Fulbright Forefront. The NEW OFCCP: Preparing for Changes and Handling an Audit in 2013

Transcription

1 Fulbright Forefront The NEW OFCCP: Preparing for Changes and Handling an Audit in 2013

2 Continuing Education Information We have applied for one hour of California, Minnesota, Texas and Virginia CLE, New York non-transitional CLE credit, and HRCI credit. Newly admitted New York attorneys may not receive non-transitional CLE credit. For attendees outside of the above states, we will supply a certificate of attendance that may be used to apply for CLE credit in the applicable bar/other accrediting agency. A certificate of attendance will be supplied to those who: 1. Participate in the web seminar by phone and the web. 2. Complete the online evaluation that we will send tomorrow. 22 2

3 Administrative Information Today s program is conducted in a listen-only mode. To ask an online question at any time throughout the program, simply click on the question mark icon located on the tool bar. We will try to answer questions as time permits. Everything we say today is opinion. We are not dispensing legal advice, and listening does not establish an attorney-client relationship. This discussion is off the record. Anything we say cannot be quoted without our prior express written permission. 3

4 Moderator Brian Greig Partner Fulbright & Jaworski L.L.P. Chair of Fulbright s Labor and Employment Department worldwide Over thirty-five years of experience in labor and employment counseling, litigation including many jury trials, and arbitration Clients include major public and privatelyheld companies in a variety of industries Certified in L&E by the Texas Board of Legal Certification Recognized in The Best Lawyers in America and Texas Super Lawyers

5 Fulbright s Affirmative Action Team Cost-effective, high-quality affirmative action plans Audit support based on legal expertise and understanding of the players Proactive approach to identifying and resolving adverse impact Focus on keeping clients up-to-date on latest developments

6 Today s Speakers Shafeeqa Watkins Giarratani Senior Associate Fulbright & Jaworski L.L.P. Attorney specializing in OFCCP regulations & affirmative action audits Successfully handled numerous audits for federal contractors from desk audit to conciliation Lead counsel in several potentially multi-million dollar audits Named Texas Rising Star Named Leading Lawyer in Chambers USA Guide 2013

7 Today s Speakers Lisa Kaiser Senior Affirmative Action Plan Project Manager Kairos Services Former OFCCP Director of Operations for the Southwest and Rocky Mountain Region Former Dallas OFCCP District Office Director Former San Antonio OFCCP Assistant District Director Veteran who served on active duty for the U.S. Army as a Judge Advocate in the U.S., Germany, Middle East and South Korea

8 Today s Speakers Mark Nagel, Director of Employment Practices, Best Buy Global Business Services & Best Buy Co. Inc. Handles Best Buy s employment practices globally, including OFCCP compliance, employee relations, wage and hour, and I-9/E-Verify compliance Board Member of North Texas ILG Previously in Human Resources Management at Target

9 Agenda The New OFCCP New Developments at the OFCCP Compensation Proposed Veterans/Disabled Regulations New Audit Procedures Review of Recent Conciliation Agreements Best Practices

10 The New OFCCP Behind The Scenes Aggressive Results-oriented: Good faith efforts alone are not sufficient More in-depth audits More conciliation agreements and large penalties for findings of discrimination Litigation-oriented OFCCP Director Patricia Shiu is a former civil rights attorney for employees Focuses Hiring and Compensation Cases Employment of veterans Employment of individuals with disabilities Patricia Shiu, OFCCP Director

11 New Developments at the OFCCP

12 Out With The Old: Pay Guidelines Feb. 28, 2013: OFCCP rescinded the 2006 Compensation Standards (Standards) and Voluntary Guidelines. No intent to replace the standards with a formal rule. OFCCP suggests that employers should rely on a host of other non-regulatory materials (such as compliance manuals, trainings, and directives) for guidance on how to prepare pay analyses and respond to pay investigations.

13 In With The New: Directive 307 Replaces all previous compensation directives and only roadmap to how the OFCCP will conduct future compensation evaluations. Conducts Preliminary Analysis of Summary Data (if appropriate) Conducts an Analysis of Individual Employee-Level Data Determines the Approach from a Range of Investigative and Analytical Tools Considers All Employment Practices that May Lead to Compensation Disparities Develops Pay Analysis Groups Investigates Systemic, Small Group and Individual Discrimination Reviews and Tests Factors Before Accepting the Factors for Analysis Conducts Onsite Investigation, Offsite Analysis, and Refinement of the Model

14 Proposed Regulations: Veterans/Disabled Hiring benchmarks Contractor must provide hiring benchmark for vets based on various data points Workforce composition goal: 7% disabled across job groups Pre-offer self identification Additional outreach efforts Additional data collection and recordkeeping Reasonable accommodation requirements

15 When will the proposed regulations pass? Currently at OMB But, OFCCP offices are already moving forward on some requirements Requests for veteran/disabled linkages (including contact information) More detailed, specific requests for outreach efforts (dates, websites, results) Self-identification inquiries Inquiries re: pre-employment physicals Questions regarding accommodations fulfilled/denied Medical restrictions in positions

16 New Audit Procedures More Detail & Focus on Technical Compliance Technical Compliance State Employment Listing Verification Posters Notification to employees that they can view AAP EEO clause in subcontracts/purchase orders and job ads (including examples) Detail Probes regarding AAP statements and compensation Policy review EEOC Charges

17 New Audit Procedures Background Checks Directive 306 Issued January 29, 2013 OFCCP adopts EEOC Enforcement Guidance on Background Checks Blanket rule regarding criminal convictions can create a disparate impact in hiring Requires federal contractors to use individualized assessment in exclusions from hiring based on criminal background

18 Focus Remains on Hiring Hiring cases for entry-level positions still the focus area Great focus on hiring as remedy Example: December 2012 Clougherty Packing Co. (sex discrimination in hiring) Almost $450,000 in back pay to 2,000 female job applicants 700 job offers

19 Prepare Now Best Practices

20 Prepare Now Compensation Audits Run compensation data by AAP job group, job title, and grade Review outliers and determine explanations Look for variables to explain any statistical significance Decide how data will be submitted in desk audit and any extra factors that will be provided Determine best model Review data by employment phase

21 Prepare Now Hiring Cases Carefully review all employment activity prior to submission Understand if there is any adverse impact by job title or job group by gender or minority status by minority sub-group Resolve issues beforehand or be ready to explain Entry-level positions or positions with few basic qualifications are greatest risk area

22 Prepare Now Vets/Disabled Regulations Review outreach efforts Document date, name, contact information and description of contact made Ensure your company has documentation of job postings at local unemployment office Determine workforce composition for veterans/disabled Training Maintain and review accommodation records Check medical conditions/physical requirements of job positions for adverse impact Review online applicant procedures for accommodations

23 Prepare Now Detailed Audits/Background Checks Confirm every statement in AAP narrative is accurate Check postings regularly Confirm employee manual is updated Ensure your company has a notification to employees regarding viewing AAP Audit inclusion of EEO clause in subcontracts/purchase orders and job advertisements Background Checks Review policy Convictions vs. arrests Blanket refusal vs. case-by-case

24 When You Think OFCCP Compliance, Think Fulbright. TM AUSTIN BEIJING DALLAS DENVER DUBAI HONG KONG HOUSTON LONDON LOS ANGELES MINNEAPOLIS MUNICH NEW YORK RIYADH SAN ANTONIO ST. LOUIS WASHINGTON, D.C FULBRIGHT [ ]