS > COMPENSATION DISPARITIES: ANY MEASURABLE DIFFERENCE > IMPACT RATIO ANALYSES ON SELECTION DECISIONS: APPLICANT TO HIRE ANALYSIS COMPETITIVE PROMOTIONS INVOLUNTARY TERMINATIONS 6

7 AFFIRMATIVE ACTION UNDER 503/4212 > BOTH THE CONTRACTOR COMMUNITY AND THE OFCCP HAVE BEEN ON AUTOPILOT FOR 30 YEARS > OBAMA OFCCP HAS UNDERTAKEN A COMPLETE OVERHAUL OF THE REGULATIONS > NOT YET THE SAME RIGOR AS AAPS, BUT MUCH MORE RIGOROUS AND HEADED IN THAT DIRECTION > OFCCP ENFORCEMENT HAS BEEN MORE FOCUSED ON TECHNICAL COMPLIANCE, BUT ON NEW REGS OFCCP SAYS IT S LOOKING FOR GOOD FAITH EFFORTS > COMPLIANCE OBLIGATION TIED TO PLAN YEAR 7

8 WHAT S REQUIRED UNDER THE REVISED REGS > DISABLED AND VETERANS SELF IDENTIFICATION AT PRE- OFFER, POST- OFFER AND FOR INCUMBENTS > ASPIRATIONAL GOALS = 7% DISABLED; 8% VETERANS > 3 YEARS DATA COLLECTION, TRACKING AND RECORDKEEPING OBLIGATIONS > SPECIFIC, MANDATED ANALYSES OF DATA COLLECTED TO DETERMINE PROGRESS AGAINST ASPIRATIONAL GOALS AND IDENTIFY/ELIMINATE BARRIERS > EXPANDED SELF- ASSESSMENT OF OUTREACH AND RECRUITING 8

9 WHAT S REQUIRED UNDER THE REVISED REGS continued > INTERNAL REVIEW OF PERSONNEL PROCESSES/JOB DESCRIPTIONS > EEO CLAUSES PLUS SEPARATE NOTIFICATION TO SUBCONTRACTORS AND VENDORS > INTERNAL POSTINGS OF RIGHTS, POLICY STATEMENTS > TAGLINES FOR ELECTRONIC SOLICITATIONS AND ADVERTISEMENTS > FOR VETERANS, LISTINGS TO BE SENT TO ESDS > TRAINING 9

10 IN SUMMARY > PAPER APPROACH TO COMPLIANCE INSUFFICIENT > NEW REGULATIONS FOR DISABLED AND VETERANS CREATE BRAND NEW HR AND IT CHALLENGES > NEW OFCCP ENFORCEMENT METHODS, PRIORITIES AND FOCUS MEAN COMPLIANCE REVIEWS ARE NOW A MUCH DIFFERENT EXPERIENCE THAN IN THE PAST > A CLEAN BILL AT AUDIT DEPENDS MOST HEAVILY ON A PROACTIVE APPROACH; CHANCE FAVORS THE WELL PREPARED IN THIS ENVIRONMENT 10