Director Shiu discussed the hardships faced by women and minorities who do not receive the same pay for the same job as their male or non-minority comparators.  She vowed “[t]he OFCCP is working on pay equity issues.”  She went on to discuss a partnership between the EEOC and the OFCCP focused on equal pay “[t]he EEOC and the OFCCP have embarked on a new path of partnership . . . [o]ur work together on implementing the White House Pay Equity Initiative affords our respective agencies the unique opportunity to work in concert . . . ”

Director Shiu also highlighted the OFCCP’s focus on enforcement.  “With respect to enforcement, the OFCCP is working to transform its enforcement procedures to be more effective, more efficient, and more pro-active. The OFCCP staff across the country is stepping up their investigations and audits, ensuring accuracy, thoroughness, and quality outcomes. Excellence is the standard.”

What does this mean to employers?

Over the past year, we have seen an increased focus from government agencies on enforcement and investigation.  Director Shiu’s comments further reinforce the government’s intent.  The equal rights agenda is laudable; however, there are potential ramifications for employers.  EEO Logic commented in our June blog post on the need for robust policies and procedures and regular self-critical analysis to protect against potential claims of systemic discrimination.  Director Shiu’s speech and her focus on equal pay, enforcement, and intra-agency partnerships highlight the need for robust systems.  What appear to be simple business decisions, when statistically analyzed, or considered as a group of unrelated decisions, may lead to an inference of discrimination. 

EEO Logic will help you navigate the Affirmative Action and Equal Employment Opportunity Maze.  Affirmative Action and Equal Employment laws and regulations are the core of EEO Logic’s business – it is what we focus on.  Turn your compliance activity over to the experts so you can focus on your core business.

The affirmative action requirements for disabilities are often not the focus of Affirmative Action planning.  The workforce analysis requirements for gender and race are more readily recognized.  The ANPRM underscores the agencies commitment to “[e]qual access to employment is a fundamental right of every American.” 

The ANPRM seeks to understand how the affirmative action requirements of Section 503 can be strengthened to measurably increase employment opportunities of covered contractors for individuals with disabilities.  There are also questions that suggest that a future proposed rule may include utilization analyses and hiring goals for persons with disabilities.  While this focus does not have an immediate impact on workforce planning, it may ultimately lead to further tracking and analysis.

Save the time and effort on these issues by outsourcing your Affirmative Action planning to EEO Logic. 

The original text of the OFCCP news release announcing the ANPRM is available at http://www.dol.gov/opa/media/press/ofccp/ofccp20101015.htm

Company agrees to pay $290,000 to 446 African-American job applicants

DENVER — The U.S. Department of Labor’s Office of Federal Contract Compliance Programs has announced that The Wackenhut Corp., doing business as G4S Wackenhut, has entered into a consent decree to settle findings of hiring discrimination at its Aurora, Colo., facility. The consent decree settles OFCCP’s allegations that Wackenhut engaged in hiring discrimination against 446 rejected African-American applicants for the position of traditional security officer for a two-year period. Wackenhut is headquartered in Palm Beach Gardens, Fla.

“The department is committed to ensuring that federal contractors and subcontractors hire, promote and compensate their employees fairly, without respect to their race, gender, ethnicity, disability, religion or veteran status,” said Patricia A. Shiu, director of OFCCP, who is based in Washington, D.C. “This settlement of $290,000 in back pay on behalf of 446 African-Americans should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination.” OFCCP News Release: [06/09/2010], Release Number: 10-0736-DEN

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Analysis:

Federal contractors are being put on notice by the OFCCP that they are “serious about eliminating systemic discrimination”.  The issue with such a statement is that it seems to imply that systemic discrimination is an inherent part of doing business.  Based on our experiences at EEO Logic, there is often a business rationale for a series of one-off decisions that, when taken as a whole, can have the appearance of systemic discrimination.  A critical self-assessment of programs and practices that includes statistical workforce analysis for hiring, promotions, and compensation decisions can help avoid allegations of systemic discrimination.  EEO Logic has successfully helped clients defend allegations of systemic discrimination.  While a strong defense is important, more important is an annual data review process that includes a self critical statistical analysis.  Contact EEO Logic for a comprehensive workforce evaluation to help prevent you from being the subject of the next OFCCP press release.

Compliance is often interpreted as adherence to a specific law or regulation.  Unfortunately, it is not that simplistic.  Many times an organization may appear to be in compliance with a specific regulation or law, but may find that their internal practices and procedures create an atmosphere of non-compliance.  For example, Company A may have a specific non-discrimination policy with all of the correct language and have an avenue to receive and address internal complaints.  They may also have strict compensation policies that dictate the level of pay within a given pay range – all of which are compliant.  Suppose Company A now has an immediate need to restructure and hire a group of specialists for an evolving business need.  In the course of this hiring, Company A recruits a group of people who are within the compensation ranges, but, due to their specialty and current market conditions, are higher than other individuals within the same grade range.  In this case, the OFCCP or EEOC may infer a pattern of discrimination.  The Compliance issue is not related to the statute, but is applicable to the Company’s internal policies and practices.

Compliance is complicated and requires a review of not only laws and regulations, but also internal practices and procedures.  EEO Logic reviews all factors of compliance to ensure the most secure position for your organization.

The DOL increased awareness, compliance focus, and related fines are likely to spur complaints and potential litigation.  It is more important than ever to ensure your compliance programs, particularly those around compensation, are regularly reviewed.  EEO Logic can help.  EEO Logic provides comprehensive Affirmative Action Plans and compensation reviews in accordance with E.O. 11246.  Contact us if you have any questions or would like to discuss how we can help.

Data Integrity is defined broadly as data that has a complete or whole structure. All characteristics of the data including business rules, rules for how pieces of data relate, dates, definitions and lineage must be correct for data to be complete.

Why is this important to your business?

As with any business-related data, employee data and its integrity is important because clean data is an indicator of how the business is managed.  Poorly structured data, or data that does not flow through a defined set of rules leads flawed analytics, improper conclusions, and may ultimately lead to additional costs.

Why is this important for your Affirmative Action Plan and the OFCCP?

As will most organizations these days, the OFCCP relies on computer technology to assist with their analytics.  They use databases to determine when compliance reviews should be scheduled and they use statistical methods to infer patterns of discrimination.  Once an inference is made, it is much more difficult to explain data anomalies than it would be to have supplied correct data in the first instance.

One of the best ways to show the OFCCP the validity of your AAP and your compliance program is to ensure data integrity.  For a proactive review of your data, or your compensation practices, contact EEO Logic.