2013 Jackson Lewis LLP

Transcription

1 THE MATERIALS CONTAINED IN THIS PRESENTATION WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE PARTICIPANTS OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS LLP. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE. 2 1

2 Jackson Lewis LLP is dedicated to representing management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation. With over 700 attorneys in 49 locations nationwide, and a current case load of over 5,000 litigations and approximately 300 class actions, the firm has a national perspective and sensitivity to the nuances of regional business environments. Jackson Lewis is also a founding member of LTE Global, an alliance of premiere employment law boutique firms from around the world. Guided by the principle that a positive work environment results in enhanced morale and increased productivity, the firm devotes a significant portion of its practice to management education and preventive programs. This approach helps limit exposure to grievances, charges and lawsuits. 3 We have unparalleled experience preparing AAPs and defending them before the OFCCP in all industries and areas of the country. Our diverse team of attorneys, analysts, statisticians, and support staff prepares approximately 2,000 AAPs a year. Since 2009, we have defended over 250 OFCCP audits, including successful defense of Corporate Management ( Glass Ceiling ) Compliance Evaluations and Construction Contractor audits and on-sites. As a law firm, we offer more than consulting services, we offer strategic thinking and sophisticated legal representation. 4 2

3 Matt is a Partner in the Affirmative Action Practice Group at Jackson Lewis LLP, a national firm representing management exclusively in labor and employment matters. In this role, he regularly advises and counsels employers from all industries throughout the country about this highly specialized area of law. He directs the preparation of more than 400 AAPs each year and has defended hundreds of OFCCP audits, including Corporate Management Compliance Evaluations, for a broad range of employers across the country. Moreover, Matt serves as the Practice Group lead on responding to OFCCP allegations of systemic discrimination and has successfully resolved dozens of such claims. Matt serves as General Counsel to the American Association for Affirmative Action. In addition, he regularly presents to Industry Liaison Groups and other employer organizations around the country on EEO, affirmative action and diversity issues, including the Philadelphia Liberty ILG, for which he serves as Vice-Chair. Matt received his B.A. from the College of the Holy Cross in 1993 and graduated with honors from Hofstra University School of Law in While at Hofstra, he was Editor-in-Chief of the Hofstra Labor Law Journal and received the Award for Outstanding Performance in Labor and Employment Law. 5 OFCCP Regulatory Agenda 6 3

4 ! OFCCP Implemented Directive No. 305 Earlier This Month and Is Effective Through December 31, 2015! Directive 305 provides guidance to employers who desire to create affirmative action plans based on functional business units rather than by individual establishment also known as FAAPs. Implementation of Directive 305 rescinds Directive 296, in effect since June of 2011, and has put an end to the suspension on the Agency s acceptance of requests to develop or renew agreements with employers who wish to develop FAAPs.! Key Points to Note in the New FAAP Directive:! Strict criteria for FAAP approval! FAAP agreements expire after 3 years! Guaranteed audit of two functional units during the 3 year duration of FAAP agreement in order to be eligible for renewal! Failure to annually update OFCCP with changes to FAAP, such as contact information, can result in the scheduling of a compliance evaluation 7! The OFCCP s Proposed Changes to the Veterans Regulations Include:! Two step self-id process for veterans at the pre-offer and post-offer stages! Annual benchmarks (goals) for veterans! New annual data collection and analysis requirements! Mandatory job listing requirements and at least 3 linkage agreements! Internal dissemination of policy and expanded training! Annual review of physical/mental job qualifications! 5 year recordkeeping requirement! OFCCP will be able to ask for data beyond the date of the Scheduling Letter! Final Regulations Scheduled to Be Released April

5 ! The OFCCP s Proposed Changes to the Disability Regulations Include:! Collection of applicant/hire data concerning individuals with disabilities, including pre- and post-offer solicitations to self-identify and annual resurvey of employees! Mandatory job listing requirements, and at least 3 linkage agreements, and annual review the effectiveness of such recruitment efforts! Establishment of a utilization goal of 7% for persons with disabilities for all job groups! Annual review of personnel processes and physical/mental qualifications for each job! Mandatory documentation of personnel selections and written confirmation to employees of accommodation requests and denials of same! Final Regulations Scheduled to Be Released April ! The OFCCP s Compensation Data Collection Tool! The most recent guidance shows June 2013 as the date for release of a Proposed Rule concerning the Compensation Data Collection Tool. Its priority is labeled as significant.! Identification of potential problems of compensation discrimination at the establishment level that would warrant further review by OFCCP or self-audit by the contractor! Agency looking for viable replacement to the EO Survey, but it remains unclear what form the new data compensation tool will take! Identification and analysis of industry trends, contractor compensation practices and equal employment-related issues! OFCCP considering the possibility of requiring businesses that are bidding on future Federal contracts to submit compensation data as part of the RFP process.! The National Academies of Sciences (NAS) recently issued a report requested by the EEOC expressing concern about the data compensation tool, citing high costs, lack of vision for how data will be used and privacy concerns. 10 5

6 ! Proposed Construction Contractors Affirmative Action Requirements! The most recent guidance shows that in October 2013 the OFCCP will issue a Notice of Proposed Rulemaking! Would propose a new method of establishing affirmative action requirements that reflect the realities of the labor market and employment practices in the construction industry! Proposed Sex Discrimination Guidelines! The most recent guidance shows that in August 2013 the OFCCP will issue a Notice of Proposed Rulemaking! The OFCCP s regulations in this area are more than 30 years old! Would create new regulations that reflect the current state of the law! Compliance Manual 11 OFCCP Enforcement Activity 12 6

7 ! Courtesy Scheduling Announcement Letter (CSAL)! More than 1700 CSALs sent out in November 2012! Receipt does not guarantee a compliance evaluation will happen! Used to get sent to the company headquarters listing all locations possibly scheduled for a compliance evaluation! In November 2012, OFCCP announced it would move to a web-based notification system! OFCCP currently reviewing technology issues with web-based notification and privacy concerns 13! Outcomes from ACE Directive! Full desk audits and more on-sites have led to: Longer duration of reviews More technical violations Focus on good faith efforts Intense focus on vets and disabled outreach efforts Increase number of systemic discrimination cases» More Conciliation Agreements» More cases referred to U.S. Department of Labor s Solicitor Office 14 7

8 ! Applicant to hire adverse impact remains OFCCP s sweet spot.! The methods OFCCP is using to find adverse impact continue to evolve.! Traditional Analysis! Sub-Minority Analysis! Reverse Discrimination Analysis! Staged Analysis 15! September 2011! $2.25 million for 1,650 female applicants at four poultry processing facilities.! March 2012! $3 million for 21,000 male, female, White, Black, Asian and Hispanic applicants at 23 national delivery company locations.! June 2012! $2 million for 795 Black, Asian, Hispanic and female applicants at manufacturing plant. 16 8

9 ! OFCCP remains intently focused on federal contractors outreach to veterans and the disabled during compliance reviews! The Agency scrutinizes federal contractors listings with the state job service, linkages with veterans organizations and organizations servicing those with disabilities, employment of veterans, and individuals with disabilities, etc.! Employers must demonstrate that they have established procedures for attracting and employing veterans and individuals with disabilities.! Employers should be able to show that they have an ongoing relationship with veteran organizations and disability organizations.! It is imperative that employers retain documentation of their outreach efforts to veterans for production during a compliance review 17 9