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Review of OFCCP Enforcement Statistics Related to Section 503 and VEVRAA





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In 2011, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) proposed to revise the regulations implementing the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act (Section 503). In light of these proposed changes, the Center for Corporate Equality (CCE) conducted an evidence-based analysis of enforcement data related to charges of discrimination against protected veterans and individuals with disabilities. If the proposed regulations are implemented they would redefine affirmative action and significantly increase the emphasis on anti-discrimination policies for these protected groups. This study seeks to answer the question of whether there is evidence available to support the implementation of the proposed changes. That is, do the data indicate that systemic discrimination against protected military veterans and the disabled is occurring at a rate high enough to justify major changes in the regulations that govern VEVRAA and Section 503.

Ten Contemporary Controversies in Adverse Impact Analyses of Selections




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In December of 2009, the Center for Corporate Equality (CCE) assembled a Technical Advisory Committee (TAC) on adverse impact analyses. This teleconference will focus on 10 of the more controversial topics discussed by the TAC, with particular emphasis on (1) issues that TAC members could not agree on, (2) TAC recommendations that may be inconsistent with what the presenters have seen in recent EEO agency enforcement and case law, and (3) issues directly related to the changing nature of Work and employment law.


CCE Webinar: A Review of OFCCP Enforcement Statistics from FY2009/2010





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This report is the third in a series that will annually summarize OFCCP enforcement statistics. The in-depth results of this analysis provide useful information about OFCCP‟s enforcement programs that the agency does not make publicly available. This report will also provide federal contractors subject to OFCCP review with important information that will facilitate their compliance with the agency‟s EEO and affirmative action requirements. We continue to urge the OFCCP to conduct comparable analyses of its enforcement results in the future and make these data available to the public.

CCE Webinar to Discuss TAC Meeting Results


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Overview

Although determining whether selection, promotion, and termination decisions result in adverse impact is an important topic for organizations, there is little guidance about the proper way in which these analyses should be conducted. This lack of guidance is problematic in that it is not unusual for professionals in the same organization to disagree about how these analyses should be conducted, and it is certainly not unusual for plaintiffs and defendants to disagree. To help determine if there are "best practices" in conducting adverse impact analyses, the Center for Corporate Equality (CCE) created a Technical Advisory Committee (TAC) consisting of 70 of the nation's top experts in adverse impact analyses.

TAC members consisted of a wide variety of EEO experts including industrial-organizational psychologists, labor economists, plaintiff and defense attorneys, HR practitioners, and former OFCCP and EEOC officials. The first step in the process was to administer a detailed questionnaire that asked TAC members to indicate how they would handle a variety of data, statistical, and legal interpretation issues commonly encountered in conducting adverse impact analyses. The survey results were used to identify topics where there was strong agreement as well as topics where there was strong disagreement. Results of this survey were used to structure the agenda for an in-person onsite meeting.

Forty-five of the TAC members then gathered at Georgetown University for a two-day face-to-face meeting to discuss responses to the survey and make general recommendations. These recommendations were combined with the survey results to create a best practice document that was distributed without cost to members of the EEO community on September 15, 2010. As a courtesy to federal enforcement agencies, one week prior to the public release of the best practices document, members of CCE briefed representatives from the OFCCP, EEOC, and Department of Justice on the TAC findings.


OFCCP Announces Plan to Rescind Compensation Standards

During the recent National ILG Conference in Las Vegas, OFCCP Director Patricia Shiu announced that the administration would be rescinding the compensation standards and guidelines. The compensation standards and guidelines were released under the Bush Administration on June 16th 2006. For the first time, these standards codified and published OFCCP’s protocol for enforcing systemic compensation discrimination.

OFCCP Issues ANPRM Soliciting Comments on Disability AAP Requirements

OFCCP has issued an Advanced Notice of Proposed Rulemaking (ANPRM) inviting the public to provide input on how the agency can strengthen the affirmative action requirements of the regulations implementing Section 503 of the Rehabilitation Act of 1973. The Section 503 regulations promote equal employment opportunity for applicants and employees with disabilities.

The ANPRM will be published in the Federal Register on July 23, 2010. All public comments must be received by September 21, 2010.


OFCCP Posts FAQ's on Ricci Decision

OFCCP has posted a set of questions and answers regarding last year's U.S. Supreme Court decision in Ricci v. DeStefano on the agency's web site.

The FAQ section includes:

- A brief synopsis of the Court's decision;

- A discussion of how the decision affects OFCCP's procedures during compliance reviews and contractors' affirmative action obligations regarding the use and validation of tests;

- General suggestions for contractors wishing to avoid a situation like the one that occurred in Ricci.

OFCCP Appoints Marika Litras, Ph.D. as Director of Operations in Pacific

OFCCP has announced the addition of Marika Litras, Ph.D. as Director of Operations, OFCCP in the Pacific region. Marika Litras has been a Statistician with OFCCP’s Division of Statistics & Technology since May, 2004, stationed in the Pacific Regional office in San Francisco, CA.

In addition to serving as the Pacific Region’s statistical expert, Ms. Litras was instrumental in the early development of OFCCP’s statistical analysis program, has been involved in the analysis and resolution of key cases across the nation, has served as OFCCP’s principle trainer on statistical techniques related to OFCCP’s enforcement efforts, and has routinely represented the agency at speaking engagements with the Federal contractor community.

Before joining OFCCP, Ms. Litras served as a statistician for the Administrative Office of the U.S. Courts (AOUSC) conducting statistical forecasts for the federal judiciary and research studies to improve the use of jurors in U.S. District Courts. Prior to her term with AOUSC, she spent four years at the U.S. Department of Justice’s Bureau of Justice Statistics where she designed and conducted statistical studies on the prevalence of hate crime, civil rights litigation in the federal courts, tribal justice systems, indigent defense, and other civil justice issues.

Ms. Litras holds a Ph.D. in Political Science from the University of Houston.


OFCCP Releases New CSAL Letter - No Limit on the Number of Compliance Evals

The OFCCP announced on their website that a new round of Corporate Scheduling Announcement Letters (CSAL) will be released in the near future. Additionally, the text of the new letter was also released. As many readers know, there were rumors circulating around the contractor community that the OFCCP would be discontinuing the "audit heads-up" letter. This rumor turned out to be just that; for at least this federal fiscal year, contractors can continue to expect the CSAL letter and use it to determine which establishments are most likely to get selected for a compliance review.

One of the biggest changes in the new CSAL letter is that there is no longer a limit on the number of new compliance evaluations OFCCP can conduct in a fiscal year. Under the prior administration, a rule was established that a contractor could only be scheduled for a maximum of 25 new compliance evaluations in a given fiscal year. The new CSAL letter states: "Finally, there will be no limit on the number of new compliance evaluations of your company's facilities that OFCCP will conduct during a fiscal year."

This appears to be the first major policy change under Patricia Shiu, OFCCP's new Director. It could end up being a very busy year for some contractors that have a large number of establishments that are potentially subject to a compliance evaluation. It will be important for contractors to keep track of the number of audits initiated in a fiscal year to understand how this policy change will affect enforcement.

Contractors should notify their executive offices that this scheduling letter is coming in the near future and to send to it HR/Compliance as soon as it is received.

OFCCP Makes New Personnel Assignments at National Office

According to reliable sources at the Department of Labor, the following personnel selections or assignments were made at OFCCP:

Lorenzo Harrison was selected as the Deputy Director of OFCCP. Mr. Harrison was the Acting Deputy Director and formerly the Regional Director of the Northeast and Mid-Atlantic Regions.

Patsy Blackshear has returned to her prior position as the Director of the Division of Program Operations (DPO) at the National Office of OFCCP. She was serving in the Employment Training Administration.

Bruce Bohanan was selected as the Director of the Division of Program Policy and Planning at the National Office of OFCCP. Mr. Bohanan worked in OFCCP for several years as a manager both in the Southeast Region and in the National Office of OFCCP in the Policy Division. He was working in ESA prior to his return to OFCCP.



OFCCP and the American Recovery and Reinvestment Act of 2009 (ARRA)

OFCCP began its first of three webinars on Wednesday, September 16, geared toward presenting information on the equal employment opportunity (EEO) and affirmative action (AA) provisions of Federal contracts concerning American Recovery and Reinvestment Act of 2009 (ARRA) funding of Federally assisted projects. The first webinar was a basic overview of AA obligations specifically for new Federal supply and service contractors under ARRA, and the steps those contractors must take to be in compliance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. Senior OFCCP Compliance Officers reviewed the components of AA programs found at 41CFR 60-2, what to expect from compliance evaluations, and how to receive technical assistance. As a requirement of ARRA, the Compliance Officers further explained that all covered ARRA contractors will be scheduled for full compliance evaluations, given the “heightened scrutiny of ARRA spending”. Subsequent webinars in the series are titled, “Construction Contractors: 16 Steps to Affirmative Action Compliance” and “Federal Contracting and Procurement Officers: EEO and FAR”.

Just one week prior to the first webinar in the series, OFCCP held a National ARRA Forum, where similar information on EEO and AA provisions of Federal contracts concerning ARRA funds was presented. Additionally, the agency covered specifics of ARRA in terms of OFCCP scheduling procedures and exceptions. OFCCP explained that part of its ARRA plan includes conducting 360 reviews of ARRA-funded construction contractors, and 90 reviews of ARRA-funded supply and service contractors. Specific scheduling exceptions for supply and service contactors under ARRA, include: recently reviewed contractors are excepted from ARRA review for 6 months, pre-award clearance is not required for contractor establishments reviewed within the past 2 years, and the 2-year window returns after the close of an ARRA review. In addition, OFCCP’s “25-establishment maximum” review policy for traditional reviews will not be the same for ARRA reviews; however, OFCCP mentioned that based on the information they understood regarding ARRA projects, it did not seem likely that more than 25 establishment reviews would occur within the same scheduling year (or at least would occur very rarely). ARRA-funded supply and service contractors can expect to receive an ARRA Notification Letter, in addition to the standard scheduling letter.

E-Verify Required as of September 8, 2009

The Department of Homeland Security has posted on its website that federal contractors (and subcontractors) will be required to use E Verify (Executive Order 12989) as of September 8, 2009. President Bush amended the new rule by on June 6, 2008, instructing federal agencies to require federal contractors to agree to electronically verify employment eligibility of their employees. Only federal contractors awarded a new contract after September 8, 2009 will be affected. Federal contractors will not be allowed to use E-Verify to verify current employees until after September 8, 2009. The amended Executive Order upholds the policy that the federal government does business with companies whose employees can legally work in the US. The new rule requires federal contractors agree to use E-Verify confirming employment eligibility of all current employees as well as all people that were hired during the contract term.

DOL Publishes Proposed Rule Implementing Executive Order 13496

More than six months after President Obama signed Executive Order 13496, the U.S. Department of Labor today published a proposed regulation describing the content of the notice required by the Order's contract clause. The DOL has requested that comments regarding the proposed rule be received no later than September 2, 2009.

According to the proposed rule, the required notice will be included in all Federal contracts, except those involving purchases below the simplified acquisition threshold (currently $100,000) and contracts resulting from solicitations issued prior to the effective date of the final rule. Subcontracts necessary to the performance of the prime contract that fall below the simplified acquisition threshold, however, are not exempted and must include the notice.

The requirement does not apply to employers subject to the Railway Labor Act or employing workers as agricultural laborers, but in a significant change from the previous E.O. 13201 ("Beck") requirements, it does apply to employers across the country (including states with right-to-work laws).

The notice includes details about the rights of employees under the NLRA, including:

- Forming a union and participating in various union-related activities;

- Choosing not to join a union or participate in such activities;

- Protection from illegal actions by an employer as a result of union activities;

- Protection from illegal actions by a union based on their support of the union.

The notice also includes detailed instructions for contacting the NLRB if employees feel that their rights have been violated. The proposed rule states that the notice is to be included verbatim in a contract, subcontract, or purchase order, rather than incorporated by reference only (as was permitted for the Beck requirement).


Required posters will be printed by the DOL and made available through government contracting agencies, OLMS, OFCCP, and by download from the OLMS web site.

If notices are provided to employees electronically, contractors must display a link to the DOL’s web page that contains the full text of the notice. Also, the link itself must include the following text on the contractor’s web site:

RIGHTS OF EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT

‘‘It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection.’’

OFCCP may enforce the Order through either a review specifically targeting E.O. 13496 compliance only, or during the course of a regular compliance evaluation, or in response to a complaint. No specifics were given regarding the selection of contractors for an E.O. 13496-only review.

Employees of covered contractors can file written complaints that the contractor has failed to comply with the Order to either OLMS or OFCCP. Complaints will be investigated by OFCCP, and the DOL estimates that they will receive approximately 50 such complaints per year.

If non-compliance is not resolved through conciliation, OFCCP must refer the case to OLMS, who then may take it to the Solicitor of Labor for enforcement. The ultimate penalties for non-compliance can include cancellation or suspension of current contracts, or debarment from future contracts including extension of existing contracts.

A potentially controversial portion of the proposed rule states that, if the DOL finds a subcontractor is not in compliance with the Order, the Secretary of Labor may direct the contractor to require the subcontractor to come into compliance. If this results in the contractor becoming involved in litigation with the subcontractor, the contractor may request that the United States enter the litigation. In cases where the contractor does not take the action directed by the Secretary, the DOL can enforce against the contractor as though they were out of compliance with the Order.

The DOL estimates that each contractor will spend 3.5 hours per year to comply with this rule, at an average annual cost of $108.57.

Patricia A. Shiu Named Head of OFCCP

Patricia A. Shiu, currently Vice President of Programs at the Legal Aid Society-Employment Law Center, has been named Director of the OFCCP. Shiu has dedicated her twenty-five year career to strengthening and enforcing the rights of women, minorities, persons with disabilities, and low-wage workers. Shiu is also the Director of the Legal Aid Society’s Work and Family Project and advocated for the passage of California’s Family Rights Act and its regulations. Shiu was appointed to the Civil Rights Reviewing Authority for the Department of Education in 1993 by Secretary Richard Riley. She is a former member of the Executive Board of the National Employment Lawyers Association (NELA) and served as one of its Vice Presidents. Shiu serves on the Board of Directors of The Employee Rights Advocacy Institute For Law & Policy, NELA’s related charitable and educational public interest organization. She is a graduate of the University of San Francisco School of Law.