A New OFCCP Era Shakeups, Breakups, and Mergers – Oh, My! Allen Hudson, SHRM-CP, PHR Director of Corporate Communications - HudsonMann October 17, 2017
A New OFCCP EraShakeups, Breakups, and Mergers – Oh, My!
Allen Hudson, SHRM-CP, PHRDirector of Corporate Communications - HudsonMannOctober 17, 2017
DOL LeadershipPresident• Donald Trump
Secretary of Labor• Alex Acosta
OFCCP Director• VACANT (Acting Director, Thomas Dowd)
OFCCP Deputy Director• Thomas Dowd
To Merge, or Not to Merge?Merger reported to be off the table
US Chamber and many advocacy groups against it
Not much support in the government (including EEOC & OFCCP).
So what will OFCCP Look like under the Trump administration?
Quality of Audits – Tom DowdQuality more important that quantity of audits
Secretary Acosta is no stranger to civil rights and Affirmative Action
Asserted OFCCP’s jurisdiction
Doesn't believe in doing more with less
OFCCP Agency Trends 2016 - 2018
105.4 105.2
94.5
88
90
92
94
96
98
100
102
104
106
108
FY 2016 FY 2017 FY 2018
Dol
lars
(in
Mill
ions
)
OFCCP BUDGETBudget Amount
615
571
563
530
540
550
560
570
580
590
600
610
620
FY 2016 FY 2017 FY 2018
# F
TE
Empl
oyee
s
OFCCP HEADCOUNTFTE Employees
Compliance Assistance – Tom DowdCompliance assistance does not get you on the audit list
Ideas for voluntary training programs
Reinforced the concept of VOLUNTARY compliance
Applauded contractors for their work against discrimination
“If you’re timely, accurate, and work with us on data, chances are you get a letter of compliance.”- Thomas Dowd at 2017 NILG Conference
Compliance Assistance – Debra CarrWhat can OFCCP do to incentivize compliance outside of a compliance evaluation?
Past Compliance Assistance activities included: FAQs, speaking, website, etc.
Ideas for future activities:1) training2) national training conference3) awards4) registered agent of service for scheduling letters?5) town halls for feedback
Compliance Assistance – Debra CarrAcknowledged aspirational nature of Veteran and IWD goals and benchmarks
3% response rates on Contractors survey (sent to 6600)
Halted national office training for COs
Will attach expertise to performance standards and the work they are assigned
“Compliance alone won't change the employment picture for underrepresented groups.“- Debra Carr at 2017 NILG Conference
Still In FocusPay Discrimination
Mega Construction Projects
Skilled Regional Centers (New York & San Francisco)
High Quality Compliance Evaluations
U.S. Chamber of Commerce on OFCCP“Right Mission, Wrong Tactics” report
Criticized OFCCP for adversarial approach & lack of transparency
Recommends OFCCP:
- adopt a more neutral enforcement approach
- increase compliance assistance activities
3975
4923
4333
3907
4942
4007 4000 4100
3802
2602
1696
1057
2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
OFCCP AUDITS BY FISCAL YEAROFCCP Audits
Source: OFCCP Enforcement Database
Audit OutcomesCompletion Type FY 2017 (Q1-Q3) Avg. FY07-FY16
Conciliation Agreement or Consent Decree
18.5% 17.1%
EO 11246 Violation 18.5% 13.8%Section 503 Violation 6.6% 9.7%Section 4212 Violation 9.1% 12.3%Discrimination Violation 3.6% 1.8%
Source: www.dol.gov/ofccp/BTN/index.html
1,057 Compliance ReviewsFiscal Year 2017
816Notice of Compliance
206Conciliation Agreements
30Financial Agreements
5Consent Decree
77% 19%
2.8% <1%
Source: OFCCP Enforcement Database
New Audit Scheduling LetterRequires additional compensation information
Updated for new VEVRAA and Section 503 regulations
Must show detailed race/ethnicity counts in activity reports
Audit Trends and Focus AreasAdverse Impact in Hiring
Compensation and Pay Equity
Job Steering
Outreach
Recordkeeping
Case Study – Beverage DistributorConsent decree for $175,000
Alleged hiring discrimination against black applicants
Violations included:- failing to keep complete & accurate records - failing to evaluate selection procedures
Avoiding Hiring DiscriminationSolid job descriptions
Consistent hiring process
Use disposition codes
Annual adverse impact analysis
Validate all assessments and tests
Compensation TrendsCompensation Interviews:
20 minutes – 3 hours longDetailed, repetitive questions on pay policies and procedures
Pay Analysis Groups
Compensation Interview Questions
Does your company have written guidelines on compensation administration?
Who determines the starting salary for a new employee?
Are there annual performance increases?
How do you ensure fair pay?
Do you provide training on compensation administration?
Complaint InvestigationsNew electronic filing form and system
$50K settlement from disability complaint
$19,600 average monetary relief (FY 2007-FY 2016)
79 Investigations FY 2017 Q1-Q3 (4 with monetary relief)
Race29%
Sex19%
Disability18%
National Origin12%
Veteran11%
Religion4%
Color4%
Gender Identity2%
Sexual Orientation1%
Complaints by Basis FY 2017 (Q1-Q3)
Job Steering Case Study444 women steered into “light-duty” jobs with lower wages
Adverse impact in hiring on males, African-Americans and Caucasians
Settlement from reviews at nine separate facilities
Avoiding Steering IssuesRequire applicants to apply for specific positions
Document applicant choice
Defined application process
Outreach & Documentation Violations
Ensure mandatory job listings are occurring
Document specific outreach towards women, minorities, veterans and individuals with disabilities
Maintain 3 years’ of employment and recruitment data
How Do You Minimize Potential Liability?•Follow a formal application process
•Utilize disposition codes
•Avoid “informal” expressions of interest
•Set up an active consideration period
•Don’t accept applications for “any opening”
•Posting temp to hire opportunities
•Review employee referral selection process
•Set and utilize minimum qualifications – track outcomes
•Review testing validation
Recent ChangesFair Pay and Safe Workplaces rescinded
EEO-1 Report (pay data component shelved)
Paid Sick Leave for Federal Contractors here to stay
Minimum Wage for Federal Contractors Increasing in 2018