A Bridge to Tomorrow. 75 th Annual NHRMA Conference & Tradeshow. Presented by

Transcription

1 A Bridge to Tomorrow 75 th Annual NHRMA Conference & Tradeshow Presented by

2 50 Shades of Grey The Complexities of OFCCP Compliance in 2013 Today s presentation is a discussion including opinions regarding compliance issues and should not be taken as legal advice. For formal legal advice attendees should seek legal counsel.

3 OutSolve Your Presenters: Patrick Savoy VP Operations Chris Lindholm VP Compliance Celebrating 15 years of supporting Affirmative Action Planning and Diversity for our clients Women s Business Enterprise (WBE) Serving over 400 companies nationwide Supporting >100 OFCCP audits annually

4 Agenda 1. Impact of New Regulations 2. New Federal Contract Compliance Manual 3. Compensation Enforcement 4. Record Keeping and Adverse Impact 5. Audit Preparation

5 Impact of New Regulations New Definition Disability: From FAQ: How does the ADAAA define disability? The ADA Amendments Act of 2008 (ADAAA) and the final regulations define a disability using a three-pronged approach: A physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an actual disability ) A record of a physical or mental impairment that substantially limited a major life activity ( record of ) When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor ( regarded as ). [Section (g)]

6 Impact of New Regulations New Definition Veterans: Disabled veterans Recently separated veterans (3 years) Recipients of Armed Forces service medal Served in active duty in war or campaign for which campaign badge authorized Under the Final Rule, a protected veteran is a veteran who is protected under the non-discrimination and affirmative action provisions of VEVRAA Contractor Solicitation new paragraph requiring contractors to state in their job solicitations and ads that they are equal opportunity employers of protected veterans and individuals with disabilities

7 Impact of New Regulations Transition Examples (Final Rule published in Federal Register in September 2013 and effective March 24, 2014): Annual plan date prior to 180-day implementation period January 1, 2014 Maintain current structure January 1, 2015 Implement Part C* January 1, 2016 AAP reflect results of new regulations for first time Parts A and B required 3/24/2014

8 Impact of New Regulations Annual plan date after 180-day implementation period April 1, 2014 Implement new plan requirements* April 1, 2015 AAP reflect results of new regulations April 1, 2016 Adapt outreach efforts towards reaching goals Parts A and B required 3/24/2014

9 Impact of New Regulations Disability Regulations - Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part Placement Goal 7% Goal for all job groups (Director can review ) EEO Categories acceptable if = Job Group 100 or fewer employees = goal is for entire workforce No monetary violations so long as the process is undertaken Sheltered workshops cannot be used to meet goals

10 Impact of New Regulations Veterans Benchmark Just a goal right? Not exactly Benchmark equal to annual percentage supplied by OFCCP based on 1) National % of veterans in the civilian workforce* 2) Benchmark from BLS and VETS/ETA and factors developed by the contractor Three (3) year record keeping requirement Analyze by Job Group? Acceptable but not required * Not equal to VEVRAA data

11 Impact of New Regulations Self-ID Forms (Disability): Pre-Offer: EEOC approved. Template will be provided (Subpart C) Post-Offer: Must invite current employees to identify and update every five (5) years with one reminder inbetween Employers can identify a disability if it is obvious or if an accommodation request is made (no guessing)

12 Impact of New Regulations Self ID Forms (Veterans) Pre-Offer Solicitation of Protected Veteran only Post-Offer Solicitation of specific category Timing of Pre-Offer Follows Internet Applicant Rule

13 Impact of New Regulations EO Clause: Must be incorporated into contracts and subcontracts. Required Text: This contractor and subcontractor shall abide by the requirements of 41 CFR (a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities. This contractor and subcontractor shall abide by the requirements of 41 CFR (a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.

14 New Federal Contract Compliance Manual New FCCM: What is the FCCM? Contractors should not use more than one method so as to mask underutilization. Follows Uniform Guidelines End of the 80% and Whole Person era? Do you use two utilization tests? Establishes IRA <80% as threshold for adverse impact Internal audits becoming more important

15 New Federal Contract Compliance Manual Frito-Lay case ongoing In order to fully investigate and understand the scope of potential violations the CO may need to examine information after the date of the Scheduling Letter in order to determine, for example, if violations are continuing or have been remedied. If the CO believes it necessary to request information related to periods after the date of the scheduling letter the CO must discuss the issue with his or her supervisors.

16 New Federal Contract Compliance Manual Nothing in the FCCM itself appears to specify timeliness apart from deadlines actually contained in regulations Nothing authorizes OFCCP to impose arbitrary deadlines for responses to requests for information Prompt responses expected without definition of prompt Example: Request that contractor submit missing support data promptly 5-day initial conciliation contact deadline in Notices of Violations FCCM provides that The CO must provide the contractor with written confirmation of the onsite date(s) and time(s) at least three business days prior to the onsite.

17 Compensation Enforcement Status of Compensation Enforcement: 1990 s Dubray Analyses 2000 s Statistical Analyses 2006 Failed Guidelines 2009 Pay Equity Task Force 2013 Directive 307

18 Compensation Enforcement Directive 307: Summary of OFCCP Compensation Investigation Procedures Below are procedures that the CO follows in reviewing contractor compensation data and information. It is important to note that the order in which these procedures occur may vary based on the facts and circumstances of each review. At any stage in the process, OFCCP may determine, based on the evidence, that it is appropriate to close the review or may determine that further review is warranted. 1. Conducts Preliminary Analysis of Summary Data (if necessary or appropriate) 2. Conducts an Analysis of Individual Employee-Level Data 3. Determines the Approach from a Range of Investigative and Analytical Tools 4. Considers All Employment Practices that May Lead to Compensation Disparities 5. Develops Pay Analysis Groups 6. Investigates Systemic, Small Group and Individual Discrimination 7. Reviews and Tests Factors before Accepting the Factors for Analysis 8. Conducts Onsite Investigation, Offsite Analysis, and Refinement of the Model Contractors have an opportunity to provide clarification of their submissions and to explain their compensation system and practices.

19 Compensation Enforcement OFCCP Audits: The basics (what we see in typical requests): Emp ID, race, gender, title, hire date, job group, job change date, exempt/non-exempt, annual salary, etc. The additional variables (other items seen): Education, bonuses, commissions, overtime, shifts, performance scores, etc. (less reliable) On the table (where we may be going): Starting salary, job placement, progression Try to avoid giving OFCCP junk data

20 Record Keeping and Adverse Impact Is this still a critical item? Common record keeping issues How to minimize exposure/risk What is the right analysis? What to expect in an audit

21 Audit Preparation Standard submission issues Expected follow-up questions Driving the process Communicating with OFCCP

22 Thank you for joining us! Questions and Answers Chris and Patrick (504) * psavoy@outsolve-hr.com * clindholm@outsolve-hr.com *