HRACC 2011 Susan K. Krell Jackson Lewis LLP krells@jacksonlewis.com Margaret J. Strange Jackson...

HRACC 2011

Susan K. KrellJackson Lewis LLP

krells@jacksonlewis.com

Margaret J. StrangeJackson Lewis LLP

strangem@jacksonlewis.com

1

TOPICS

Paid Sick Leave Law

Ban on Gender Identity

Discrimination

Ban on Use of Credit Reports as a

Condition of Employment

Procedural Changes at the CHRO

Increased Penalties for Violations

of Personnel Files Act

2

Paid Sick Leave Law: The Basics

Effective January 1, 2012

CT will become first state in U.S.

to mandate paid sick leave for

employees

Mandates 40 hours paid leave per

calendar year for covered

absences

Prohibits retaliation against

employees who request or use

sick leave 3

Paid Sick Leave Law: Covered Employers

Public and private employers:

With 50+ employees in the state in

any one quarter in the previous

calendar year

Exemptions:

Manufacturers (as defined in the

North American Industrial

Classification System)

Any nationally-chartered non-profit

which provides recreation, child

care and education (e.g., YMCA)4

Paid Sick Leave Law: Covered Employees

“Service Workers” Hourly and salaried employees not

exempt from the federal Fair Labor

Standards Act

Primarily engaged in any one of a

number of listed occupations 68 occupations listed in statute include:

waiters and waitresses, home health

aides, social workers, dental hygienists,

physician assistants, cashiers,

receptionists, secretaries and

administrative assistants, bus drivers,

librarians, pharmacists, retail clerks and

tellers.

Does not include “day or temporary

workers”

5

Paid Sick Leave Law: Covered Reasons

Illness, injury or health condition

Medical diagnosis, care or

treatment of mental or physical

illness, injury or health condition

Preventive Care

For service worker or child or

spouse of service worker

Leave related to family violence or

sexual assault6

Paid Sick Leave Law: Accrual and Eligibility

Beginning January 1, 2012 (or date

of hire)

One hour of leave for each 40

hours worked

Up to 40 hours per calendar year

Employees are eligible to use leave

after working 680 hours starting

January 1, 2012 (or date of hire)

7

Paid Sick Leave Law: Accrual and Eligibility

Part time employees accrue paid

sick leave, but must have worked

average of 10+ hours per week in

preceding quarter to use the

leave

Carryover of up to 40 hours of

leave permitted, but may not use

more than 40 hours in any one

calendar year8

Paid Sick Leave Law: Notice from Employee

If leave foreseeable, up to 7 days

notice

If leave unforeseeable, as soon as

practicable

If leave is 3 or more consecutive

days, employer may require that

employee provide documentation to

support that leave being taken for

covered purpose9

Retaliation Prohibited

Applies to all employees, not just

covered service workers

No employer shall take retaliatory

personnel action or discriminate against

an employee because the employee:

Requests or uses paid sick leave

under the paid sick leave law or

under the employer’s policies

Files a complaint with the Dept. of

Labor alleging a violation of paid sick

leave law10

Safe Harbor For Existing PTO Policies

Safe Harbor Provision: An

employer that provides paid sick

leave or “other paid leave,” such

as vacation, personal days or paid

time off (PTO) is deemed to be in

compliance with the law if

employer’s PTO policy mirrors or

exceeds, the requirements of the

paid sick leave law for 40 hours of

leave per calendar year. 11

Safe Harbor For Existing PTO Policies

To take advantage of “safe harbor,”

an employer’s PTO policy must:

Accrue at a rate equal to or greater

than the rate under the law

Allow use of accrued hours for

reasons allowed by the law

Allow use as necessary, without

regard to any minimum increment

requirements (legislative history

suggests 1 hr) 12

Safe Harbor For Existing PTO Policies

To take advantage of “safe

harbor,” an employer’s PTO policy

must:

Allow carry over of accrued,

unused time up to 40 hours to

next calendar year

Satisfy employer’s notice

requirements under the law

13

Paid Sick Leave Law: Penalties and Enforcement

Enforced by DOL

Civil fine of $500 per violation of anti-

retaliation provision

Civil fine of $100 per violation of any

other provision

All appropriate relief, including payment

of used paid sick leave, rehiring or

reinstatement to previously held job,

back wages, lost benefits.

Commissioner’s decision may be

appealed to the Superior Court14

Paid Sick Leave Law: Posting Requirement

Employer must provide notice to all

employees at time of hire that:

Employee entitled to paid sick leave,

including amount available and

terms of use

That retaliation for requesting or

using leave is prohibited

That the employee can file a

complaint with the Labor

Commissioner for any violation

May comply by displaying poster in

both English and Spanish15

Paid Sick Leave Law: What To Do Now?

Determine if you are a covered

employer

Determine if you employ covered

service workers

focus on duties, not titles

Review existing PTO policy to see if safe

harbor provision applies

Many unknowns, including:

Interaction with FMLA

Minimum increments of leave

16

Ban on Gender Identity Discrimination

Effective October 1, 2011

Applies to any public or private

employer with 3 or more

employees

Applies to employment agencies

and labor organizations

Broader coverage than under Title

VII

Enforced by Commission on

Human Rights and Opportunities

(CHRO)

17

Definition of Gender Identity or Expression

“Gender–related identity,

appearance or behavior, whether

or not that gender-related

identity, appearance or behavior

is different from that traditionally

associated with the person’s

physiology or assigned sex at

birth.”

18

Definition of Gender Identity or Expression

Can be shown by:

Medical history, care or

treatment of the gender-related

i.d.

Consistent and uniform

assertion of gender-related i.d.

Any other evidence that gender-

related i.d. is sincerely held,

part of person’s core i.d. or not

being asserted for improper

purpose

19

Ban on Gender Identity Discrimination:

What to Do Now?

Review and revise employee

handbook and non-discrimination

policies to make sure that gender

identity is included

Make sure HR professionals are

aware of change in law so that

they can help disseminate

information and provide

appropriate training/ information

Make sure supervisors, managers

are aware of change in law

20

Ban on Use of Credit Scores as Condition of Employment

Effective October 1, 2011

Applies to public and private

employers of 1+ employees,

except for financial institutions

Prohibits employers and their

agents, representatives or

designees from requiring an

employee or prospective

employee to consent to a request

for a credit report as a condition

of employment, with certain

exceptions

21

Ban on Use of Credit Scores as Condition of Employment: Financial

Institutions

“Financial Institutions” means any

entity or affiliate of a state bank

and trust company; national

banking association; state or

federally chartered savings bank,

savings and loan association, or

credit union; insurance company;

investment advisor; broker-dealer;

or entity registered with the

federal Securities and Exchange

Commission22

Ban on Use of Credit Scores as Condition of Employment:

Exceptions

Report is required by law

Employer reasonably believes

employee committed a violation of the

law related to employee’s job

Report is substantially related to

employee’s current or potential job

Employer has a bona fide purpose to

request or use information in the report

that is substantially job-related and is

disclosed to the employee or applicant

in writing23

Substantially Related to the Employee’s Current or Potential Job

Is a managerial position that involves

setting direction or control of business,

division, unit or agency or business;

Involves access to customers’, employees’

or the employer’s personal or financial

information;

Involves a fiduciary responsibility to the

employer;

Provides an expense account or corporate

debit or credit card;

Provides access to confidential or

proprietary business information;24

Substantially Related to the Employee’s Current or Potential Job

Provides access to information which has

actual or potential independent economic

value because it is not generally known

or readily ascertainable and there are

reasonable efforts to keep the

information secret;

Involves access to employer’s

nonfinancial assets of at least $2,005 in

value including, but not limited to,

museum and library collections and

prescription drugs and pharmaceuticals. 25

Ban on Use of Credit Scores as Condition of Employment:

Enforcement

Employee or prospective

employee may file complaint with

the Labor Commissioner

Labor Dept. may impose penalty

of $300 for each inquiry made in

violation of ban

Even if exceptions apply,

employer must comply with

federal Fair Credit Reporting Act

26

Procedural Changes at the CHRO

Effective October 1, 2011

If complaint is dismissed during

the Merit Assessment Review

process, provides automatic,

internal review

27

Procedural Changes at the CHRO

If complaint is not dismissed

during Merit Assessment Review

process:

Requires mandatory mediation

conference within 60 days

Permits request for early legal

intervention

Shortens time period that a

complainant must wait to request

a release of jurisdiction from 210

to 180 days 28

Increased Penalties for Repeat Violators of Personnel Files Act

Personnel Files Act

Requires employers to provide

employee with access to his or

her personnel files or medical

records; and

Prohibits employers from

disclosing the file or records

without the employee’s consent

29

Increased Penalties for Repeat Violators of Personnel Files Act

Effective October 1, 2011, penalties

for violations of Act increased from

$300 to $500 for a first violation and

to $1,000 for any subsequent

violation related to the same

employee

No private cause of action

30

Significant Judicial Decisions

31

Dukes v. Wal-mart (2011) _ U.S. _,131 S.Ct. 2541

Salaried and hourly female employees

alleging systemic practice of gender

discrimination

Wide range of positions

3,400 stores nationwide

1.5+ M member class

Ninth Circuit upheld District Court

certification

• Relied on Plaintiffs statistical and

anecdotal evidence to satisfy

commonality requirement 32

Dukes v. Wal-mart

Supreme Court reverses Ninth Circuit

Lack of commonality under Rule 23(a)(2)

• No evidence employer had a general

policy of discrimination

• Local discretion by supervisors

couldn’t establish inference of

discrimination

• Court rejected Plaintiffs’ statistical

and anecdotal evidence

Unanimously held back pay claims could

not be certified under Rule 23 (b)(2) 33

Dukes v. Wal-mart

Class actions are still viable, but harder to certify• Plaintiffs seeking monetary relief may still seek

class certification under Rule 23(b)(3)

• Must show that class issues predominate over

individual issues and

• Class action is most efficient and desirable means

of trying case

• Mandatory notice to potential class members who

may “opt out” of class

Likely outcome is smaller, more focused classes

34

Retaliation Protection Extends to “Zone of Interest”

Title VII does create a cause of action for

third-party retaliation for persons

who did not themselves engage in

protect activity. Thompson v. North

American Stainless, LP., No. 09-291

(January 24, 2011)

Adopted a “zone of interest” standard (i.e.

does the individual fall within the ‘zone

of interests’ sought to be protected by

the statutory provision whose violation

forms the legal basis of the complaint)

35

Cat’s Paw

An employer, without discriminatory

motive, may be liable for firing an

employee based on information or

advice from biased managers

(“cat’s paw” theory) Staub v.

Proctor Hospital, 09-400 (March 1,

2011)

36

FSLA Retaliation - Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011)

Facts: Plaintiff alleged that his employer

terminated him because he made internal

complaints to management about the

company’s time-keeping practices.

This case turned on whether the FLSA’s

anti-retaliation provision provides that an

employer cannot “discharge or in any

other manner discriminate against any

employee because such employee has

filed any complaint” should be

interpreted as in the past to mean a

written complaint or whether a verbal

complaint suffices. 37

FSLA Retaliation - Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011)

Held: both oral and written complaints

of a violation of the Fair Labor Standards

Act are protected conduct under the

statute’s anti-retaliation provision.

The majority remanded for

determination whether any complaint

made solely to an employer – orally or

in writing – falls under the FLSA’s

protective mantle • Justice Scalia dissents—issue was ripe

for review

38

ADA Amendments Act Final Regulations

39

ADAAA: Recent Developments

Disability claims:• Made up 25% of all EEOC

charges filed in 2010 • Highest year-over-year

growth among all charges filed

New laws and regulations have made it significantly easier to state a disability claim

40

ADAAA: Recent Developments

"You might not think you have a disability, but if you have a medical condition and you feel you are discriminated against based on that condition, then you are covered.“ • EEOC Commissioner Chai

Feldblum, quoted in “More Disabled Workers File Discrimination Claims in 2009,” USA Today, 8/20/10

41

ADA Amendments Act Final Regulations

Released March 25, 2011, with emphasis on expansive coverage

Disability Discrimination: To prove employer discriminated based on disability, claimant only has to show that employer “regarded” claimant as disabled – that is, engaged in prohibited conduct because of an actual or perceived impairment• Claimant is not required to show that the

impairment did, or was perceived to, substantially limit a major life activity

42

ADA Amendments Act Final Regulations

Employer Defense: No claim if condition was “transitory and minor” • “Transitory” = less than 6

months• “Minor” = ?

43

ADA Amendments Act Final Regulations

Failure to Accommodate: To prove

that employer failed to provide a

reasonable accommodation,

claimant must prove the

existence of, or a record of, an

impairment that “substantially

limits a major life activity”

44

ADA Amendments Act Final Regulations

Two expansive lists of “major life activities”:• Actual activities (broadened to

include learning, concentrating, reading, interacting with others, etc.)

• Operation of “major bodily functions” (immune system; special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions)

45

ADA Amendments Act Final Regulations

Employer Defense: Employee’s

impairment posed a direct threat

to the safety of the employee or

others in the workplace.

46

ADA Amendments Act Final Regulations

Other Key Points:Individualized assessment is required … but certain impairments limiting major bodily functions will “in virtually all cases” be disabling, even in their early stages • e.g., deafness, blindness, intellectual

disability, mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, MS, major depressive disorder, bipolar disorder, post-traumatic stress disorder, OCD, schizophrenia, etc.

47

ADA Amendments Act Final Regulations

No durational threshold - conditions with <6 months duration can be disabilitiesMitigating measures cannot be considered in establishing disability• Note: An employee who

refuses to take mitigating measures (e.g., take medication) is still disabled

48

Leave as a Reasonable Accommodation

Questions to Consider• Avoid applying no-fault leave policies

resulting in automatic termination after a set period of time

• Consider first if employee is entitled to leave under FMLA

• If not, does ADA requires leave as a reasonable accommodation?

49

Leave as a Reasonable Accommodation

How Much Leave?• “Indefinite” leave is not required• Courts ask:

• Will the employee be able to return in the identifiable future and be able to resume job functions?

• How much leave has the employee already taken?

• Would additional leave create an undue hardship?

50

ADA/FMLA Intersection: The Intermittent Leave Puzzle

The Case of the Anxious DispatcherCity emergency dispatcher sought intermittent FMLA leave for depression and anxiety for 6 months or more and was terminated based on an independent medical evaluation showing her unfit for duty. Held: (1) The fitness for duty exam was a business necessity because the job requirements for a dispatcher were to be alert and calm with callers and (2) Plaintiff had no right to FMLA leave because she requested intermittent leave for 6 months or longer. Wisbey v. City of Lincoln, 612 F.3d 667 (8th Cir. 2010).

51

ADA/FMLA Intersection: The Intermittent Leave Puzzle

The Case of the Absent Flight AttendantFlight attendant suffering from psoriatic arthritis was unable to work multiple days each month. The airline terminated him for excessive absences after he exhausted intermittent FMLA leave. Held: (1) Plaintiff’s attendance did not render him unqualified for the job because the attendance policy was extremely lenient and Plaintiff complied with it for 7 years and (2) the jury could reasonably have concluded that attendance was not an essential job function because the airline allowed Plaintiff to take intermittent FMLA leave for 7 years without attempting to reassign him to a temporary position. Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010).

52

What is GINA

GENETIC

INFORMATION

NONDISCRIMINATION

ACT

53

GINA

• Prohibits use of genetic

information in employment

decision-making• Restricts employers and other

covered entities from requesting,

requiring, or purchasing genetic

information

54

GINA

• Requires that genetic information

be maintained as a confidential

medical record, and places strict

limits on disclosure of genetic

information• Provides remedies for individuals

whose genetic information is

acquired, used, or disclosed in

violation of its protections

55

Why Should I Care?

• I don’t collect anyone’s DNA

• I don’t want to collect

anyone’s DNA

• I don’t want to know

anything about anyone’s

DNA

• I certainly would not

discriminate against

someone based on his/her

DNA

• So, why should I care about

GINA? 56

Who is Covered by GINA?

• Employers with 15+ employees

• “Employee” includes applicants,

current and former employees

57

Prohibited Acquisition of Genetic Information by Employer

General Rule: • An employer may not request,

require, or purchase Genetic Information of an individual or his/ her family member

Request includes:• Internet searches in a way likely to

obtain Genetic Information• Actively listening to third party

conversations or searching an individual’s personal effects for purpose of obtaining Genetic Information

• Asking about an individual’s current health status in a way that is likely to result in obtaining Genetic Information

58

Exception for Inadvertently Acquired Genetic Information

•Acquisition of Genetic Information in response to lawful request for medical information WILL NOT BE inadvertent unless employer directs entity from whom it requested the information not to provide Genetic Information•For the exception to apply, employer should provide written notice about GINA with the request for medical information

59

Enforcement of GINA

• Same as for Title VII

• No claim for disparate impact

• 201 charges filed with EEOC in

2010

• Same remedies as for Title VII

Employers must post notice pertaining

to GINA obligations and rights

• Subject to a fine of up to $100 for

failure to post such notice

60

Practical Implications for Employers

• Train managers to comply with GINA

• Audit medical information processes; are changes needed due to GINA?

• Revise employee medical certification forms to include EEOC’s suggested language

• Write to any health care practitioner conducting medical exams on behalf of employer that disclosure of Genetic Information prohibited

• Post new EEO poster with GINA information

61

Hiring Using

Social Networking Sites

62

Hiring & Social Networking

• There is no law that directly prohibits the use of SNS in the hiring process.

• There has been no reported increase in failure-to-hire cases based on information obtained from SNS.

• There is no law which requires the use of SNS in the hiring process.

• But there are RISKS to accessing and using such information.

63

Risks for Employers

• Hiring Issues Associated with Using the Web

• Lawful background checks? FCRA?

• Discrimination concerns?

• Lawful-off duty conduct?

• First Amendment protections under Connecticut law?

• Reliability? Even if not unlawful, employer may make employment decisions based on inaccurate information.

64

Lessons Learned—Hiring

If you are going to use SNS for hiring

decisions:

• Develop policy on whether

employer will search internet or

access social networking sites for

job applicants.

• Do so consistently and in a uniform

manner.

• Make sure candidates are notified,

in writing, about the company’s

use of SNS to gather information.65

Lessons Learned—Hiring

• Consider searching social

networks only after the initial in-

person interview with the

applicant.

• Ensure appropriate employment

decisions are made based on

lawful, verified information.

66

Lessons Learned—Hiring

• Designate non-decision maker to

conduct search. The individual

should be properly trained to

avoid improper access and to

screen out information that can

not be lawfully considered in the

decision-making process.

• The non-decision maker can then

provide “scrubbed” information to

the decision maker for

consideration.67

Lessons Learned—Hiring

• Rely on job-related criteria

(preferably from a job description).

• Be aware of relying on legal, off-

duty conduct.

• Follow best practices: identify a

legitimate, non-discriminatory

reason for the hiring decision with

documentation supporting the

decision. 68

The Facebook® Firing Case

• The Policy

• “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.”

• “Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way…”

69

The Facebook® Firing Case

• The NLRB Complaint• The NLRB argued that the employee’s

conduct was protected, concerted activity and that her termination was unlawful.

• In addition, the employer’s policy was “overly broad” and unlawfully interfered with its employees’ exercise of their right to engage in protected concerted activity under Section 7 of the NLRA.

• The parties settled, but another case may provide more direction:• On February 4, 2011, the SEIU filed an

unfair labor practice charge against a Connecticut bus company that alleges that the employer violated the NLRA merely by “maintaining” policies in its employee handbook. 70

Best Practices for Employers

Be proactive.

Adopt clear policies.• Have a policy regarding use of and access to

company owned technology.

• Implement a social networking/blogging policy.

Place employees on notice regarding potential monitoring of electronic communications.

Consider a total ban on the internet during working hours.

Consider whether to block employee access to social networking sites during working hours.

71

Methods to Minimize Risk

Ensure that company policies governing corporate logos, branding, and identity apply to all electronic communications.

Get a signed acknowledgment of the policies.

Employees must comply with company policies with respect to their electronic communications, such as policies prohibiting harassment and enforcing standards of conduct.

Company reserves the right to take disciplinary action in the employee’s communications violated company policy.

72

Some Statistics

AT THE EEOC:

99,922 Private Sector Charges

72,000

77,000

82,000

87,000

92,000

97,000

102,000 Total Charges Total Charges

73

EEOC Charges Filed in FY 2010

Type of Claim No. Filed

% of Total Charges

Filed

% Change from

FY2009

Race 35,890 35.9% 6%

Sex 29,029 29.1% 3.5%

National Origin

11,304 11.3% 5%

Religion 3,790 3.8% 12%

Retaliation 36,258 36.3% 8%

Age 23,264 23.3% 2%

Disability 25,165 25.2% 17%

Equal Pay Act 1,044 1.0% -1%

GINA 201 .2% ----

74

Retaliation Claims Soar

• For the first time ever, retaliation (36,258) surpassed race (35,890) as the most frequently filed cause of action at the EEOC.

• The Supreme Court perpetuates . . . • Burlington Northern & Santa Fe Railway Co. v.

White (2006)• Gomez-Perez v. Potter (2008)• CBOCS West, Inc. v. Humphries (2008)• Crawford v. Metropolitan Government of Nashville

(2009)• Thompson v. Northern American Stainless, LP (Jan.

24, 2011)• Staub v. Proctor Hospital (Mar. 1, 2011)• Kasten v. St.-Gobain Performance Plastics Corp.

(Mar. 22, 2011)

75

EEOC Secures Record Dollars

Through its combined enforcement, mediation and litigation programs, the EEOC secured more than $404 million in monetary benefits from employers -- the highest level of monetary relief ever obtained by the EEOC through the administrative process.

76

The EEOC’s Expectations for 2011

• The EEOC predicts it will receive over 107,000 charges in FY 2011, the largest number ever filed.

• Anticipates a budget increase of $18 million allocated to:• Increasing hiring to improve

enforcement initiatives;• Reducing backlog; and• Targeting systemic litigation

77

EEOC Initiatives for FY 2011

• Systemic Initiative • Focus on discrimination class

actions

• E-Race Initiative• Eradicating Racism and

“Colorism” from Employment• Targeting credit and background

checks

• Objective • Increase the number of

multi-plaintiff/class/pattern & practice cases 78

• Buzz words in the EEOC Charge like “pattern or practice” or “similarly situated”

• No option to mediate

• Charge implicates a policy applicable to other employees

• Sequence of charges on same issue

• Charge accompanied by subpoena

• Broad request for information

• Request for on-site visit

Signs the EEOC is Looking for Systemic Issues

79

EEOC Initiative: E-RACE in 2011

• EEOC has focused on the use of criminal background and credit checks in hiring as part of the E-RACE initiative

• EEOC will likely issue a new Guidance seeking to ban applications from asking about conviction records

80

CT Human Rights and Opportunities Commission (CHRO)

Statistics:

• Charges filed: 1,740 24 more than in FY 2009 (1,716)

Most Frequently-Filed Causes of Action:

 • Gender (483)• Age (464)• Color (461)

81

OFCCP Enforcement Statistics FY 2010

Financial remedies - $9.75 million

Workers covered – 12,397

Average benefit per “victim” - $786

Number of compliance evaluations –

4,960

Number of Conciliation Agreements -

919

82

OFCCP Alleges that Meyer Tool Discriminated Against Black

Applicants (2010)

• OFCCP review began in 2005.

• OFCCP claims discrimination

against Black applicants for entry

level machinist positions.

• Conducted an onsite in 2008

83

OFCCP Alleges that Meyer Tool Discriminated Against Black Applicants

(2010)

• Referred to Regional Solicitor in in

March 2009 because they could

not agree on a remedy amount.

• OFCCP seeking back pay, interest,

hiring of at least 14 class

members, an updated applicant

tracking system, etc.

84

After ACM and Under New ACE, OFCCP Will Conduct Audits Very

Differently

Since 2003, OFCCP used Active Case

Management (ACM) to govern how to

conduct audits

Focused only on systemic

discrimination; left affirmative

action and individual

discrimination behind.

Also, concerns that savvy

contractors may be “cooking the

books” to avoid red flags and on-

sites.85

Active Case Enforcement: So What Now?

In December, 2010 OFCCP rescinded

ACM; replaced with Active Case

Enforcement (ACE)

• OFCCP significantly broadening

audit focus• Pat Shiu said audits need to be

“more thorough, more in-depth”

Investigations of systemic and

individual discrimination and

“patterns of individual

discrimination”

86

Active Case Enforcement: So What Now?

Previously, OFCCP only would

look at classes of 10 or more;

under ACE, “classes” of 2 or

more. “Patterns of individual

discrimination” mean one-on-

one or small group

comparisons.

87

Active Case Enforcement: So What Now?

ACE Changes the Rules for “Full

Desk Audits” and On-sites

• Under old Rules, full desk audit

was a rare occurrence

Under ACE, all audits will be

full desk audits

Focus no longer solely on

systemic discrimination,

expands focus to individual

discrimination and

traditional affirmative action88

Active Case Enforcement: So What Now?

• Far More On-site audits

For past many years, OFCCP

generally went on-site only to

investigate statistical indicators

Now will go on-site for statistical

red flags, anecdotal indicators

and technical issues

Much more detailed on-site letter

89

Active Case Enforcement: So What Now?

ACE Changes the Rules In Other

Areas Too

• Intense focus on outreach to

Veterans and Disabled

OFCCP increasingly requires

proof of results from outreach

– encouraging employers to

request disabled and veteran

status of applicants90

New Rules and New Emphasis in Compliance Reviews

Compensation

Discrimination

Veterans and the

Disabled

91

92

So Now What? How is the OFCCP Investigating Pay

Discrimination?

OFCCP is utilizing multiple initial

diagnostic tools to identify indicia of

disparate impact and disparate

treatment or pattern-or-practice

discrimination

93

So Now What? How is the OFCCP Investigating Pay

Discrimination?

OFCCP is using a much BROADER

initial test to show indicia of

systemic and individual

compensation discrimination

• Many regions are seeking 12-factor data where there

are disparities of either 2% or $2,000 by job title or

other grouping submitted with the AAP

For job titles with 2% or $2,000 disparities,

OFCCP may move forward in different

ways to determine its strongest case

Will request 12-factor data to run multiple

regression analysis to determine the

existence of statistically significant

disparities for both disparate impact and

pattern-or-practice cases

So Now What? How is the OFCCP Investigating Pay

Discrimination?

94

95

So Now What? How is the OFCCP Investigating Pay

Discrimination?

May conduct a cohort analysis

to determine the existence of

individual pay claims under

disparate treatment

Depending on the theory of

liability that best suits the

situation, OFCCP may or may

not conduct on-site

investigation to procure

anecdotal evidence

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How to be Proactive Amidst the Uncertainty…

NOW, OFCCP’S FIRST STEP IN AUDIT IS

• Generally, OFCCP has scrapped the 30-

30-3 for 2% or $2,000 disparity by job

title…

SO, NEED TO BE STRATEGIC ABOUT JOB

TITLES

• Signals to the contractor community the

importance of JOB TITLES being as clear

and meaningful as possible…JOB TITLES need to tell the real story of

who truly ought to be compared

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How to be Proactive Amidst the Uncertainty…

FOR EXAMPLE…• Communications technology contractor has

100 diagnostic technicians with the job title

“Diagnostic Technician”

• However, not all 100 do the same thing – in

fact, they actually do very different things

and require very different education,

experience, and skills

• DO THIS Engineering Diagnostic Technician

I, Communications Diagnostic Technician II,

and Design Diagnostic Technician I

• INSTEAD OF THIS Diagnostic Technician

How to be Proactive Amidst the Uncertainty…

Whether conducting a self-

analysis or responding to an

audit, the internal investigation

needs to be as FLEXIBLE and

PRACTICAL as the OFCCP will be…

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How to be Proactive Amidst the Uncertainty…

Conduct an initial 2% or $2,000

diagnostic, but then be ready to

go where the numbers and facts

take you…

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How to be Proactive Amidst the Uncertainty…

Be prepared for in-depth

COHORTS and far-reaching

MULTIPLE REGRESSION

ANALYSES

COHORTS

• By job group, job title, or other

appropriate grouping, “eye-

ball” the differences and be

prepared to tell the story why…

How to be Proactive Amidst the Uncertainty…

MULTIPLE REGRESSION ANALYSIS

• Do not limit the multiple

regression to the 12 factors – dig

deep to determine all factors

that relate to pay

• Performance ratings, prior

experience, degree type,

promotion from non-exempt

position, etc. 101

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Compensation

And, let’s remember that no good deed

goes unpunished so . . .

Conduct all proactive pay self-audits

and AAP pay equity analyses under

attorney-client privilege • That gives you the strongest argument later on to keep

the analyses and pay adjustments to yourselves

Veterans and the Disabled

• The OFCCP is looking for greater

outreach as to Veterans and the

Disabled.

• Be sure to send all job postings to

the state job bank and consider

sending announcements of open

positions to organizations that work

with the disabled and covered

veterans.

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Veterans and the Disabled

• If the company uses an online

application process it must be

accessible to individuals with

disabilities, inform applicants that

they may request a reasonable

accommodation, and provide

applicants with another way to

apply (e.g., in person,

telephonically, with a paper

application).  104

Veterans and the Disabled

• A statement to that effect such as the

one below could be helpful:

            COMPANY endeavors to make

WEBSITE URL accessible to any and all

users.  If you would like to contact us

regarding the accessibility of our

website or need assistance completing

the application process, please contact

contact name, title, dept at phone

number including tty/tdd lines if

applicable, e-mail address, or link to a

website.

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Veterans and the Disabled

• The OFCCP in a Compliance Review

 will ask for documentation of

outreach efforts to veterans and

organizations which work with the

disabled.

• Outreach organizations consist of, but

are not limited to, rehabilitation

facilities, social service agencies,

educational institutions,

organizations for individuals with

disabilities and the local Veterans

Representative for veteran

organizations.

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Thank You

Any Questions?krells@jacksonlewis.com

strangem@jacksonlewis.com

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