EEOC Amends Compliance Manual to Clarify Ledbetter Timeliness Issues

The U.S. Equal Employment Opportunity Commission has revised its Compliance Manual to comply with the recently enacted Lilly Ledbetter Fair Pay Act. In the manual the Commission states:

“In August 2009, the EEOC issued a revision of the “Threshold Issues” Compliance Manual section to address the time limitations for filing charges alleging compensation discrimination pursuant to the Lilly Ledbetter Fair Pay Act of 2009. The time limitations for filing compensation discrimination charges is addressed in the new subsection § 2-IV C.4, “Compensation Discrimination.”

In the Compensation section, the Commission writes:

4. Compensation Discrimination
An aggrieved individual can bring a charge up to 180/300 days after receiving compensation that is affected by a discriminatory compensation decision or other discriminatory practice, regardless of when the discrimination began. (Emphasis added.) If a charge alleges compensation discrimination under Title VII, the ADA, the Rehabilitation Act, or the ADEA,(198) the filing period begins when any of the following occurs: 1) the employer adopts a discriminatory compensation decision or other discriminatory practice affecting compensation; 2) the charging party becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or 3) the charging party’s compensation is affected by application of a discriminatory compensation decision or other discriminatory practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such discriminatory decision or practice.(199)
Payment of compensation is actionable if it is affected by either a discriminatory compensation decision or some other discriminatory practice. For example, a charging party may challenge within 180/300 days any paycheck that is lower than it otherwise would be because of the discriminatory denial of a career ladder promotion. In a career ladder promotion, an individual is promoted to a higher pay and/or grade level based on whether that individual meets certain predetermined performance, time-in-grade, or other criteria.
Example – After working for the Respondent for nearly 10 years as a production supervisor, CP learns she is being paid less than the other four production supervisors in her department, who are all men. Immediately after learning about the pay discrepancy, CP files an EEOC charge alleging sex-based wage discrimination in violation of Title VII. The investigation shows that CP generally received lower pay raises than her male counterparts as the result of lower performance ratings, which CP alleges to have been discriminatory. Although these performance ratings and related pay raises all occurred more than 300 days before CP filed her charge, they affected her pay within the filing period. Therefore, CP’s pay discrimination charge is timely.
These time frames apply to all forms of compensation, including the payment of pension benefits. However, because the congressional findings state that “[n]othing in [the Lilly Ledbetter Fair Pay Act] is intended to change current law treatment of when pension distributions are considered paid,”(200) it may be determined that pension benefits are considered paid “upon entering retirement and not upon issuance of each annuity check. ”(201) Therefore, to avoid potential timeliness issues, an individual who is considering challenging his or her pension benefits is strongly encouraged to file a charge within 180/300 days after retirement.

http://www.eeoc.gov/policy/docs/threshold.html#2-IV-C-4

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |

Survey Result with regard to Applicant Tracking Systems (ATS)

By Nina Le-Tse

BCG Institute for Workforce Development (BCGi) sponsored a survey to compile the perceived success of diversity initiatives across organizations of all sizes. As a model for this survey, BCGi used the recommendations outlined in the articles written by Dan Biddle, PhD and Patrick Nooren, PhD, titled, Diversifying Your Organization: How to Actually Make it Happen in EEO Insight. The survey was circulated in January 2009.

One of the questions asked whether respondents evaluated their Applicant Tracking Systems (ATS) to ensure that it is capable of collecting/retaining the required EEO information. The results indicated that a vast majority of contractors, regardless of company size, claim to have evaluated their ATS to ensure it is capable of collecting proper information to address Equal Employment Opportunity (EEO) data requirements (e.g., disposition codes). ). As a consultant who have been in this field for more than six (6) years, these results are surprising because in the event of an audit, most contractors are unable to identify the step where each applicant fell out of the selection process (e.g., did not meet minimum qualifications, passed or failed phone interview, declined offer, etc.). Tracking applicants through the selection process is not an easy task. The OFCCP is aware of the difficulty of collecting and retaining proper applicant data, and this unfortunately makes contractors vulnerable to recordkeeping violations during audits. At the 2009 National Industry Liaison Group Conference in Atlanta, Georgia, the OFCCP noted that recordkeeping is still the number one violation issued during compliance reviews. In fact, during the 2008 fiscal year, Office of Federal Contractor Compliance Programs (OFCCP) collected $67,510,982 in back pay, salary, and benefits from federal contractors for systemic discrimination. As always, the OFCCP can rely on an “adverse inference” if proper applicant information is not collected or retained Given the current focus of the OFCCP and other federal enforcement agencies on adverse impact in hiring, proper design of applicant tracking systems is vital.
It is an unfortunate situation when employers are unable to defend themselves in the event of an audit or litigation simply because they lack the data to properly do so. If the goal is to create a diversified workforce, then employers need reliable reports that can direct their efforts towards meeting this goal. Outside using the appropriate metrics to create meaningful reports, correct and reliable data should be the first and foremost in any employer’s agenda. It’s not just about the right statistical process; it’s about the right data.

Below are some of the recommendations that will help employers properly collect and retain applicant data and consequently, impact their diversity initiatives:
• Configure your applicant tracking system to collect and retain all necessary information.
• Configure your applicant tracking system to collect and retain a history of disposition codes for each applicant, or
o Develop disposition codes to identify where each applicant is within the process and where each applicant has fallen out and why
• Implement a requisition-based system to more easily link applicants to hires
• Train on the proper usage of the system and regularly evaluate usage of the system
• If at all possible, funnel the steps in the recruitment process to force users of the ATS to follow the designated steps and eliminate manual decisions and selections wherever possible
• Proactively run adverse impact analyses (at least on the high-volume positions) and inform those with the ability to affect change
• Validate all steps in the process

To view the full results of the survey as well as the article, Diversifying Your Organization: How to Actually Make it Happen, please visit www.EEOInsight.com.

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |

E-Verify Goes Live

The E-Verify program is now active as of September 8, 2009.

U.S. District Court Judge Alexander Williams, Jr., of Maryland, rejected an 11th-hour-effort last week by the U.S. Chamber of Commerce and other business groups to delay the mandate while a federal appeal is pending.

Under the mandate, a clause requiring contractors and subcontractors to use the government’s E-Verify system will be written into every new or renewed government contract started on Tuesday, September 8th. It will also be written into every new work order issued under existing contracts, officials say. It will be up to government agencies that issue the contracts to enforce the mandate.

Once a contractor is operating under the new clause, it will have to check the legal eligibility of every employee working on a government project through a secure website. The E-Verify system compares data entered by employers with records maintained in Social Security Administration and immigration databases.

The E-Verify website is here:

www.dhs.gov/e-verify

Also, on the E-Verify website there is a webinar series that contractors can sign up for:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9085bd181e09d110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD

And here are the E-Verify FAQ’s:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextchannel=534bbd181e09d110VgnVCM1000004718190aRCRD&vgnextoid=cb2a535e0869d110VgnVCM1000004718190aRCRD

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |

Job Group Assignment Can Have a Major Impact on Analysis Results

Job Group Assignment Can Have a Major Impact on Analysis Results
by Dao Vang, EEO Analyst

In the EEO industry there are many different types of companies, and with such diverse organizations it is expected that the methods they employ to approach affirmative action can be very different. While many place great importance on the creation and implementation of their Affirmative Action Plans, it is equally common for AAP development to become an annual exercise that has little impact on the organization. Unfortunately, some contractors only take their AAP and its corresponding obligations seriously when faced with an OFCCP audit.

While a lack of interest in creating and implementing proper AAPs has many drawbacks, one major issue is the creation of defensible job groups. We will call upon an example where a company (let’s call them Company XYZ) had been using the same AAP job groups for years. Company XYZ was aware that their AAP job groups needed significant revisions but it had yet to become a priority. Although as consultants we had pleaded with Company XYZ to work with us on redefining the job groups, and the client intended to make the necessary changes, they unfortunately did not make the time or provide the resources to make reassigning jobs a priority. As a result the project remained on the back burner for too long. The same concern had been revisited and mentioned by BCG each year, however, the restructuring of the job groups remained a “not so important task” from the client’s point of view. Not surprisingly, the excuses continued and the convenience of not making any changes won out for several years. Therefore, Company XYZ knowingly continued to use flawed job groups for their AAPs.

Then along came the day when Company XYZ received a 30-day scheduling letter from the OFCCP. Naturally, several of their job groups had adverse impact in hiring against females and/or minorities and lo-and-behold the overhaul of job group assignments suddenly became top priority. The rushed review confirmed two issues that the consultant already suspected: 1) some jobs were inappropriately grouped together (for example, technical and administrative professional jobs are in the same job group); and 2) there are job groups that could be split into more appropriate groups without sacrificing appropriate sample size.

Needless to say, when more appropriate job groups were created, the number of potential problem areas dropped dramatically. Unfortunately, the lesson learned was that the undertaking of job reassignments during a desk audit caused tremendous stress for everyone. In order to accommodate the newly created (but more appropriate) job groups, the current AAP had to be re-created, the previous year’s availability and placement goals reports were also re-created, and new adverse impact analyses had to be conducted — all within the 30-day allotted period for the AAP submission.

From the consultant’s point of view, AAPs should be used as a diagnostic tool to determine whether potential problem areas exist in an organization. It should be obvious that plan results are only as good as the job title to job group assignments that they are based upon. Having pointed that out, here is some advice when creating AAP job groups:

o The jobs in each job group should have similar content, opportunities, wages, level, and responsibilities
o Job Groups should not reflect more than one EEO Category
o There is no minimum sample size requirement for each job group. However, there should be enough individuals in each job group to yield meaningful results
o For contractors with 150 employees or less, the regulations state that they can use EE0-1 Categories to as job groups (http://www.dol.gov/esa/ofccp/scaap.htm)
o Creating and dividing larger job groups or EEO categories into sub job groups are common. Consider creating sub job group by skill level or/and specialty (e.g., lower level managers, mid level managers, and upper level managers).

If you have any questions about creating job groups please e-mail BCG at staff@biddle.com

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |

Utilizing important resources for EEO/AA Compliance

For many years, Federal contractors had limited avenues for getting answers to detailed questions associated with Affirmative Action and EEO compliance. While contractors could take the time to call the OFCCP or EEOC directly, it could be cumbersome to chase down a direct answer to any question that went beyond the text in the regulations. Contractors would also call on the various consultants and attorneys in the industry to get their interpretation of the regulations, but even with their vast expertise, those opinions might not be consistent from group to group and more importantly, they may not be in sync with the governments interpretation.

Having talked about how things used to be, BCG wants to make sure that contractors and proactive companies across the country are aware of new channels of information that are now available to them. One very important area of information that is now available to the public is the Office of Federal Contractor Compliance Programs (OFCCP) website. While that may seem like common knowledge because everyone has a website and the government may not be known for providing real insight into their expectations, the current OFCCP website has evolved into a fountain of useful and in many cases even current information. While any website is far from perfect, there are certain areas of the current OFCCP site that are very useful and should be bookmarked and read by everyone from contractors to consultants. BCG will be providing a series of blogs to identify certain areas of the website that people should pay attention to.

Today’s section is the Frequently Asked Questions (FAQ’s) portion of the site. With the dramatic amount of change that has occurred in the OFCCP and Affirmative Action Planning requirements in the last 10 years comes a tremendous number of questions. The OFCCP has posted a detailed FAQ site that contains answers to hundreds of questions from the most basic to the very advanced. The FAQ’s are separated by topic and they provide in-depth answers to the following topics:

* ADA Amendments Act
* Corporate Scheduling Announcement Letter (CSAL)
* The Good-Faith Initiative for Veterans Employment (G-FIVE) Initiative
* Accessibility of Online Application Systems
* Electronic Recordkeeping Systems
* Jobs for Veterans Act (JVA)
* For Employees
* For Employers
* Compensation Standards
* Corporate Management Compliance Evaluation
* Federal Contractor Selection System (FCSS)
* Functional Affirmative Action Program (FAAP)
* Internet Applicant
* Jurisdiction
* Policy/Regulatory Issues

The OFCCP updates these questions periodically and BCG has found them to be an invaluable resource when assisting clients with understanding the governments expectations. Visitors can read answers to many of the most common questions and they can even search the lists for the specific answers they seek. While no single resource can answer every question and provide perfect answers, BCG highly recommends this site as a great place to start.

http://www.dol.gov/esa/ofccp/regs/compliance/faqs/offaqs.htm

If you have questions about regulations or resources feel free to e-mail staff@biddle.com and we will try to help.

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |

BCGI Fall Webinar Schedule Released

BCG Institute for Workforce Development is excited to announce the Fall 2009 Free Webinar Series! Please see the invitations to five new sessions below and be sure to visit www.bcginstitute.org for the entire webinar catalog.

Fall 2009 Webinar Series:

SESSION 1:
Title: Compensation 101 for Federal Contractors – Preparing for OFCCP Changes in 2010
Date: Monday, September 21, 2009
Time: 11:00 AM – 12:30 PM PDT

Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/206670065

SESSION 2:
Title: Submitting your AAP for an OFCCP Desk Audit – (Do’s and Don’ts)
Date: Wednesday, October 21, 2009
Time: 11:00 AM – 12:30 PM PDT

Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/348463960

SESSION 3:
Title: Recordkeeping with a focus on Adverse Impact and Test Methodology in Today’s OFCCP Audit Environment
Date: Thursday, November 12, 2009
Time: 11:00 AM – 12:30 PM PST

Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/655048681

SESSION 4:
Title: Keeping up with the Changes in Requirements for Veterans and Individuals with Disabilities
Date: Tuesday, November 17, 2009
Time: 11:00 AM – 12:30 PM PST

Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/650068729

SESSION 5:
Title: Understanding Basic Qualifications and their role in EEO Compliance
Date: Wednesday, December 9, 2009
Time: 11:00 AM – 12:30 PM PST

Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/288671240

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |

OFCCP Announces Record Settlement

The Office of Federal Contract Compliance Programs (OFCCP) announced another large settlement related to females and minority hiring. Once again it is related to the use of non-validated tests in high-volume entry-level positions. Look for this to be a recurring theme with the OFCCP over the next several years.

See below for the ESA news release:

Gerber Products Co. in Fort Smith, Ark., agrees to pay $900,000 to minorities and females for hiring discrimination

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced Gerber Products Co. has agreed to settle findings of hiring discrimination against 1,912 rejected minority and female applicants for entry-level positions. The agreement settles the department’s allegations that Gerber engaged in hiring discrimination against minority and female applicants for one year.

During a scheduled compliance evaluation of Gerber Products in Fort Smith, OFCCP investigators found the hiring disparity was in part caused by inconsistent selection procedures for entry-level positions. Additionally, OFCCP found that Gerber used pre-employment tests that negatively impacted minority applicants and determined that there was insufficient evidence of validity to support Gerber’s use of the test. Gerber has discontinued its use of the test in the hiring process for entry-level positions. The company is headquartered in Florham Park, N.J.

Under the terms of the conciliation agreement, Gerber will not only pay 1,912 minority and female applicants $900,000 in back pay and interest, but will provide 61 entry-level positions, 11 of whom have already been hired. The company has also agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law and immediately correct any discriminatory practice. In addition, Gerber will ensure compliance with Executive Order 11246 recordkeeping requirements.

For more information, please visit:
http://www.dol.gov/opa/media/press/esa/esa20090969.htm

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |

OFCCP National Forum in September

The U.S. DEPARTMENT OF LABOR Office of Federal Contract Compliance Programs (OFCCP) is hosting a national conference in Alexandria, VA.

See details from the OFCCP web link below:

http://www.dol.gov/esa/ofccp/arra_data/arra_registration.htm

Good Jobs for Everyone

Wednesday, September 9, 2009 – Alexandria, VA
Holiday Inn – Alexandria Historic District
625 First St. Alexandria, VA 22314 • 703.548.6300 • hioldtownalexandriahotel.com

WORKSHOPS

New Federal Supply & Service Contractors –What You Need to Know

Construction Contractors – 16 Steps to Affirmative Action Compliance

Federal Contracting & Procurement Officers –EEO and the FAR

Veterans’ Employment and the G-FIVE Initiative

Ricci and ADAAA legal updates

CONFERENCE PARTICIPANTS WILL LEARN

OFCCP and ARRA

Contractor and agency requirements under Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

How to promote opportunities for veterans and disabled workers

How to promote nontraditional jobs for women and access for all workers

Compliance assistance and enforcement processes

REGISTRATION

Please email your name, title, organization, email address, telephone number to OFCCP-National-ARRA-Conference@dol.gov. There is no fee for attending this conference, however, space is limited. You will receive a confirmation email accepting your registration.

Please select which workshops you would like to attend (select all that apply):

q New Federal Supply & Service Contractors – What You Need to Know
q Construction Contractors – 16 Steps to Affirmative Action Compliance
q Federal Contracting & Procurement Officers – EEO and the FAR
q Veterans’ Employment and the G-FIVE Initiative
q Ricci and ADAAA legal updates

Forum Registration

To register, please give us the following information:

First name
Last name
Company
Address 1
Address 2
City, State Zip
Telephone
Email address

WHERE TO OBTAIN ADDITIONAL INFORMATION

For additional information regarding OFCCP, visit our website at http://www.dol.gov/esa/ofccp/arra_web.html or call the toll-free information helpline, available 8 a.m. to 5 p.m.

Eastern Time, 1-800-397-6251

We would prefer your registration by email to: OFCCP-National-ARRA-Conference@dol.gov

You may also fax this form to: 202-693-1304

You may mail this form to:

Conference Registration
U. S. Department of Labor – OFCCP
Room N-3422
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Please note any accommodations you may need to attend this program (be specific)

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |

How Do Employers [Properly] Disposition Overqualified Applicants?

By Marife Ramos

A client once asked: “Can we disposition overqualified applicants early in the selection process as ‘Did not meet the requirements of the job due to experience’?” The client went on to point out that overqualified candidates, more often than not, will NOT be hired anyway. The client said recruiters know (not “think they know”) that hiring managers typically shy away from hiring overqualified candidates because they tend not to be a good “fit” for the job and eventually leave after a short stint to accept or look for greener pastures. Hence, the client would rather disposition these candidates early in the process and essentially, exclude them from the applicant pool.

Surely, most of us can understand this client’s point of view. From the practical stand point, why should an employer waste time, money, and effort on applicants whom they think will not be a good “fit” anyway? However, excluding these applicants from the selection process simply because they are “perceived” as overqualified can open up an employer to a possible discrimination charge(s) (age discrimination is one of the possibilities).

Here is some advice from the experts on how to properly weed out overqualified applicants who are really not committed on being serious contributors to your organization:

• Let the job seeker self select him/herself out of the process. For example, let them know early in the process the salary requirements; the duties, responsibilities and expectations of the job; the work schedules; etc.

• Develop “fit” profiles. Properly developed fit profiles are used all the time in hiring. Do not simply include questions, at the recruiter’s or hiring manager’s discretion, in a non-validated manner with a non-validated interpretation of the applicant’s responses.

o For example, recruiters or hiring managers can craft questions such as: “Knowing that the job pays so little as compared to your previous job, how can I be convinced that you will remain in this job for a reasonable amount of time?” “Give reasons why you think that this job will not bore you?” “Why should we select you for this job when others with less education and experience can do the job as well or maybe even better?” “Where do you see yourself in two to three years?” These questions, when properly validated, can help the recruiter assess the extent to which the candidate will match with job requirements.

• Reframe questions (and related disposition codes) away from the “overqualified” language to “fit” evaluation/profile questions.
Keep in mind that unless the overqualified applicants “self select themselves out” of the process, they should be considered as “applicants.” If they met the 4 prongs of the OFCCP’s “Definition of an Internet Applicant” they need to move through the selection process just like anybody else. Their records need to be kept for recordkeeping and adverse impact analysis purposes. Selection decisions for and/or against them have to be documented and kept. Besides, not all overqualified applicants will turn out to be unhappy and short-term employees. You might actually find a diamond in a rough, you never know…

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September 21, 2009   Posted in: Affirmative Action News  Comments Closed |


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