What Should Your Company Submit to OFCCP at the Start of a Compliance Review?

This article originally appeared in the October 2012 edition of the LocalJobNetwork "OFCCP Digest." 

Your company has received that dreaded letter from the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) indicating that your company has been scheduled for an affirmative action compliance review. After the initial panic has subsided, it is time to consider what you will send to OFCCP in order to comply with the requests in the scheduling letter and itemized listing you've received.

While more affirmative action compliance reviews by OFCCP are now ending in conciliation agreements than was the case in the past, there are still plenty of companies that are receiving letters of compliance at the end of their reviews. The decision on what items to send to OFCCP and what items to hold back can be crucial in determining the outcome of an affirmative action compliance review. The 30 days between the time the scheduling letter is received and the time that your company's affirmative action plan is due to OFCCP should be used to make various strategic and tactical choices on what to provide to OFCCP.

National Research Council Releases Report on Compensation

The National Research Council (NRC) has released a prepublication version of a document entitled "Collecting Compensation Data from Employers" that discusses OFCCP and EEOC's recent efforts to collect and analyze compensation data from employers.  The report can be found on the National Research Council's website.  The 118 page document discusses the various policies and practices related to the collection of compensation data by various regulatory agencies and the interest these agencies have in collecting additional compensation data.

The NRC basically concludes that efforts to collect compensation data should be limited in scope and that the data collected should be carefully protected.  Among their specific conclusions are the following:

1. EEOC, along with OFCCP and the U.S. Department of Justice, should prepare a comprehensive plan in regard to how earnings data will be used before beginning any kind of data collection effort.
2. EEOC, OFCCP, and the DoJ should initiate a pilot study in order to evaluate the value of whatever tool is used to collect compensation data.  The pilot study should be conducted by an independent contractor, and that contractor should be asked to measure items such as data quality, cost, and burden on employers who are required to respond.
3. EEOC should "enhance its capacity" to both analyze earnings data and protect this information.
4. EEOC should collect data on rates of pay rather than actual earnings or pay bands.
5. EEOC should consider how it will develop appropriate data protection techniques and should support research into the development of applications that will assist in data protection.
6. EEOC should seek legislation that would help the agency ensure that it can protect confidential data. Such legislation should deal in part with data-sharing agreements with other agencies and should provide for penalties if compensation data is released.

While the conclusions in the NRC report primarily focus on EEOC, they are by extension also applicable to OFCCP's efforts to collect pay data.  The NRC report is likely to act as a significant deterent to OFCCP's plans regarding the implementation of a new compensation collection tool, and may act as a deterent to the agency's plans to release new guidance regarding how compensation should be analyzed.

Please note that the NRC report may be subject to change.  All information in the report is the copyright of the National Academies Press.

The Inherent Flaws in Availability Analyses

This article originally appeared in the August 2012 edition of the LocalJobNetwork "OFCCP Digest."

 

From the advent of the eight-factor analysis, availability analyses have been a central part of all federal affirmative action plans.  The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) changed from an eight-factor analysis to a two-factor analysis (i.e. an analysis examining only external populations and internal populations that may be able to enter jobs) more than ten years ago.  However, the central idea behind any availability analysis is the same: an availability analysis should provide a reasonably accurate picture of the percentage of minorities and females who are available for positions in any particular job group. 

As the U.S. Census Bureau enters the final stages of preparing for the release of new census data that will be used in availability analyses, it is worth taking a moment to ask an important question:  

Do the availability analyses found in affirmative action plans actually provide reasonably accurate information? 

From the NILG Conference: The Best Presentation of All

On Thursday, August 30, John Fox of Fox, Wang & Morgan gave a presentation to the National Industry Liaison Group conference that proved to be the one of the highlights of the conference.  While we'll cover Mr. Fox's remarks more fully in a later post, Mr. Fox (a widely recognized expert on OFCCP matters and a fellow contributor to the LocalJobNetwork OFCCP Digest) said that "OFCCP is broken" and advocated for the contractor community to help fix the agency.  Mr. Fox said that federal contractors should take an active role in helping OFCCP develop regulations, policies, and practices that will effectuate the agency's mission of providing affirmative action and equal opportunity.

The first part of Mr. Fox's presentation focused on the issues facing both OFCCP and the contractor community.  However, Mr. Fox's concluding remarks provided a unique and refreshing approach to the seemingly intractable problem of creating an environment where OFCCP and federal contractors can work together towards common cause.

It's difficult to know whether John's plan is even remotely viable.  In some ways, it doesn't matter.  Mr. Fox provided an unexpected solution to a fundamental problem that has troubled both attendees at this conference and individuals who are involved with OFCCP and its affirmative action regulations.  In my opinion, this was by far the best presentation I've seen at this conference.

From the NILG Conference: DOL Pay Discrimination Enforcement Update

On Wednesday, August 28, a number of members of the Department of Labor gave a presentation regarding OFCCP's current posture regarding pay discrimination.  The panelists were OFCCP Senior Program Advisor Pamela Coukos, OFCCP SWARM Regional Director Melissa Speer, OFCCP Mid-Atlantic Regional Director Michele Hodge, and Consuela Pinto from the Solicitor's Office in the DoL.

Ms. Coukos, who is intensively involved in pay equity issues on behalf of OFCCP, opened the presentation by talking about the legal requirements regarding pay found in OFCCP's regulations.  She indicated that employers are required to conduct a self-audit of pay practices on a regular basis, checking for race and gender disparities.  While no specific methodology is required by the federal affirmative action regulations, federal contractors must take action when adverse results are found.

From the NILG Conference: Debra Carr of OFCCP's Division of Policy, Planning and Program Development

On Wednesday, August 28, Debra Carr of OFCCP's Division of Policy, Planning and Program Development gave a presentation on activities within her division.  She started by indicating the revisions to the Federal Contractor Compliance Manual (FCCM) were basically complete and that OFCCP expects to release the revised FCCM by the end of this year.  The revised FCCM will be easily navigatable, and provide effective guidance to both OFCCP compliance officers and federal contractors.

Ms. Carr then talked about several other initiatives through her division.  The division is providing additional language support and assistance for persons with limited English proficience as OFCCP attempts to make information more widely available to workers and the general public.  For example, the agency is attempting to make interpreters and translators more widely available.  OFCCP is also creating new fact sheets and attempting to educate the public about the agency's mission and the obligations of federal contractors.

Nothing to See Here. Move Along. Move Along

With apologies to Star Wars purists, the first few days of this year's National Industry Liaison Group (NILG) conference have been much like that scene in Episode IV when Ben Kenobi uses his Jedi powers to cause the Stormtroopers to ignore the droids in the back of the speeder.  "Move along.  Move along" the Stromtroopers tell our intrepid crew.  And so it is here.  Nothing much new to report.  Move along.  Move along.

That doesn't mean there haven't been good presentations by capable experts at this conference.  Unfortunately, the simple fact is that the federal contractor community is basically in a holding pattern, waiting for the finalization of a series of proposed regulations and other changes to OFCCP's requirements.  Thus, the people at this conference are stuck talking about things we already know, with an occasion break for speculating about what might lie around the corner.

Move along.  Move along.

Here at the National ILG Conference

Hello from Hawaii!  We're here at the National Industry Liaison Group (NILG) conference and we'll be providing occasional updates during the week based on some of the presentations.  We're hoping for an interesting and informative conference.

The Inherent Flaws of Availability Analyses

(This post originally appeared in the OFCCP Digest at localjobnetwork.com)

From the advent of the eight-factor analysis, availability analyses have been a central part of all federal affirmative action plans. The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) changed from an eight-factor analysis to a two-factor analysis (i.e. an analysis examining only external populations and internal populations that may be able to enter jobs) more than ten years ago. However, the central idea behind any availability analysis is the same: an availability analysis should provide a reasonably accurate picture of the percentage of minorities and females who are available for positions in any particular job group.

As the U.S. Census Bureau enters the final stages of preparing for the release of new census data that will be used in availability analyses, it is worth taking a moment to ask an important question:

• Do the availability analyses found in affirmative action plans actually provide reasonably accurate information?

OFCCP Initiatives Stalled

While audit action has heated up considerably during 2012, many of OFCCP's major initiatives have stalled since the start of the year. Among the OFCCP initiatives where there has been no action are the following:

• Finalization of the revisions to the agency's regulations regarding veterans
• Finalization of the revisions to the agency's regulations regarding persons with disabilities
• Finalization of the proposed changes to the scheduling letter and itemized listing that are used to open an affirmative action compliance review
• A new set of regulations or guidance on compensation
• Revised regulations for construction contractors

This does not mean that OFCCP hasn't been busy during 2012. There are a significant number of compliance reviews occurring, and the number of conciliation agreements issued by the agency appears to have increased considerably. OFCCP has changed the way in which it is reviewing issues regarding veterans and persons with disabilities even in the absence of the finalization of its proposed regulations, and the agency has taken a more aggressive stance in investigating compensation issues.

A recent report in Politico suggests that the Obama administration has decided to slow down the issuance of new regulations and directives as the presidential election approaches. Whether this is the reason various OFCCP proposals have stalled or there is some other reason, we continue to wait for formal guidance from the agency on a number of fronts.

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