In understanding the implementation of the new regs, and the impact of the new FAQs, we need to review the revised regulations in Subpart C – Sections 741/300.44(k) requiring the collection of specific information for data analysis. The revised regulations require:
“(k) Data collection analysis. The contractor shall document the following computations or comparisons pertaining to applicants and hires on an annual basis and maintain them for a period of three (3) years:
- The number of applicants who self-identified as individuals with disabilities/protected veterans pursuant to §60-741/300.42(a), or who are otherwise known to be individuals with disabilities/protected veterans;
- The total number of job openings and total number of jobs filled;
- The total number of applicants for all jobs;
- The number of applicants with disabilities/protected veteran applicants hired; and
- The total number of applicants hired.”
Continue reading New Data Collection Analysis Requirements
On June 12th, the OFCCP announced a $1 million settlement of a claim of systemic race discrimination in hiring against the Lincoln Electric Company in Cleveland, OH. The Agency alleged that the Company had discriminated against 5,557 African-American applicants for entry-level manufacturing production jobs by using an unvalidated selection process involving the use of various assessment instruments. The settlement also calls for the Company to hire 48 members of the affected class.
The Agency found that the Company’s selection process involved a “Turnover Risk Index” that had the effect of screening out African-American applicants at a disparate rate as opposed to non-African-Americans. The selection process involved asking candidates about their willingness to work rotating shifts as well as questions about drug use and criminal convictions. This was the second time in 11 years that the Company settled a $1 million claim of unlawful discrimination in entry-level hiring. Continue reading Applicant Pools, Adverse Impact and $1 Million
On February 12, 2014, President Obama signed an Executive Order (EO) raising the minimum wage for new and renegotiated federal contracts to $10.10 an hour effective January 1, 2015. Then, on March 10, 2014, he issued a Presidential Memorandum (PM) instructing the Labor Department to review the eligibility requirements for overtime under the Fair Labor Standards Act (FLSA).
On April 8, 2014, he signed another Executive Order regarding the “Non-Retaliation for Disclosure of Compensation Information.” Also on April 8, 2014, he issued another Presidential Memorandum instructing the Labor Department to propose a rule requiring federal contractors and subcontractors to submit summary data on compensation to the Labor Department by race and sex. Continue reading Executive Orders and Presidential Memorandums
Under the newly revised regulations regarding Veterans (VEVRAA) which became effective Monday, March 24th, the OFCCP established, for the first time, a hiring benchmark (goal) for Protected Veterans. Covered employers are given a choice of either accepting the National Percentage of Veterans in the Civilian Labor Force as their benchmark, or developing their own benchmark by considering five (5) different factors. This hiring benchmark is part of the Subpart C requirements that become effective as of the start of the next AAP planning cycle. For contractors on a calendar year plan, that means the benchmark requirement will be effective January 1, 2015.
The Annual National Percentage of Veterans in the Civilian Labor Force is based on Census Population Survey Table 1, provided by the Bureau of Labor Statistics (BLS) and is updated annually. Until this point in time, the OFCCP had published the 2014 benchmark number as 8%. However, on Friday, March 21st, the OFCCP announced that the benchmark number would actually be 7.2%. This benchmark will be in effect for all AAPs that renew after March 24, 2014. It is also important to recognize that this percentage will be updated and a new number will be published each year, resulting in a new benchmark at that point for contractors who simply adopt the BLS percentage. Continue reading OFCCP Issues Revised Guidance on New Vets and Disabled Regs
On January 29, 2013, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 306 addressing covered contractors and sub-contractors use of criminal background checks to exclude applicants or employees from working for them. The OFCCP directive mirrors guidance provided by the Equal Employment Opportunity Commission (EEOC) in early 2012. Both the OFCCP and EEOC guidelines are based on the probability that members of a protected class have a significantly higher likelihood of having a criminal record than a non-protected individual. Both the OFCCP and the EEOC believe that a blanket prohibition of the hiring individuals with any criminal record will have a disparate impact on the basis of race. Continue reading OFCCP Issues New Directive on the Use of Criminal Background Checks
On February 28, 2013, the OFCCP issued two documents which, if you believe the majority of writers and commentators who weighed in on the topics, signaled the end of the world as we know it for employers subject to the jurisdiction of the OFCCP. On that date, the Agency published a notice in the Federal Register stating that it was rescinding the 2006 Standards on how the Agency would address systemic discrimination in compensation. Also published was Directive 307 on “Procedures for Reviewing Contractor Compensation Practices.” Continue reading OFCCP’s Notice of Recission of the 2006 Compensation Analysis Standards
In recent years the OFCCP has become increasingly more focused on the need for contractors to take additional good faith efforts for veterans and the disabled beyond the job positing requirement contained in the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) and the Jobs for Veterans Act (JVA). In fact, inquiring into outreach for veterans and the disabled and necessitating proof that the outreach is being conducted has become a standard information request during OFCCP compliance reviews. OFCCP is now following up on the information supplied by contractors, and checking references to verify compliance. In some cases, failure to meet this requirement has resulted in conciliation agreements. VEVRAA requires the posting of all jobs with the state employment services where the job exists with the exception of 1) executive or top management, 2) temporary positions of three days or less, or 3) jobs to be filled exclusively from within. The JVA specifies how jobs are to be listed as well as providing additional recommendations that contractors can take as evidence of good faith efforts. Continue reading Listing Jobs with the State Employment Service – Is it Enough?
On March 8, 2013, The United States Citizenship and Immigration Services (USCIS) released a new version of the I-9 (Employment Eligibility and Verification) form. Employers should already be familiar with the I-9 form, as it is a federal requirement that all employees complete one upon being hired. The purpose of the form is to verify the legal identity of employees working in the United States and to confirm they have the authorization to work, whether they are a U.S. citizen or not. Though the changes from the old form to the new one are relatively minor, there can be penalties and fines for non-compliance. In order to make a successful transition to the new form, employers must be aware of the changes, and be prepared to answer questions on how to fill it out correctly. Continue reading New I-9 Form Effective May 7, 2013