Transcript Enter Title Here

Welcome to Compliance Day!
Nita Beecher
Workforce Opportunity Network
October 26, 2012
Today’s Schedule
8:30 am Introduction
8:45 am Regulatory update and member roundtable
9:45 am Break
10:00 am Elizabeth Grossman, one of two EEOC leads on
systemic discrimination
12:00 am Lunch
1:00 pm Discussion on Section 503/VEVRAA and member
roundtable continues
2:30 pm Meeting ends
MERCER
July 7, 2015
1
Recommendations of Panel on Measuring and Collecting Pay
Information from US Employers by Gender, Race and National Origin
On the recommendation of National Equal Pay Enforcement Task Force to
evaluate data collection needs and capabilities the EEOC asked National
Research Council Committee on National Statistics (CNSTAT):
– Convene a panel of experts to review methods for measuring and
collecting pay information from U.S. employers for the purpose of
administering Section 709 of the Civil Rights Act of 1964, as amended.
–
Evaluate currently available and potential data sources, methodological
requirements, and appropriate statistical techniques for the measurement
and collection of employer pay data.
– Consider suitable data collection instruments, procedures for reducing
reporting burdens on employers, and confidentiality, disclosure, and data
access issues.
– Issue a report with findings and recommendations on what data the
EEOC should collect to enhance wage discrimination law enforcement
efforts, which will assist the EEOC in formulating regulations.
MERCER
July 7, 2015
2
Recommendations of Panel on Measuring and Collecting Pay
Information from US Employers by Gender, Race and National Origin
The panel selected by the National Academies was:
• John M. Abowd (Chair), Department of Economics, Cornell University
• H. Juanita (Nita) Beecher, Mercer LLC
• Marc Bendick, Jr., Bendick and Egan Economic Consultants, Inc.
• Charles C. Brown, Department of Economics, University of Michigan
• Elizabeth Hirsh, Department of Sociology, University of British Columbia
• Mark R. Killingsworth, Department of Economics, Rutgers University
• Jonathan S. Leonard, Haas School of Business, University of California, Berkeley
• Janice F. Madden, Wharton School, University of Pennsylvania
• Aleksandra (Sesa) Slavkovic, Department of Statistics, Pennsylvania State
University
• Finis R. Welch, Welch Consulting
• Valerie Rawlston Wilson, National Urban League Policy Institute
MERCER
July 7, 2015
3
Recommendations of Panel on Measuring and Collecting Pay
Information from US Employers by Gender, Race and National Origin
• Recommendation 1: In conjunction with the Office of Federal Contract
Compliance Programs of the U.S. Department of Labor and the Civil Rights
Division of the U.S. Department of Justice, the U.S. Equal Employment
Opportunity Commission should prepare a comprehensive plan for use of
earnings data before initiating any data collection.
• Recommendation 2: After the U.S. Equal Employment Opportunity
Commission, the Office of Federal Contract Compliance Programs, and the
U.S. Department of Justice complete the comprehensive plan for use of
earnings data, the agencies should initiate a pilot study to test the collection
instrument and the plan for the use of the data. The pilot study should be
conducted by an independent contractor charged with measuring the
resulting data quality, fitness for use in the comprehensive plan, cost, and
respondent burden.
MERCER
July 7, 2015
4
Recommendations of Panel on Measuring and Collecting Pay
Information from US Employers by Gender, Race and National Origin
• Recommendation 3: The U.S. Equal Employment Opportunity Commission
should enhance its capacity to summarize, analyze, and protect earnings
data.
• Recommendation 4: The U.S. Equal Employment Opportunity Commission
should collect data on rates of pay, not actual earnings or pay bands, in a
manner that permits the calculation of measures of both central tendency
and dispersion.
MERCER
July 7, 2015
5
Recommendations of Panel on Measuring and Collecting Pay
Information from US Employers by Gender, Race and National Origin
• Recommendation 5: In anticipation of increased user demand for
microdata on pay information by demographic detail for research and
analytical purposes if the data are collected by the U.S. Equal Employment
Opportunity Commission, the agency should consider implementing
appropriate data protection techniques, such as data perturbation and the
generation of synthetic data, to protect the confidentiality of the data, and it
should also consider supporting research for the development of these
applications.
• Recommendation 6: The U.S. Equal Employment Opportunity Commission
should seek legislation that would increase the ability of the agency to
protect confidential data. The legislation should specifically authorize datasharing agreements with other agencies with legislative authority to enforce
antidiscrimination laws and should extend Title VII penalties to nonagency
employees.
MERCER
July 7, 2015
6
Recommendations of Panel on Measuring and Collecting Pay
Information from US Employers by Gender, Race and National Origin
• “The main purpose for which the wage data would be collected, as articulated to the
panel by EEOC and OFCCP representatives, is for targeting employers for
investigation regarding their compliance with antidiscrimination laws. But beyond
this general statement of purpose, the specific mechanisms by which the data
would be assembled, assessed, compared, and used in a targeting operation are
not well developed by either agency.”
• “The panel found no evidence of a clearly articulated plan for using the earnings
data if they are collected. The fundamental question that would need to be
answered is how the earnings data should be integrated into the compliance
programs, for which the triggers have primarily been a complaint process that has
generated relatively few complaints about pay matters.”
• “Furthermore, the panel concludes that existing studies of the cost-effectiveness of
an instrument for collecting wage data and the resulting burden are inadequate to
assess any new program. Unless the agencies have a comprehensive plan that
includes the form of the data collection, it will not be possible to determine, with
precision, the actual burden on employers and the probable costs and benefits of
the collection. Therefore, the first recommendation is to develop such a plan.”
MERCER
July 7, 2015
7
Impact on EEOC and OFCCP Data Gathering Projects
• At NILG speakers indicated the panel’s report sets back
agencies’ proposed compensation data gathering proposals at
least 3-5 years
• The OFCCP’s proposed compensation tool is not likely to
move forward
• Scheduling letter is stalled and the proposed compensation
collection is dead
• However OFCCP still able to collect all the data it wants based
on Frito-Lay and United Space Alliance
• But remember hiring discrimination is where OFCCP makes its
money
MERCER
July 7, 2015
8
OFCCP
Scope of OFCCP Audits
Frito Lay decision
The ARB reversed favorable ALJ decision even though agency has
not amended regulations saying no data after date of scheduling
letter.
The OFCCP can request data going forward, beyond the year of the
scheduling letter.
- ARB held that OFCCP’s request for AAP data extending forward to
two years after OFCCP issued the Scheduling Letter, was narrow and
motivated by an objective deficiency discovered during the audit.
- Possible argument if OFCCP does not discover any deficiencies?
- Contractor has an ongoing duty to comply with the OFCCP’s audit
data requests that are reasonable and consistent with the Agency’s
duty to safeguard compliance with federal regulations.
MERCER
July 7, 2015
9
OFCCP
Scope of OFCCP Audits
United Space Alliance
OFCCP’s desk audit is not required to end when OFCCP completes its
analysis of the initially requested information.
“The Court understands that United Space and the entire community of
federal contractors are keenly interested in how OFCCP decides
whether to request additional data on a contractor's compensation
practices, but that interest does not allow those companies or this Court
to interfere with the agency's investigatory practices. Submission to such
lawful investigations is the price of working as a federal contractor.”
MERCER
July 7, 2015
10
OFCCP
United Space Alliance and Frito-Lay litigation have reinforced
OFCCP’s entitlement to contractor employment information
during routine compliance evaluations
– Has resulted in increased OFCCP insistence for
comprehensive employment data
– More difficult for contractors to argue OFCCP not entitled to
requested information
– May require contractors to argue relevance of requested
data
- Makes OFCCP’s data collection authority more like that of
EEOC
MERCER
July 7, 2015
11
OFCCP
Other items—
• CSALs to be posted on OFCCP website and no longer mailed
to contractors
– Contractors concerned about wide access of website
• According to recent discussion with district director agency no
longer doing cohort analysis on compensation
– Apparently Pam Cuokos determined to do only statistical
analysis
• Agency is “fly specking” AAPs
– Mentioned at SWARM by Melissa Spear that they are cross
checking hires with payroll records
MERCER
July 7, 2015
12
OFCCP
More items
ARB on October 19 found OFCCP has no jurisdiction over
Florida hospital providing hospital services for federal
contractor that administers a network for TRICARE
– Reversed ALJ based on Section 715 of National Defense
Authorization Act that exempted TRICARE providers from
OFCCP’s jurisdiction
– TRICARE support contract may not be considered a
contract for performance of health care services or supplies
for determining whether network providers are
subcontractors under FAR so not a subcontract under
OFCCP regulations
MERCER
July 7, 2015
13
OFCCP
Additional items
• More issues around how contractors are being selected for
audit
– US Security Associates filed complaint with DOL ALJ
alleging violation of 4th Amendment in selection
- ALJ dismissed saying contractors can’t sue in DOL OALJ
– OFCCP taking position that because get CSALs as notice
no extension of time to submit data
– Agency investigating more individual complaints especially
vets and individuals with disabilities
MERCER
July 7, 2015
14
OFCCP
• What types of requests are members getting in audits?
• What are the major issues for members in OFCCP audits?
• How are members handling current audits?
• Any suggestions for other members?
• What types of compensation analysis are members doing?
MERCER
July 7, 2015
15
OFCCP
Possible relief for contractors/employers--Christopher v.
SmithKline Beecham (S. Ct.)?
The U.S. Supreme Court ruled that no deference owed when DOL
interpretation (or change in interpretation) of ambiguous regulations would
impose massive liability on a party for conduct that occurred before the
interpretation was announced.
• The Court’s decision held:
– Regulations must provide “[f]air warning of conduct [a regulation]
prohibits or requires.”
– An agency cannot announce its interpretations for the first time in
enforcement proceedings that result in unfair surprise.
MERCER
July 7, 2015
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OFCCP
• How could Christopher apply?
• Factors that the Supreme Court cited in Christopher also apply
to OFCCP interpretations:
– Ambiguous regulations;
– Massive liability;
– DOL conspicuous inaction for lengthy period;
– Retroactive interpretation—standards were not in effect at
time of audit; and
– Not based on notice and comment.
MERCER
July 7, 2015
17
OFCCP
Center for Corporate Equality determined that there have been
very few Section 503 or VEVRAA violations.
– Reviewed DOL’s OFCCP compliance database and
complaint investigations from September 2004 to June 2012
– Of the 285,390 federal contractor/subcontractor
establishments
- 871 veterans or disability complaints
- 60 resulted in violation, averaging 6.67 per year
- Majority of these technical violations
- 95% closed with no finding of discrimination
- In compliance evaluations 3 violations out of 22,104 reviews
• Applied Economics Strategies estimated Section 503 revisions
cost $5.9B with recurring costs of $2.68B
MERCER
July 7, 2015
18
OFCCP
Status of Section 503 and VEVRAA regulations as of this
meeting
– Neither set of proposed regulations have been sent to OMB
for approval
- OMB put hard stop on regulations in August prior to November election
– Calculation had been that OFCCP would issue final
VEVRAA (Section 4212) regulations in late August-early
September
- Speculation at NILG was that agency would announce sending
regulations to OMB but did not occur
– If send to OMB after November election probably will not be
able to issue as final prior to end of Obama term
– Nevertheless OFCCP making data requests right now!
MERCER
July 7, 2015
19
Samples of current OFCCP data requests
Veterans
Disabled
• State job postings during review
• 3 years VETS-100/VETS-100A
reports
• Self-id forms
• Executed contracts/purchase orders
with correct language
• Posting where employees can view
AAP
• Invitation to vets to self-id and
posting
• List of employees self identifying as
vets
• List of applicants id’d as vets,
whose hired and if not why not
• Leave and accommodation policies
• Job descriptions with medical and
physical requirements
• Info on review of medical and
physical requirements
• Employees or applicants denied
promotion or hire due to medical or
physical job requirements
• Onllne accessibility
• Accommodation request list (name,
date of hire, request, granted and if
not why not
• Disability leave list
• Maternity leave list
• Disabled applicant list
MERCER
July 7, 2015
20
Affirmative action
• Fisher v. University of Texas
MERCER
July 7, 2015
21
NLRB
Confidentiality in internal investigation violates Section
8(a)(1)—Banner Health Systems d/b/a Banner Estrella Medical
Center, 358 N.L.R.B. No. 93
–Hospital investigated ULP of employee
–During investigation HR told employees interviewed not to
discuss while investigation was under way to protect
investigation
–Board said it was employer’s burden “to first determine
whether in any give[n] investigation witnesses need[ed]
protection, evidence [was] in danger of being destroyed,
testimony [was] in danger of being fabricated, or there [was] a
need to prevent a cover up.”
–Blanket policy of asking for employee silence not justified as it
“had a reasonable tendency to coerce employees”
MERCER
July 7, 2015
22
NLRB
Social media policies need to be narrowed to avoid violating
Section 8(a)(1)
– Costco’s policy barred any electronic statements that
damaged the company, defamed an individual or damage
any person’s reputation
– Board held “broad prohibition…clearly requires them to
refrain from engaging in certain protected communications”
– The rule allows employees to reasonably assume that it
pertains to—among other things—certain protected
concerted activities, such as communications that are critical
of the respondent’s treatment of employees.
MERCER
July 7, 2015
23
EEOC
• CRST Van Expedited Inc.-8th Circuit refuses to rehear case
• EEOC v. TriCore Reference Labs.—10th Cir. ordered EEOC to
pay $140,000 in fees in failure to accommodate case for
continuing case after clear there was no case
• EEOC v.Nestle—Ky. district court refused to require employer
to provide information on acquisition of genetic information
based on single employee’s charge
• EEOC v. U.S Steel Corp.—Pa. district court held pattern or
practice lawsuit subject to 300 day statute of limitations
MERCER
July 7, 2015
24
EEOC
• EEOC v. Randstad—4th Circuit enforced EEOC subpoena on
literary requirements finding EEOC entitled to deference in
determining relevance of data needed
• EEOC v. Freeman—D. Md. says in EEOC case on use of
criminal background and credit checks defendant can depose
commission on their use of criminal background and credit
checks in their hiring
• EEOC v. Cognis Corp.—Ill. district court says employer can’t
restrict ability of employees to file EEOC charges in last
chance agreements
• EEOC v. Kronos—3rd Circuit says EEOC entitled to any info it
needs from 3rd party test provider
MERCER
July 7, 2015
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