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HRACC 2011
Susan K. KrellJackson Lewis LLP
Margaret J. StrangeJackson Lewis LLP
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
96
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
97
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…
98
99
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…
100
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
102
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.
103
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.
105
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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108