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Peter Gudmundsson CEO, RecruitMilitary Jennifer Seda, Esq. Jackson Lewis P.C. Top 10 OFCCP Enforcement Trends: From Compensation to Veteran Recruitment and Everything in Between

Top 10 OFCCP Enforcement Trends - RecruitMilitarymarket.recruitmilitary.com/rs/004-YTR-509/images/RM... · 2018-04-25 · Represents management exclusively in every aspect of employment,

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Peter Gudmundsson

CEO, RecruitMilitary

Jennifer Seda, Esq.

Jackson Lewis P.C.

Top 10 OFCCP Enforcement Trends:From Compensation to Veteran Recruitment and

Everything in Between

EventsProducing well-attended and highly regarded career fairs in cities across the

country.

Digital SolutionsHosting the largest single-source veteran employee database, with over 800k+

members. Employers can use our database for job postings, database

subscriptions, targeted email campaigns, and digital employment branding.

Media50,000 print copies of our Search & Employ® magazine distributed every two

months; digital version linked to our website. Two newsletters with 225,000 total

monthly circulation to veteran candidates. Employers have the opportunity to

be featured in the magazine, as well as purchase advertising space.

RecruitMilitary develops and delivers a variety of branding, engagement,

employment, and retention services to employers, and creates

connection opportunities for veterans, including:

Jennifer Seda, Esq.Jackson Lewis P.C. | Denver

[email protected] | 303-225-2411

Represents management exclusively in every aspect of employment,

benefits, labor, and immigration law and related litigation

800 attorneys in 57 locations nationwide

Current caseload of over 6,500 litigations

approximately 650 class actions

Founding member of L&E Global

A leader in educating employers about the laws of equal opportunity,

Jackson Lewis understands the importance of having a workforce that

reflects the various communities it serves

©2016 Jackson Lewis P.C.4

Ranked in the First Tier nationally in the category of Labor and

Employment Litigation, as well as in both Employment Law and Labor Law on

behalf of Management, in the U.S. News - Best Lawyers® “Best Law Firms”

Recommended in U.S. Legal 500 for Labor and Employment Litigation, Labor-

Management Relations and Workplace and Employment Counseling

Designated as a Powerhouse in both Complex and Routine Litigation in the

BTI Litigation Outlook 2016: Changes, Trends and Opportunities for Law Firms

62 Jackson Lewis attorneys were named Leaders in Their Field by Chambers

USA for 2015; 137 Jackson Lewis attorneys were selected for inclusion in the

2016 edition of Best Lawyers in America

©2016 Jackson Lewis P.C.5

Our Affirmative Action Compliance and OFCCP Defense practice

group of approximately 40 lawyers, statisticians, and data

analysts prepares over 2,500 affirmative action plans (“AAPs”)

each year for our federal contactor and subcontractor clients.

Since 2011, we have defended over 350 OFCCP audits, including

successful defense of Corporate Management (“Glass Ceiling”)

Compliance Evaluations. As a law firm, we offer more than

consulting services, we offer strategic thinking and sophisticated

legal representation

6 ©2016 Jackson Lewis P.C.

Jen is a Principal in the Affirmative Action Compliance & OFCCP

Audit Defense practice group where she prepares approximately

500 affirmative action plans and defends 100 OFCCP audits each

year.

Jen also assists employers in preparing privileged EEO pay

analyses in and out of litigation. This includes analyses in

response to internal complaints, EEOC investigations, OFCCP

audits, and litigation.

Recognized by Chambers and SuperLawyers, Jen is also a

member of the Center for Corporate Equality’s Compensation

Technical Advisory Committee, Author and Editor of EEO Insight,

and serves on the DirectEmployers Compliance Advisory Board.

7 ©2016 Jackson Lewis P.C.

The materials contained in this presentation were prepared by

the law firm of Jackson Lewis P.C. for the participants’ reference

in connection with education seminars presented by Jackson

Lewis P.C. Attendees should consult with counsel before taking

any actions and should not consider these materials or

discussions about these materials to be legal or other advice.

©2016 Jackson Lewis P.C.8

Top 10 OFCCP Enforcement Trends

• What are they?

• Why/how is OFCCP asking for the information?

- Obama agenda

- OFCCP budget concerns/focus

- Regulatory changes

• How should we respond?

• Takeaways: How to get in front of each of these

9 ©2016 Jackson Lewis P.C.

Top 10

OFCCP Enforcement Trends

10 ©2016 Jackson Lewis P.C.

Common request: Provide documentation of all jobs

listed with the state.

Mountainside Office example: “Provide copies of each

job order and the job description. Indicate if applicants

were provided by the employment center, and if so, the

disposition of each applicant.”

Regulations do not require that we create documentation

if it does not already exist.

Note: Check with your recruiters and/or third-party

vendor as to what they can provide.

11 ©2016 Jackson Lewis P.C.

EEO policy stmt. & availability of AAPs for inspection:

• How, when, and where applicants and employees may view AAP;

• Common requests: Description and/or picture.

Labor union notification:

• Documentation notify labor union of EEO obligations;

• Contract or letters.

Subcontractor notification:

• Documentation notify subcontractors of EEO obligations;

• Send letters on an annual basis;

• Ensure in appropriate contracts, especially staffing agencies.

12 ©2016 Jackson Lewis P.C.

Must notify applicants of how they may request an accommodation in the online application process.

Common OFCCP requests/actions:

• Description or screen shot of accessibility/accommodation notice;

• Review online themselves on Careers webpage;

• Request accommodation through process.

How to respond:

• Put up accommodation policy on Careers site;

• Designate person responsible for answering every day —response time is key

13 ©2016 Jackson Lewis P.C.

Include this language on the Careers site:

[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,

INCLUDE TTY/TDD LINES IF APPLICABLE] or [E-MAIL ADDRESS

OR LINK]. This contact information is for accommodation requests

only and cannot be used to inquire about the status of applications.

[Company] is an equal opportunity employer. Qualified applicants will

receive consideration for employment without regard to race, color,

religion, sex, sexual orientation, gender identity, national origin,

disability or protected veteran status. For our EEO Policy Statement,

please click here. If you’d like more information on your EEO rights

under the law, please click here.

14 ©2016 Jackson Lewis P.C.

Itemized Listing requires that we include information on

date assessment was performed, actions taken, and

next date to be completed.

Employers can address through plan text or narrative:

• More specific date completed: Most recent annual plan year if

nothing else has been done;

• Be careful of “actions taken” to submit in an audit;

• Next date to be completed: Next annual plan year.

15 ©2016 Jackson Lewis P.C.

Itemized Listing requests evidence of most recent assessment of physical and mental qualifications:

• Date of assessment;

• Actions taken;

• Date of next scheduled assessment.

Regulations require: “Schedule for the periodic review of all physical and mental job qualification standards” to ensure they are job-related for the position.

OFCCP wants to see regular (annual) review.

Response: Reviewed with job postings if nothing more formal done.

16 ©2016 Jackson Lewis P.C.

Provide accommodation and leave policies.

Provide accommodation log/information on

accommodations requested and results:

• All accommodations requested, granted (yes/no), if not, why not;

• How were similar requests handled;

• Documentation & contact information.

Find out if any accommodations have been denied and,

if so, why. That is where OFCCP will focus.

17 ©2016 Jackson Lewis P.C.

Provide sub-minority personnel activity data for applicants, hires, promotions, terminations (Item 18).

Legal basis under the Uniform Guidelines:

• “A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact….”

Therefore, OFCCP can run analyses for highest rate vs. other rates and even combine them together (ex. Hispanic v. White + Black).

But, VF Jeanswear: OFCCP should not run “all other” analyses (ex. Asian v. All Others).

18 ©2016 Jackson Lewis P.C.

19

Analysis

Rate for

Group on

Left

Rate for

Group on

Right

Standard

Deviation

Shortfall

Minority v. Non-Minority 9/100

.09

1/100

.01

-2.596 4

Hispanic v. Black 8/20

.40

1/80

.01

5.416 6

Hispanic v. White 8/20

.40

1/100

.01

6.045 6

Hispanic v. Black +

White

8/20

.40

2/180

.01

7.570 7

©2016 Jackson Lewis P.C.

Provide “unknown” race/gender applicants.

How will they analyze?

• Low response rate.

• What is good enough?

If so, could suggest:

• Not soliciting race and gender;

• Not requesting at appropriate time in the process;

• Not tracking/maintaining.

20 ©2016 Jackson Lewis P.C.

OFCCP often requests “expressions of interest.” Why?

• FCCM item

• Adverse impact

• Low ratios/inexorable zeroes

• Steering concerns

How to respond

• Narrative re: Internet Applicant Rule

• If provide data, ensure it does not cause statistical indicators

• Push back

21 ©2016 Jackson Lewis P.C.

For each employee (on the same date as the workforce

analysis), provide:

Provide data electronically.

Provide compensation policies (not required per FAQ).

22

Unique Identifier Date of Hire Locality

Race/Ethnic Category Gender Hours in a Typical

Workweek

Job Title Base Compensation Overtime

EEO-1 Category Bonuses Merit

Job Group Commissions Incentives

©2016 Jackson Lewis P.C.

Common compensation-related requests:

• Get the data as quickly as possible

• Establish Pay Analysis Groups (“PAGs”)

• Request copies of compensation policies

• Conduct compensation manager interview (even before receipt

of data)

• Some COs want to “get everything” before running analyses

• “Prove” attorney-client privilege

• Underlying data

23 ©2016 Jackson Lewis P.C.

Best practices:

• Analyses:

- Run regression and cohort analyses prior to submission

- Know what factors affect pay in each group

- Know what PAGs look best (job group, grade, job title, etc.)

• Submission:

- Submit data electronically password protected

- Do not break out categories (ex. types of bonuses)

- Do not provide additional fields of information unless they are necessary to bring under significance in analyses

- Do not submit compensation policies

24 ©2016 Jackson Lewis P.C.

Interview:

• Prepare:

- Discuss factors in analyses affecting pay (note: not necessarily pay for performance)

- Discuss groupings most advantageous

- Minimize discretionary nature, where applicable

• Treat it like a deposition:

- Less is more

- Do not offer more than requested

- Do not refer to additional documents not produced unless already reviewed by and ok’d for production

25 ©2016 Jackson Lewis P.C.

New Items 7 (Sec 503) and 11(VEVRAA):

• “Results of the evaluation of the effectiveness of the outreach

and recruitment efforts” for the disabled and covered veterans.

Common requests:

• Provide a description of all outreach activities your company

participated in during the plan year.

• Provide documentation of outreach activities to veterans &

disabled individuals (and women & minorities).

• Provide the name and contact information for the organizations

contacted.

26 ©2016 Jackson Lewis P.C.

OFCCP has said “failure to meet goals/benchmarks is

not a violation; failure to try is.”

Show OFCCP you are trying:

• Generally say what worked well;

• Note areas where continue to work with source(s);

• Describe areas where changes were made/different source(s)

added.

Try to focus OFCCP on areas where goals exist.

Get reports/data to use, if necessary.

27 ©2016 Jackson Lewis P.C.

Stay up to date on the latest from OFCCP:

Consider signing up for our blog

http://www.affirmativeactionlawadvisor.com/

A source for insights, news and strategy on affirmative

action and EEO compliance matters

28 ©2016 Jackson Lewis P.C.

©2016 Jackson Lewis P.C.29

If you have any questions about affirmative action, OFCCP

audits, or pay analyses, please contact:

Jennifer Seda

303.225.2411

[email protected]

Questions about RecruitMilitary, please contact:

Peter Gudmundsson

214.415.2331

[email protected]

W W W . J A C K S O N L E W I S . C O M

57

Locations Nationwide*

*Jackson Lewis P.C. is also affiliated with a Hawaii-based firm

Jackson Lewis represents a wide range of companies in various industries, including: