PRESS RELEASE – US DEPARTMENT OF LABOR ANNOUNCES A FINAL RULE UPDATING ITS EQUAL EMPLOYMENT OPPORTUNITY IN APPRENTICESHIP REGULATIONS

The U.S. Department of Labor has updated its Equal Employment Opportunity Apprenticeship Regulations. Click here to learn more.

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This Just In – VEVRAA Hiring Benchmark Released

The annual VEVRAA hiring benchmark has been released and it is 6.7%. Click here to learn more.

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The “Blacklisting” Rule is No More

In a move lauded by federal contractors, President Donald Trump signed a resolution into law today that blocks the “blacklisting” rule from taking effect.  The rule would have required federal contractors to disclose allegations of misconduct, whether or not those allegations were proven or dismissed, going back for three years.  Congress invoked the Congressional Review Act to block the rule before it took effect and President Trump’s actions today cemented the rule’s fate.

It has been targeted by contractors and Congress ever since it was enacted by President Obama by executive order.  Many critics cited the onerous reporting requirements and obligations which would discourage smaller businesses from competing for federal contracts.  Critics also argued that there are sufficient measures already in place to ensure fair pay and safe work environments under existing laws making the blacklisting rule an unnecessary and duplicative regulation.

Members of Congress were quick to hail the action as part of President Trump’s overall plan to reducing red tape and limiting the power of unelected officials.  Fact Sheet on the resolution.

For more information, contact Ahmed Younies at 714-884-4610 or ayounies@hrunlimitedinc.com.

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Press Release – U.S. Dept. of Labor Announces Availability of $66M in Grants

The U.S. Department of Labor has announced the availability of $66 million in grants to improve employment opportunities for justice-involved individuals. Click here to learn more.

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This Just In – OFCCP Just Mailed Scheduling Letters to Selected Federal Contractors To Be Audited

At the end of last week, the OFCCP began mailing Scheduling letters to selected contractors.  For Federal Contractors who received CSALs, be prepared.  Since Compliance Officers’ case load  is more manageable, expect more comprehensive and longer audits.

Remember! The OFCCP itself addressed on its website that A contractor establishment should not be scheduled for another compliance evaluation during the 24–month period following the date on which the prior review was closed.  The OFCCP further advised that the establishment’s representative should call the local OFCCP office which issued the scheduling letter to inform them of the pending 24-month period.  Click here for the OFCCP “FAQs”, and scroll down to the last question.

If you receive a letter and would like assistance in preparing for the Scheduling Letter or Desk Audit submission, please feel free to contact Ahmed Younies at (800) 708-3655 extension 703, ayounies@hrunlimitedinc.com or Chat with one of our representatives.

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Best Practices for Making Job Applications Accessible to Individuals with Disabilities

Applying for employment is nerve-wracking enough without a disability.  Try to imagine, then, if you had some form of disability that made it difficult to even navigate the on-line application process.  What if you are blind but the application has no text-to-speech capability?  Or, the application has a time limit that shuts you out after 60 minutes which is not enough time for you to read and respond since you are dyslexic?  While technology has made so much of hiring easier and accessible, it still lags behind in terms of accommodations for those with certain disabilities.

Accommodation in hiring, not just in employment, is required by the Americans with Disabilities Act (ADA).  The ADA prohibits discrimination against a qualified applicant with a disability by employers with 15 or more employees as well as government (both state and local) employers.  An individual with a disability, as defined by the ADA, is a person who has an impairment, either mental or physical, that “substantially limits a major life activity”, has a history or record of a substantially limiting impairment, or someone who is regarded by their employer as having such a substantially limiting impairment.

Such an applicant – an individual with a disability as defined under the ADA – is protected by the ADA in the hiring process, not just employment, provided the individual is able to meet the employer’s requirements for the position.  They must have the requisite training, education, licensure, etc., as required by the employer as a condition of employment.  Those individuals with disabilities who do meet this requirement are then eligible for accommodations, and if they require them, should be provided with them by the prospective employer.

While accommodation requirements for hiring are not new, the internet has changed the way in which most people now apply for positions.  And, unfortunately, the internet is not always accessible to those with disabilities, particularly those with blindness, paralysis, arthritis, low vision, or dyslexia.

Many large employers, including the federal government, are addressing this somewhat neglected area. Specifically, the Office of Federal Contract Compliance Programs (OFCCP) has already implemented rules designed to address the need for contractors to be accessible not just in employment, but in hiring as well.  Per the ADA and the Vietnam Era Veterans’ Readjustment Assistant Act (VEVRAA), federal contractors are required to make online applications for employment accessible to those applicants who are qualified and have disabilities or are disabled veterans.

For example, while many systems are somewhat accessible to disabled users and those users may also use adaptive software for their own purposes, an online system may still not be fully accessible to them.  The adaptive software may not correctly display graphics or a webpage may not work at all with adaptive software.  OFCCP encourages, but does not require, contractors to get around this problem by using “universal design” techniques in their website and application design.  This is particularly crucial and important if the contractor only uses on-line applications for employment.  Even then, the contractor must make alternative avenues for filling applications available to individuals with disabilities if they are still unable to apply on-line.

As for what not to do, do not establish a separate application system to be used solely by individuals with a disability.  This would constitute an illegal inquiry prior to employment as to the disability status of the applicant.  It could also be seen as a form of segregation.  This prohibition is different from the requirement that the employer offer an alternative method of application since this avenue is offered in addition to the on-line form and does not seek to isolate disabled applicants.

On the what to do, do provide additional accommodations to applicants such as offering information about job vacancies in formats that are accessible such as braille, or using TDD; and, allowing time extensions for applications that are timed for those with cognitive difficulties.

Do incorporate interoperability in your application system such that it will work with an applicant’s adaptive technology.  Do periodically evaluate and audit your hiring process to ensure that you are providing opportunities to individuals with disabilities, including in the hiring process and respect to online systems.

A vibrant and skilled applicant pool is waiting but may need some additional help to find their way to you.  Making your on-line application systems accessible to these individuals who may also have disabilities can get you access to these vibrant and skilled workers.

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Pressure Mounts on Feds to Cut Rule Requiring Pay Data

Last month, Victoria Lipnic, interim Chair of the Equal Employment Opportunity Commission (EEOC) expressed her opinion that the revisions to the EEO-1 form requiring disclosure of pay data from employers should be re-evaluated.  Her statement fell short of advocating outright repeal, mainly because Democrats still have a majority of the seats on the Commission.  Still, it sent a shot across the bow and gave a possible hint as to what the EEOC under the Trump Administration might do with this particularly controversial revision.

Now, the U.S. Chamber of Commerce has come out in favor of eliminating the rule or delaying its implementation by way of petitioning the Office of Management and Budget (OMB) to rescind its approval of the rule. The Chamber recently sent a letter to John Mulvaney, the director of OMB, which oversees and approves administrative rules for all federal agencies, requesting the rescission or at least review, which would delay implementation of the rule.

The rule has never been popular with the business sector.  At its core, it requires employers with 100 or more employees to report summary pay data, specifically what it pays its employees categorized by gender, ethnicity and race as part of the annual Employer Information Report or EEO-1.  The stated purpose of the data collection is to allow the EEOC greater information to use to investigate pay discrimination and wage gaps.  The information provided would not include individual pay, salaries, or any information that could identify a worker personally.

Lipnic, then as a commissioner, voted against its adoption when it was first introduced.  She was out-voted by the Democratic majority on the board and the rule was approved with a deadline from September 30, 2016, until March 31, 2018-to prepare for this change.  Given the due date which is almost exactly one year away, the pressure on the Trump Administration to make a decision about the fate of this rule is mounting because businesses will need to start preparing for the change by obtaining new software, hiring staff, and making other expenditures to become compliant on the deadline.

Keeping these deadlines in mind, the Chamber in its petition to OMB to rescind the rules, pointed out numerous flaws that it had identified in the program that it claims OMB approved in error.  Specifically, the Chamber argued that the EEOC failed to meet it regulatory burden under the OMB’s rules to show that the collection of the data would be useful or have any utility in furthering the EEOC’s directive of fighting pay discrimination.

Further, the Chamber argued, the EEOC failed to adequately disclose the costs and burdens the new reporting requirement would put on employers.  The Chamber argued that the costs and burdens were far higher than those estimated by the EEOC and argued that employers could easily be required to collectively spend upwards of $400 million each year to provide the data.

The Chamber urged OMB to see the error of its ways and pull back the approved regulations, preferably sooner rather than later, to at least hold them in abeyance while the Trump Administration decides how it wants to proceed.  Presumably, the Chamber is also working the Administration directly to make some decision as to the immediate fate of the rule.

The Chamber’s attempt to kill the rules through the OMB rather than the EEOC can be explained by the fact that as of now, the EEOC’s board is still made up of a majority of Democrats, all of whom voted for the rule revision.  It is very unlikely that they would change their mind now, meaning Lipnic and the Administration will have to wait them out until their terms expire.  This will not happen until later this year, which may be too late for some companies who would have already begun to make investments to comply.

For her part, Lipnic recently stated that she was not surprised that the rule’s burden was being reviewed and questioned by stakeholders.  She also stated that she was sure that OMB was going to give the matter a full review.

For more information, contact Ahmed Younies at 714-884-4610 or ayounies@hrunlimitedinc.com.

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OFCCP Sends Clear Message with Letters that Audits Will Start Soon

With the new administration still getting its bearings, there was naturally some curiosity as to whether and when the interim director of the Office of Federal Contract Compliance Programs (OFCCP) would continue with issuing Courtesy Scheduling Announcement Letters (CSALs).  The wait for an answer is over as of February 21, 2017, when CSALs signed by interim Director Tom Dowd were sent to the “Human Resources Director” of selected contractors.

CSALs are issued to federal contractors who have been chosen through the national office in Washington, D.C. from the Federal Contractor Selection System (FCSS) using neutral but undisclosed criteria.  They are designed to give the contractor advanced notice of an upcoming audit of the contractor’s compliance.  OFCCP sends out CSALs for several reasons including to allow contractors time to gather their documentation and support for the audit, to conduct self-audits to identify problem areas before OFCCP gets involved, and to take advantage of compliance assistance offered by OFCCP.  Be aware! The OFCCP itself addressed on its website that A contractor establishment should not be scheduled for another compliance evaluation during the 24–month period following the date on which the prior review was closed.  The OFCCP further advised that the establishment’s representative should call the local OFCCP office which issued the scheduling letter to inform them of the pending 24-month period.  Click here for the OFCCP “FAQs”, and scroll down to the last question.

Under the Obama Administration, the last round of CSALs was issued several years ago in 2014.  This is not as surprising considering that these are courtesy notices and not required by law.  The lag of at least two years since the last letters also fueled much of the conjecture as to whether the new administration would continue with the tradition.

Since CSALs are a courtesy, not a formal notice, it is not necessarily the case that a contractor that receives a CSAL will actually be audited.  Similarly, firms that are not issued CSALs may still be audited.  Thus, perhaps their broadest purpose is to put all contractors on alert that OFCCP audits are on the horizon and that while some have been identified, all other contractors are not necessarily going to be overlooked.

Even those firms that are on the list and receive CSALs, there is still a great deal of uncertainty as to the type and scope of the potential audit.  For example, OFCCP conducts audits based on contract award notices, directed reviews, conciliation agreements or individual complaints, or as part of the larger agency Corporate Management Compliance Evaluation (CMCE) or Functional Affirmative Action Plan (FAAP).  Again, therefore, the fact that notices are going out is alone enough to require contractors to begin to review their Affirmative Acton Plans (AAPs), particularly with respect to requirements related to individuals with disabilities and veterans.

As of now, the actual list of contractors – and thus the scope of the audit net – is not known, and therefore, at a bare minimum, all federal contractors should be on the lookout for a CSAL.  For those contractors who have a designated point of contact on the scheduling list that is issued in the scheduling cycle, the letter will likely be addressed to that person.  For all other contractors, it will likely be directed to the generic “Human Resources Director”.  Regardless of the addressee, however, any employees who handle the mail or correspondence should be advised to be on the lookout for the letter so that they can route it to the appropriate person when it comes in.

It is also important to note that the OFCCP may not necessarily send the letter to the headquarters of a contractor.  Rather, CSALs are sent to any establishment on the scheduling list.  If the establishment is not the same as the headquarters, it is the responsibility of the establishment to forward the letter to the headquarters.  Thus, explicit instructions for establishments that may be part of a larger corporation to know to look for CSALs and then to send them on to headquarters is warranted.

Similarly, all contractors should use the time between now and when they may receive the CSAL or a formal audit notice to get prepared.  This means reviewing the contractor’s AAP, identifying potential problem areas, and marshalling resources to be on stand-by in the event of an audit.  This is beneficial even if the contractor does not end up being the subject of an audit as it will put the contractor in a better position for compliance going forward.

We will update as we get more information about the scope and reach of the audits.

For more information, contact Ahmed Younies at 714-884-4610 or ayounies@hrunlimitedinc.com.

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In With the New, But Not Quite Out With the Old

A few weeks after his inauguration in January, Donald Trump appointed the only Republican Commissioner at the Equal Employment Opportunity Commission, Victoria Lipnic, as the acting chair of the Commission.  The question on the minds of many employers and human resource professionals, however, was not who was going to be appointed, but whether the new administration will also mean a new enforcement agenda.  According to Lipnic, the short answer is, “not really.”

At a recent panel discussion, Lipnic stated that while the EEOC will uphold the core mission of the EEOC by pursuing enforcement of the country’s anti-discrimination laws, the focus will shift more towards collaboration with employers to further bolster the Trump Administration’s commitment to job creation and growth.

Of course, how this actually plays out rests a great deal on when the Commission takes action.  Currently, Lipnic is the only Republican Commissioner.  However, with one current vacancy to be filled and another that will open later this year when Jenny Wang’s term expires, the swing from Democrat to Republican on the five-member board will be complete later this year.  Once Lipnic, or whoever is appointed as the permanent chair, has the majority in place, the fireworks may well begin.

The type and ferocity of those fireworks remains to be seen.  The first salvo was launched with Lipnic’s comments on the Strategic Enforcement Plan the Commission adopted in October 2016 for fiscal years 2017-2021.  She indicated that the priorities outlined in the SEP will be retained … for the most part.  Of those enforcement priorities, she did specifically single out systemic initiatives for review.  While systemic initiatives will continue, Lipnic will call for the Commission to seriously evaluate the resources that are being devoted to them.  In contrast, Lipnic opined that it was very important for the Commission to continue to pursue individual cases of discrimination.

For those searching the tea leaves for the true future of enforcement, Lipnic’s comments may not offer much guidance one way or the other.  This is understandable since the new administration is barely three weeks old and she is the acting chair, meaning she could be replaced in a few months.  Given her history of working with Democratic Commissioners, Lipnic may not be Trump’s first choice to head the Commission for the long run.  He may instead seek a Republican more aligned with his pro-business stance.

Lipnic did, however, make her Republic credibility clear by pointing out her prior disagreements with Democratic Commissioners over new changes to the EEO-1 form.  Specifically, she was against the requirement that employers with 100 or more employees also disclose wage data in addition to gender, race, and ethnicity.  She identified this regulation as a classic example of what the Trump Administration was seeking to have reviewed and reconsidered, at a minimum.

Similarly, she was not in favor of allowing the EEOC general counsel – another position that is to be filled – to file suit in district court absent the vote of the Commissioners. She believes that the Commissioners should have some greater oversight over this litigation.  Whether the EEO-1 and general counsel rules will fall by the wayside remains to be seen.

However, it does appear that Lipnic is attempting to not stir up the waters just yet, but is giving enough hints to mollify both employers and workers.  While this is not the modus operandi of the Trump Administration, it is a reflection of her long-standing relationship with the EEOC and her current temporary status.  Stay tuned for further updates!

For more information, contact Ahmed Younies at 714-884-4610 or ayounies@hrunlimitedinc.com.

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LexisNexis Pay Discrimination Identified in OFCCP Investigations

LexisNexis Risk Solutions will pay over $1.2 million in back pay and interest and provide additional relief to resolve allegations of systemic pay discrimination against women at its facilities in Alpharetta, Georgia, and Boca Raton, Florida.

LexisNexis provides computer-assisted legal and business research and risk management services. During fiscal years 2015 and 2016, the company had millions of dollars in federal contracts with the U.S. Departments of Homeland Security, Justice, Transportation and Labor, and the Office of Personnel Management and the General Services Administration.

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Southern Glazer’s Wine and Spirits (LA) Charged by the OFCCP for Hiring Discrimination

A routine investigation by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs found that Southern Glazer’s Wine and Spirits of Louisiana, LLC, systemically discriminated against black applicants in its hiring practices at its St. Rose warehouse facility. The company has entered into a consent decree to resolve the department’s claims.

An OFCCP compliance review found that, from January 2008 to January 2009, the federal contractor discriminated against 467 black applicants for warehouse worker positions in violation of Executive Order 11246. OFCCP also found that the company failed to keep complete and accurate employment records and failed to evaluate its selection procedures as required by law.

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OFCCP Files Lawsuit Against Google Inc. for Compensation Data

The U.S. Department of Labor has filed a lawsuit to require Google Inc. to provide requested compensation data and documents for the multinational company’s Mountain View headquarters as part of a routine compliance evaluation.

The Office of Federal Contract Compliance Programs asked the technology giant to submit information in September 2015 about its equal opportunity program and to provide supporting documents as part of a scheduled compliance review. As a federal contractor, Google must agree to permit the federal government to inspect and copy records and information relevant to its compliance with the equal employment laws administered by OFCCP.

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For more information, contact Ahmed Younies at 714-884-4610 or ayounies@hrunlimitedinc.com.

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How Effective is the OFCCP? Part IV – The Conclusion

Happy New Year! We start 2017 wrapping up our series on the Government Accountability Office (GAO)’s report of the OFCCP’s effectiveness in enforcing Affirmative Action laws and regulations. You may recall that the GAO in its recent report found the OFCCP to be exhibiting five areas of weakness. In the previous parts, we explored the first three areas. We will now discuss the last two. Since you likely have a lot of work to do upon return from your holiday celebrations, let’s not waste any more time. Here they are:

Reported Inconsistencies in Compliance Evaluations May Be Exacerbated by Lack of Training

According to the GAO, Compliance Officers are not receiving the necessary training to obtain, much less maintain, the skills necessary to conduct Compliance Evaluations. This too would tend to lead to inconsistent practices across offices. For example, the OFCCP in 2013 focused its training efforts on recent regulatory changes. OFCCP officials acknowledge that since 2013 they have conducted 23 staff webinars focused on these regulatory changes. The result: Compliance Officers lack access to essential, generalized training and knowledge that enable them to properly address many of the issues that arise during Compliance Evaluations. In fact, the GAO states in its report, that “compliance officers we spoke to in one district office were concerned that the lack of ongoing professional training limited their ability to correctly and consistently conduct compliance evaluations”.

What if anything has the OFCCP done to address this issue? In some offices, managers paired Compliance Officers with less expertise in some areas with more experienced Compliance Officers. While that is certainly a reasonable and sensitive approach, there is one glaring flaw here, too: This approach only occurs in some offices, it lacks the centralized, holistic effort needed, and therefore cannot address the reported inconsistencies in the manner that is truly necessary and appropriate. The GAO also pointed out that the training being given fails to address employees’ career development concerns, as well as needed skill-specific training.

In addition, the training the OFCCP has provided has not been timely.   Agency officials stated that “budget constraints” have made providing timely training difficult. (This statement is curious in light of the fact that the OFCCP in the last few years probably experienced the largest budget allocations ever.) In half the regions the GAO visited, managers admitted that new Compliance Officers did not receive training. In one case, a Compliance Officer stated that s/he had been employed with the OFCCP for 8 or more months before receiving formal training. Compliance Officers in one district office specifically complained they felt unprepared to do their jobs.

Such a glaring deficiency leaves little wonder why the OFCCP’s efforts are at best inconsistent, and, in turn, why its effectiveness may be compromised. The GAO’s recommendation in this regard should therefore come as no surprise:

Provide timely and uniform training to new staff, as well as provide continuing training opportunities to assist compliance officers in maintaining a level of competence to help ensure quality and consistency of evaluations across regions and district offices.

Most Violations Are Resolved Through Conciliation Agreements

According to the GAO, between Fiscal Years 2010 and 2015, the OFCCP resolved 99 percent of its violations through Conciliation Agreements, in which the contractor agrees to take certain remedial actions to address the violation(s) in question.  Those remedies may include injunctive-type relief, where a contractor is required to either refrain from certain practices deemed discriminatory or to implement certain measures, such as an applicant tracking system. Remedies may also include offering jobs to certain rejected applicants, back pay and other money damages.

Is there anything wrong with resolving violations through Conciliation Agreements? Inherently, no. The problem is if that is effectively the only remedy, then many cases will fall through the cracks. For example, what happens if the contractor does not live up to the commitments it made in a Conciliation Agreement? Compliance Officers are supposed to monitor and report progress in compliance with the Conciliation Agreement. When a contractor does not comply with a Conciliation Agreement, the OFCCP may begin an investigation. The GAO notes that “since 2010, OFCCP has referred a small number of cases to the DOL Office of the Solicitor for enforcement through administrative enforcement proceedings… Additionally, OFCCP may refer a case to the Office of the Solicitor in certain other circumstances, such as when an establishment has denied compliance officers access to information or their facilities. When referred a case, the Office of the Solicitor generally reviews the case and may take further action through administrative enforcement procedures.”

What happens then? Administrative sanctions can be imposed, up to and including debarment, where a contractor loses their contract and is ineligible to receive future federal government contracts. However, even the OFCCP admits that debarment is rare. In fact, on average, debarment happened less than once per fiscal year since 2010.  The rarity of this remedy is reflective not of effective enforcement efforts by the OFCCP, but the OFCCP’s reluctance to use it. Why is that? According to the OFCCP, “because contractors who are debarred are no longer under OFCCP’s jurisdiction and not subject to the worker protection requirements the agency oversees.” Here too, it is easy to see where cases of either discrimination or other violations of affirmative action laws and regulations are falling through the cracks.

Oddly enough, the GAO’s remaining recommendations do not address this particular issue. It would seem, however, that the OFCCP needs to re-visit both its methods and its use of available methods. While it did not specifically name these as weaknesses in enforcement efforts, the GAO did include these last two recommendations in its report:

• Review outreach and compliance assistance efforts and identify options for improving information provided to federal contractors and workers to enhance their understanding of nondiscrimination and affirmative action requirements to ensure equal employment opportunities for protected workers.

• Assess existing contractor guidance for clarity to ensure that contractors have information that helps them better understand their responsibilities regarding nondiscrimination and affirmative action requirements to ensure equal employment opportunities for protected workers.

These last two recommendations are the only ones directed at how to work with contractors.

So, there you have it. According to the GAO, the OFCCP needs to take steps to ensure consistency in its offices. That’s the nutshell version. You can read our previous two posts to get a little more in depth and if you want more details, you can access the GAO report here.

Suppose you don’t want to do any of that? What can you take away from this three-part series, and the GAO findings? Here’s what you should not do. You should not assume that because the OFCCP has been found by the GAO to have weaknesses in its effectiveness that you no longer need to focus on your affirmative action obligations as a federal contractor. As you well know from our other posts, once you are selected for a Compliance Evaluation, you will be subject to scrutiny, if not sanctions, if the OFCCP finds violations. In our opinion, it is not worth the risk. So either keep doing what you’re doing, or reach out to us with any questions.

For more information, contact Ahmed Younies at 714-884-4610 or ayounies@hrunlimitedinc.com.

 

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