Affirmative Action Compliance in an Age of Increased Enforcement Activity Jennifer B. Sandberg Fisher & Phillips LLP 1075 Peachtree Street, NE Suite 3500 Atlanta, GA 30309
Enforcement We are going to be extremely proactive and aggressive. The message is it s a new day at the Department of Labor and it s a new day at the OFCCP. Patricia A. Shiu, Director of the OFCCP Feb. 16. 2010
Overview Coverage Creating an Audit Ready AAP Creating Audit Ready Supporting Documentation Compensation Remedies Winds of Change
Are You a Federal Contractor? Well, you are here Goods or services (or construction) are necessary in whole or in part for the completion of the federal contract
An Audit Ready AAP Desk audit response strategy generally Narrative Strategy for AAP components Org profile, job groups, availability, goals, problem areas Numbers
Desk Audit Response Strategy Benefit of Attorney-Client privilege When is AAP due to OFCCP? What is current plan status? What is plan year? Which establishment is subject to audit? Do you build plans by establishment?
AAP Narrative Read it (and read the regs) Customize it Keep it simple Live it Be prepared to prove it 11246 503 and Vets
AAP Organizational Profile Workforce analysis Job titles ranked by lines of progression or department Job tiles ranked by pay within line or department Gender, race and ethnicity Organizational display Think org chart Job title, gender, race, and ethnicity
Job Groups Did anyone hear me say EEO group? EEO groups used for EEO-1 reporting to the EEOC Job Groups used to build AAP So how do EEO groups and Job Groups overlap?
Availability and Progress Toward Goals Availability Internal: promotable, transferable, trainable External: possess skills in recruitment area Keep it simple Progress Toward Goals Try to avoid goals Try to meet the ones you have Look for patterns Study applications and hiring/promo process
Problem Areas Really? If you said yes, fix it Use this section of the AAP to describe all of the things that could have been problems but which are not problems at your establishment Transportation, training, testing, hiring process, referral process, EEO policies, management involvement, community outreach, etc.
AAP Numbers EOY and the most recent EEO-1 Importance of Job Groups Hires Know the SD and Fisher s Promos Voluntary terms Involuntary terms
Supporting Documentation Annual correspondence to recruiting sources about EEO policy and practices Job postings with applicable State DOL or workforce development Gender, race, ethnicity, disabilities, Vets
Supporting Documentation All vacancy announcements or job postings in all places contain EEO language Purchase Order contains required flowdown language
Supporting Documentation Collective bargaining agreement, if applicable Handbook and/or stand-alone policies on harassment, discrimination, EEO, AA
Supporting Documentation AA/EEO Policy Statement EEO-1 and VETs reports for most recent 3 years How you built these reports now becomes very important
Supporting Documentation Careers webpage accommodation language Attention Applicants: If you are an individual with a disability and require a reasonable accommodation to complete any part of the application process, please let us know. Likewise, if you are limited in the ability to access or use this online application process and need an alternative method for applying, we will determine an alternate way for you to apply. Please contact accommodations@webaddress.com or Jane Smith at 404-222-4444 for assistance with an accommodation.
Old Compensation Request annualized comp data (wages, salaries, commissions and bonuses) by either salary range, rate grade or level showing a total number of employees by race and gender and total comp by race and gender. Seek compliance coordination under the voluntary comp guidelines.
New Compensation Request annualized comp data (wages, salaries, commissions and bonuses) by either salary range, rate grade or level showing a total number of employees by race and gender and total comp by race and gender. You may also include any other information you have already prepared that would assist us in understanding your comp system.
Comp: Notice of Rescission 52 pages OFCCP s rationale Title VII principles Directive, not rule
Key Points in Comp Rescission Case-by-case Pay Analysis Groups Not just salary/wages Opportunities, etc.
COMP FAQs New Directive not applicable to current reviews if conflicts with 2006 regs 2006 regs apply to issuance of NOVs for reviews scheduled, open or otherwise pending as of [2/28/13] Self-audits continue to be required OFCCP s model may be refined with info timely provided by contractor
OFCCP March 11 Comp Webinar No one-size-fits all answer on how contractors should consider pay when reviewing plans No specific trigger points Expect a request for all employee individual data
Old Comp Follow-Up Employee Name or ID; Gender; Race/Ethnicity; Job title; Date of Hire; Date of last change in grade/job title; Part-time vs. full-time status; Exempt vs. non-exempt status; Annual base salary or hourly wage for full-time employees during the review period; Other paid allowances, if any, such as commission pay, overtime pay, bonus pay or shift differential. Report each such allowance in separate data columns. Similarly situated employee groups (SSEG s) if developed.
Examples of OFCCP Desk Audit Follow-Up Explanations and documentation of proof of hiring, promotion, and separation decisions. Request for information and proof of diversity outreach in recruiting. Explanation of downsizing and restructuring programs and decisions. Explanation of compensation data. Data analysis: applicant flow, areas of underutilization, employment decision information.
Winds of Change New Scheduling Letter Data by Title and JG, breakout minority designations, info on leave policies VEVRRA Job listing details, outreach, applicant survey, hiring benchmarks 503 of Rehab Act Hiring benchmark (7%) and accommodation
5 Steps to Successfully Prepare For an Audit 1. Maintain affirmative action obligations and create successful diversity practices. 2. Comply with items in the narrative. 3. Update employment practices for recruiting and hiring. 4. Train your managers on AAPs. 5. Stay up-to-date with the law and proposed or expected changes in regulations or trends.
Basic Advice on Interface with OFCCP Cooperative and helpful (to a point, understanding this is a legal process, ensure input from attorney). Responsive (with input from professionals) with organized/professional data presented. Expeditious as possible. Positive about Company s processes. As with all business dealings, strive for good working relationship and rapport.
Possible OFCCP Actions Predetermination Notice: Letter to contractor of preliminary findings of discrimination pattern or practice; opportunity to respond. Right of Response: Contractor s right to provide legitimate, nondiscriminatory reasons for actions after OFCCP s prima facie discrimination showing. Notice of Violation (NOV): OFCCP letter to contractor of violation of EO, 503 or VEVRAA found during review which must be remedied. Notice of Alleged Noncompliance: OFCCP letter to contractor of violation of Conciliation Agreement and enforcement proceedings with 15 days to respond that violation did not occur. Debarment: Order declaring contractor ineligible for award of future contracts due to violation.
OFCCP Remediation Processes Conciliation: Discussions between OFCCP and contractor to resolve noncompliance findings. Conciliation Agreement: Binding written agreement specifying contractor commitments to resolve alleged violations.
Predetermination Notices Overview: Liability and Remedial Phase Use and Contents of Notice OFCCP Procedures when contractor does/doesn t respond Disparate Impact cases Disparate Treatment cases
Conciliation Agreement Right to revisit facility Report back to OFCCP Settlement Agreement Remedies v. Sanctions
Notice of Violations (NOV) OFCCP: No violation of its rules should be resolved without issuing NOV, which includes: Pattern or Practice Violation: Where contractor either fails to respond to a Predetermination Notice or its response does not substantially alter OFCCP s determination of pattern or practice discrimination. Other Violations Only: No pattern or practice violations, but violations such as those pertaining to individual discrimination or affirmative action obligations.
Proposed Citations Conciliation Agreement: Show Cause Notice Watch what you agree to Once process begins, it doesn t go away easily
Possible Remedies Back pay: Compensation for losses caused by discrimination (e.g., wages, benefits, overtime, incentive pay, raises, bonuses, fringe benefits). Front pay: Compensation for estimated future economic loss calculated on difference between victim s current pay (or pay rejected applicant should have received) and pay associated with rightful place, from time of agreement or order to certain time in future (usually when victim achieves rightful place). Injunctive Relief: Court order that contractor must act or refrain from acting (e.g. application question, provide reports).
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