CHANGES TO EEO REQUIRED POSTERS (Displayed in your workplace): 

For copies of the new poster, go to:  http://www.dol.gov/esa/ofccp/regs/compliance/posters/ofccpost.htm_________________________________________

This is an excellent article from the law firm of Greenebaum Doll & McDonald PLLC (www.greenebaum.com) - we thought you should understand how having a union can change the outcome of an issue such as inappropriate language in the workplace..  We also see that this issue of inappropriate language (cursing) in the workplace could have a different outcome from an EEO standpoint.  In some cases (depending on who was involved, the environment, etc.), cursing could be creating an illegal hostile working environment. 

It's okay to discipline employees for using profanity . . . isn't it? 

Not necessarily.

A recent decision of the National Labor Relations Board (the "Board") serves as a convenient reminder that employers must exercise restraint when dealing with employees who are engaged in activity protected by the National Labor Relations Act ("NLRA").  In this case, the Board determined that an employer violated the NLRA by disciplining a union steward for using profanity toward a supervisor during a disciplinary meeting.  (Alcoa Inc., N.L.R.B. No. 141, 8/29/08)

An Alcoa employee (exercising his Weingarten rights) asked his union steward, Mark Hewitt, to represent him during a disciplinary meeting with management.  During that meeting, Hewitt pointed at a supervisor, used a four-letter expletive to describe the supervisor, and expressed his view that the disciplinary action against the employee was unfair.  Hewitt was promptly suspended for insubordination and abusive and offensive behavior toward the supervisor.  The union filed an unfair labor practice charge with the Board, alleging that Alcoa had violated Hewitt's right to engage in union activity protected by the NLRA.

The Board agreed that Alcoa had violated the NLRA by suspending Hewitt, because Hewitt was acting as a union representative at the time of the incident.  In determining whether an employee's conduct (such as Hewitt's outburst) is protected by the NLRA, the Board considers: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's conduct; and (4) whether the conduct was in any way provoked by an employer's unfair labor practice.  Although Hewitt's outburst was not provoked by an unfair labor practice, the Board found that the other factors weighed in Hewitt's favor.  Specifically, the Board noted that Hewitt's use of profanity occurred in the course of discharging his representative duties.

An employer normally would be free to discipline or discharge an employee for this or similar conduct.  The presence of a union in the workplace changes things, especially where otherwise unacceptable conduct occurs in the course of protected activity.  As this case indicates, the NLRA cloaks union representatives with protections that can trump normal disciplinary rules.  Conduct that may normally warrant disciplinary action, such as the use of profanity, may be protected if occurs in the course of a union representative's discharge of his or her representative duties.  There are, of course, limits to what is protected (e.g ., Hewitt would not be protected if he had punched the supervisor), but the limits are poorly defined and highly fact sensitive.

Unions are well aware of the NLRA's protections, and they typically ensure that employees who are selected to serve as union representatives also know what they can "get away with."  Employers who don't know and follow the law are at a disadvantage.  This case should remind employers to resist the temptation to rush to discipline an employee acting as a union representative for what would be legitimate reasons in other circumstances.

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OFCCP Implements New Veteran Employment Program – Hire Military Veterans and Possibly Draw A Three Year Exemption from OFCCP Compliance Reviews

OFCCP has created a program to encourage the employment of military veterans by formally recognizing federal contractors and subcontractors that have undertaken successful efforts to employ covered veterans. The program, Good-Faith Initiative for Veterans Employment (G-FIVE Initiative), provides a three year exemption from OFCCP compliance reviews for those contractor or subcontractor establishments that receive a G-FIVE Rating (unless there is reason for OFCCP to believe discrimination exists).

Contact us to find out how to qualify or to obtain assistance with this initiative. 

OFCCP Web site:   http://www.dol.gov/esa/ofccp/regs/compliance/directives/dir282.htm

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Updates RE:  ADA (that you need to know)

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008. As a result of this new legislation, which will go into effect on January 1, 2009, minor changes have been made to this document.

EEOC’s web site includes this synopsis:

The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

• directs EEOC to revise that portion of its regulations defining the term "substantially limits";
• expands the definition of "major life activities" by including two non-exhaustive lists:
• the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
• the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
• states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;
• provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and
• emphasizes that the definition of "disability" should be interpreted broadly.

EEOC will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.

There have been updates also to the way performance standards are conducted to ensure equality.  For more information regarding the Americans with Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities

http://www.eeoc.gov/facts/performance-conduct.html#fn7

The OFCCP recently released directives on accessibility of online job application systems, specifically:   

• If you use an on-line job application process, be sure the top of the first page contains the NAME and TELEPHONE NUMBER (and, email address) for the individual who can receive and act on requests for accommodation in the application process.
• Individuals must be able to read all graphics on a web site or the site does not function properly with adaptive technology (Zooming in on graphics and text to make them more readable, or converting graphics and text to voice for the sight impaired),
• Individuals must have appropriate access to the equipment - applicants must be able to get a wheel chair/scooter up to a Kiosk application facility so the keyboard can be used properly.  Ensure individuals know who to contact for guidance or to report problems.
• The notice should also indicate an alternate method of application if the web site is the only normal avenue and it is unusable for some reason by an individual applicant with a disability.

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Jurisdiction and AUDITS:  Things You Should Know:

During the second week of October, OFCCP indicated they sent out approximately 2,500 scheduling letters for desk audits. In March, 2009, OFCCP will send out another 5,000 scheduling letters. Early FY 2009, OFCCP will make it policy to conduct an on-site review of one in every 50 desk audits. OFCCP has been doing random on-site audits for several years; however, have not necessarily followed a set number.  This is being done to keep contractors honest with the statistics that are submitted.   They do not need to find discriminatory indicators in order to select the contractor for the on-site review.

For the contractors who are one of the 7,500 audits who are randomly selected for the on-site visit, OFCCP has not specifically stated the details of the on-site review process. Expect at the very least: 

• Interviews with employees and management staff
• Review of I-9 Forms
• Facility Inspection (policies, posters, and notices posted, proper job groupings, etc.)
• Data requests on compensation programs and details on compensation decisions (if statistical indications of discrimination have been found)
• Data requests on personnel activity where standard deviations over 2 have been identified

…more to come. 

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OFCCP SHOWS THEY STILL HAVE ENFORCEMENT MUSCLE

Record Breaking Financial Remedies in FY 07

In Fiscal Year 2007, OFCCP enforcement efforts resulted in a record $51,680,950 (that would be MILLION) in back-pay and annualized salary and benefits for 22,251 American workers (another record number).  These 22,251 workers were subjected to unlawful employment discrimination.  The majority of those recipients (98%) benefited from the OFCCP’s efforts through cases of systemic discrimination / class discrimination based upon an unlawful personnel policy or practice.

Take note:  In addition to the fact that systemic discrimination cases are the bulk of the OFCCP’s discrimination findings, OFCCP also asserts that the huge (and continued) increase in findings and settlements is directly tied to the way in which contractors are selected for audit (the process of who passes the desk audit and who gets a friendly visit on-site).  Not only does this method ensure more employers are audited, it ensures they are focusing their time and energy on those employers who have statistical RED FLAGS informing them of potential problems.   OFCCP also attributes much of their success on their new method to identify first tier contractors (Contracts First project).  They are going to continue finding federal contractors who have been quietly hiding behind the EEO-1 form). 

Do you know what your personnel activity statistics would tell the federal government?  If not, you are open to be included in the statistics for next year.  Contact our offices today to find out how to ensure your personnel policies and procedures are not fodder for the OFCCP Compliance Officer looking for a systemic case. 

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FEDERAL CONTRACTORS:  Check out E-Verify – You may soon be required to verify immigration information through this Homeland Security program.  We will keep you informed as the Executive Order goes through the approval process.  In the meantime, check out E-Verify at:  www.dhs.gov/E-Verify

Executive Order: Amending Executive Order 12989, as Amended

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Final Rule for Filing VETS-100A Form

May 2008

To reiterate:  New categories for veterans are:

o  Disabled Veterans
o  Other Protected Veterans
o  Armed Forces Service Medal Veterans
o  Recently Separated Veterans

For a copy of a PDF version of the Federal Register posting of this
final announcement, go to:
http://www.dol.gov/vets/programs/fcp/federal_contractor_program_fs.htm

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EEOC ISSUES NEW GUIDELINES FOR VETERANS WITH SERVICE-
CONNECTED DISABILITIES UNDER ADA AND USERRA


The EEOC’s web site now has two sets of guidelines for employers who hire veterans with service-connected disabilities.  The guidelines specify the differences between employer responsibilities under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA).

These two federal laws provide important protections for veterans with disabilities.  USERRA is enforced by the U.S. Department of Labor (DOL) and the ADA is enforced by the EEOC.

If you have veterans with disabilities in your workforce you will want to review both of these documents.  One document tackles ten key questions about the issues involved.  Learn: "How does USERRA differ from the ADA?" to "May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?"

The second document discusses the same issues from the veteran's viewpoint.  It details how to appropriately handle the disability issue when seeking employment and what protections are offered by these laws.

www.eeoc.gov/facts/veterans-disabilities.html
www.eeoc.gov/facts/veterans-disabilities-employers.html

_______________________________

OFCCP UPDATES VEVRAA REGULATIONS FOR JOB LISTING
REQUIREMENT

On April 7, 2008, the Office of Federal Contract Compliance Programs
(OFCCP) published its final rule governing the regulations at 41 CFR 60-250 pertaining to the listing of job openings with state employment agencies.  Until now there has been a difference in requirements between 60-250 and 60-300 which implements the Jobs for Veterans Act (JVA) of 2002.

This final rule revises the regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA). The regulations in part 60-250 implement the nondiscrimination and affirmative action provisions of VEVRAA prior to their amendment in 2002 by the JVA, and apply to contracts entered into before December 1, 2003.  This final rule revises the mandatory job listing provision in the part 60-250 regulations to provide that listing employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the mandatory job listing requirements under the part 60-250 regulations.

Since the elimination of America's Job Bank in 2007,all job openings must be listed with the local state employment service (as in the ‘old days of OFCCP’).  There are the same three exceptions provided for in these regulations:  Jobs that are at the senior executive level, jobs that are going to last only 3 days or less, and jobs that will only be filled from internal sources.

The regulations covering government contracts prior to December 1, 2003, and those covering contracts following that date are now lined up.

For a copy of the final rule go to:
http://edocket.access.gpo.gov/2008/E8-7123.htm

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EVERY EMPLOYER SHOULD HAVE AN EFFECTIVE EEO COMPLAINT PROCEDURE

Employers can protect themselves from liability for harassment under Title VII by maintaining adequate complaint procedures and taking prompt remedial action in response to harassment complaints. However, the 7th Circuit EEOC v. V&J Foods Inc. the key word to winning a case is “adequate”—complaint procedures must be thorough and easy to understand.

In V&J Foods, the plaintiff, a 16-year-old girl, accused the store manager of making several unwanted sexual advances. After several complaints from the teenager and her mother to the plaintiff’s co-workers and supervisors, the store manager fired the girl. The plaintiff sued her employer for sexual harassment, but the district court dismissed the case because the plaintiff failed to follow the complaint procedure set up by the company.

On appeal, the 7th Circuit reversed the district court’s decision after finding the employer’s complaint procedure to be insufficient. The process instructed employees to report harassment to their district manager. However, the policy failed to provide contact information, and did not provide a method for employees to bypass their supervisors when they feared retaliation or when they were the perpetrators of the harassment.

Employers should review their complaint procedures to ensure they are understandable and effective. If you don’t have one, contact us, we will be happy to help.

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Second FY 2008 OFCCP Scheduling (To Be Audited) List Released

A second list of supply and service contractor establishments will be available to OFCCP regional offices beginning on March 10, 2008 for scheduling of compliance evaluations during this scheduling cycle (currently, October 1, 2007 through September 30, 2008). The first release for FY 2008 was made available to the regional offices for scheduling on October 1, 2007.

This release includes approximately 5000 facilities that have either self-identified as being an establishment of a Federal contractor, or have been identified as such by OFCCP. OFCCP generated this list through its Federal Contractor Selection System (FCSS) using multiple information sources and analytical procedures to select contractors for evaluation, including a mathematical model that ranks Federal contractor establishments based on an indicator of potential workplace discrimination. The list also includes a number of establishments identified through external Federal contract databases as part of OFCCP's Contracts First Initiative.    The list excludes establishments based on a variety of factors, including, for example, establishments that are currently undergoing a compliance evaluation, were evaluated within the last 24 months, or have received the Secretary of Labor's Opportunity Award or an Exemplary Voluntary Efforts Award within the last three years. Additionally, Federal contractor establishments covered by Functional Affirmative Action Program (FAAP) agreements with OFCCP and those subject to a Corporate Management Compliance Evaluation (CMCE) are selected for evaluation through a separate process.

OFCCP has mailed a Corporate Scheduling Announcement Letter (CSAL) to the Chief Executive Officer (or designated point of contact) of each parent company with more than one establishment listed for the scheduling of a compliance evaluation this FCSS scheduling cycle. Because this is the second release of this scheduling cycle, the list of establishments included with the CSAL will include establishments identified by FCSS in either the first or second scheduling release. As in the past, depending on the workload of individual OFCCP offices, all establishments identified in the attachment to the CSAL may not be scheduled for an evaluation.

For a variety of reasons, it is possible that company establishments other than those identified in the CSAL have been selected for a compliance evaluation during this scheduling cycle. For example, company establishments that are not clearly associated with a parent organization through currently-available EEO-1 Reports, such as those that have been acquired through recent mergers, are not included on the CSAL. In addition, the CSAL does not identify whether an establishment of a company has been selected for evaluation because of a contract award notice, a directed review, as a result of conciliation agreement monitoring or an individual complaint, or as part of the CMCE or FAAP initiatives.

For contractors with multiple establishments, FCSS limits the number of new compliance evaluations identified to 25 new evaluations during a scheduling cycle. The 25-establishment limit does not apply to compliance evaluations scheduled as a result of the agency’s CMCE or FAAP initiatives, contract award notices, directed reviews, conciliation agreement monitoring, or credible reports of an alleged violation of a law or regulation, including complaints.

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STATISTICS TO SHOW OFCCP IS STILL OUT AND ABOUT FINDING DISCRIMINATION, DEFICIENCIES, AND FINANCIAL SETTLEMENTS

February 2008

In Fiscal Year (FY) 2007 OFCCP posted a record amount of financial remedies for job applicants and employees who had been discriminated against by employers.  They also conducted 24% more compliance evaluations of AAPs than in the previous year. OFCCP remains focused on systemic discrimination and the results have proven the strategy to be extremely effective.

  FY           Financial       Workers     Compliance
                 Remedies      Affected     Evaluations

  2007         $51,681,000    22,251        4,923
  2006         $51,525,000    15,273        3,975
  2005         $45,156,000    14,761        2,730

Details can be found on the OFCCP web site: 

http://www.dol.gov/esa/ofccp/enforc07.pdf

(use back arrow to return to this site)

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Effective for new hires after DECEMBER 26, 2007:

Employment Eligibility Verification

Purpose of Form :
All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. Acceptable documents are listed on the back of the form, and detailed below under "Special Instructions."

Number of Pages : 3

Edition Date : 06/05/07

Where to File :
Do not file Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., ICE, Department of Labor).

Filing Fee : $0.00

Special Instructions :
You should have the latest version of the free Adobe Reader to download and use the 2007 version of Form I-9.

Please note the following changes to the Form I-9 process:

·         Five documents have been removed from List A of the List of Acceptable Documents:

Certificate of U.S. Citizenship (Form N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)

Unexpired Employment Authorization Document (I-766)

I-688, I-688A, I-688B, I-766

Note: The Spanish version of Form I-9, available below on this page, may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.

This page can be found at http://www.uscis.gov/i-9

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EMPLOYMENT TESTS AND SELECTION PROCEDURES EEOC FACT SHEET 12/3/2007

Employers often use tests and other selection procedures to screen applicants for hire and employees for promotion. There are many different types of tests and selection procedures, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks.

The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. However, use of these tools can violate the federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age (40 or older). Use of tests and other selection procedures can also violate the federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law.

On May 16, 2007, the EEOC held a public meeting on Employment Testing and Screening. Witnesses addressed legal issues related to the use of employment tests and other selection procedures.

Employer Best Practices for Testing and Selection

Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.

Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under UGESP.

If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.

To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.

• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

For further background on experiences and challenges encountered by employers, employees, and job seekers in testing, see the testimony from the Commission’s meeting on testing, located on the EEOC’s public web site at: http://www.eeoc.gov/abouteeoc/meetings/5-16-07/index.html

________________________________________________________________

August 31, 2007

Interim Guidance on the use of Race and Ethnic Categories in Affirmative Action Programs

Beginning in 2007, employers, including Federal contractors, will report data about the racial, ethnic, and gender composition of their workforces on a revised Standard Form 100, Employer Information Report (commonly referred to as the "EEO-1 Report"). The revised EEO-1 Report must be filed for the first time by September 30, 2007.

OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race and ethnic categories used on the previous EEO-1 Report: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. In light of the changes to the EEO-1 Report, OFCCP is drafting proposed amendments to the recordkeeping and affirmative action program (AAP) regulations at 41 CFR parts 60-1 and 60-2 designed to require the use of consistent race and ethnic categories in the Executive Order 11246, as amended (Executive Order) program.

Comments:  OFCCP will publish a proposed regulatory change in the Federal Register “soon,” which means it will be several months before the final rule is published.  It is not feasible for the government to expect contractors to have it/report it both ways, therefore, OFCCP will allow the new standards (required by EEOC) to be utilized and no citations (based upon the race and ethnic categories) will be issued if an audit is conducted, i.e., contractors are permitted to prepare AAPs using the racial and ethnic categories provided under the OFCCP regulations or the EEOC new categories. 

To review this OFCCP guidance, go to their web site at:

http://www.dol.gov/esa/regs/compliance/ofccp/EEO1_Interim_Guidance.htm

_______________________________________________________________

AUGUST 2007

FINAL RULING: EXPANDS VETERANS COVERAGE AND CHANGES MANDATORY JOB LISTING

The Office of Federal Contract Compliance Programs (OFCCP) published its final rule for Veterans' AAP requirements. Veterans' affirmative action will now be addressed by two separate sections of

41 Code of Federal Regulations (CFR). The current provisions of Part 60-250 will continue to apply to contracts made on or before December 1, 2003.  However, the new section in 41 CFR, Part 60-300, will apply to contracts made after December 1, 2003. The new contract threshold of $100,000 is what contractors must meet before they are required to prepare a written Veterans' AAP.

For a copy of the OFCCP Questions and Answers page on the changes, go to:

http://www.dol.gov/esa/regs/compliance/ofccp/faqs/jvafaqs.htm#Q1    

(you may have to cut and paste if the direct link doesn't work) 

In a nutshell: 

USERRA Compliance:

--USERRA applies to every employer, regardless of size or business sector. There is no minimum number of employees threshold as in many other employment laws.

--All employers must grant military leave, on request of the service member involved. Employers may ask for documentary proof that the leave is military, which often comes in a letter from the unit's commander. Leave can be for required training as well as for extended service.

--Leave is unpaid under the law, although some companies pay leave-takers their salary or the difference between their military and civilian pay, for purposes of both patriotism and retention. Employers must also continue to offer health benefits for up to 24 months. The first 31 days are at the employee's normal rate of contribution. The remainder is handled like COBRA, with the employee liable for 102 percent of the full premium.

--In normal times, the employee's job is protected for up to 5 years of cumulative military service. When leave-takers return, they must be placed in the position they would have had if they had stayed. Credit toward pensions and seniority must be awarded as if the individual never left.

The new regulations are effective September 7, 2007.

Highlighted questions are found below : 

What groups of veterans are covered under part 60-250?

Special disabled veteran --

(i) A veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability:

(A) Rated at 30 percent or more; or

(B) Rated at 10 or 20 percent in the case of a veteran who has been determined under 38 U.S.C. 3106 to have a serious employment handicap; or

(ii) A person who was discharged or released from active duty because of a service-connected disability.

Veteran of the Vietnam era -- A person who

(1) served on active duty for a period of more than 180 days, and was discharged or released therefrom with other than a dishonorable discharge, if any part of such active duty occurred:

(i) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or

(ii) Between August 5, 1964, and May 7, 1975, in all other cases; or

(2) Was discharged or released from active duty for a service-connected disability if any part of such active duty was performed:

(i) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or

(ii) Between August 5, 1964, and May 7, 1975, in all other cases.

Other protected veteran -- a person who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, under laws administered by the Department of Defense.

Recently separated veteran -- any veteran during the one-year period beginning on the date of such veteran's discharge or release from active duty.

What groups of veterans are covered under part 60-300?

Disabled Veteran -- (1) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or (2) A person who was discharged or released from active duty because of a service-connected disability.

Recently separated veteran -- any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.

Armed Forces service medal veteran -- any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.

Other protected veteran -- a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.

What are the new job listing requirements under the Jobs for Veterans Act?

The Jobs for Veterans Act (JVA) and the regulation implementing the JVA at 41 CFR 60-300.5 require that contractors list job openings with the appropriate employment service delivery system. Employment openings subject to the mandatory job listing requirement include all positions except (1) executive and top management positions, (2) positions that will be filled from within the contractor's organization, and (3) positions lasting three days or less. Listing with the appropriate employment service delivery system must be done concurrently with a contractor's use of any other recruitment source or effort.

 Where can I find a link to the state workforce agency job banks?

A link to the state workforce agency job banks is available at http://careeronestop.org/ajbprsjbl/. This link will allow contractors to identify those state workforce agency job banks that accept electronically-transmitted job listings.

 Is a contractor required to list temporary positions?

Employment openings subject to the mandatory job listing requirement include all positions except (1) executive and top management positions, (2) positions that will be filled from within the contractor's organization, and (3) positions lasting three days or less. All other employment openings, including those for full-time employment, temporary employment of more than three days' duration, and part-time employment, are subject to the mandatory listing requirement.

What are my affirmative action obligations as a Federal contractor covered by VEVRAA?

The Equal Employment Opportunity Clause in a Federal contract requires that you practice nondiscrimination and take affirmative action in employment with respect to covered veterans. Affirmative actions are the actions, policies, and procedures designed to achieve equal employment opportunity. The affirmative action obligation requires (1) thorough, systematic efforts to prevent discrimination from occurring or to detect it and eliminate it as promptly as possible; and (2) proactive recruitment and outreach measures. You also may be required to develop a written affirmative action program for each of your establishments if you have 50 or more employees and (1) a contract of $50,000 or more entered into before December 1, 2003 or (2) a contract of $100,000 or more entered into or modified on or after December 1, 2003.

I am a contractor covered under parts 60-250 and 60-300. Must I develop two VEVRAA affirmative action plans (AAPs)?

A contractor that must comply with both sets of VEVRAA regulations need not develop two AAPs. The JVA amendments did not affect the required contents of the written AAP under VEVRAA. Since the contents of the written AAP required under § 60-300.44 and § 60-250.44 are the same, contractors may develop a single AAP that satisfies the requirements of both regulations. The affirmative action efforts of a contractor covered by both sets of regulations must include all veterans protected by law.

_______________________________________

An Explanation of ADA Reasonable Accommodation

Best Practices in HR put out a checklist of the two of the most important (and often confusing) terms in the Americans with Disabilities Act (ADA), "reasonable accommodation," (what an employer is required to do to allow a person with disabilities to perform the essential functions of a job, and "undue hardship," the reason EEOC provides exemption from ADA compliance when making an accommodation that would seriously impair the business.

Here are the examples Best Practices in HR gave for what can be a reasonable accommodation:

• Making existing facilities accessible
• Job restructuring
• Reassignment to a vacant position
• Part-time or modified schedules
• Acquiring or modifying equipment
• Changing the physical layout of the work area
• Removing requirements to stand when a job is performed
• Changing tests, training materials, or policies
• Providing readers or interpreters                                                                
• Eliminating an essential job function
• Lowering production standards (after reasonable accommodations have been instituted)
• Having to provide personal-use items for daily activities (prosthetics, wheelchairs, hearing aids, etc.)
• Arrangements that conflict with the company's seniority system, regardless of whether it is a product of collective bargaining or simply of management decision

Here are examples of "undue hardships," to be considered when making accommodations, as typically viewed by the feds. (Remembering you should always explore all options that would be considered reasonable.)

• The nature and cost of the accommodation needed
• The overall financial resources of the facility making the accommodation
• The number of persons employed at the facility
• The effect on the facility's expenses and resources
• The type of operation, including the structure and function of the workforce, its geographical separateness, and the administrative or physical relationship of the facility making the accommodation                                                 
• The impact of the accommodation on the operation of the facility

These lists are not all-inclusive

______________________________________

ALL POWERFUL OFCCP

From the US Department of Labor/OFCCP website: 

Improvements at OFCCP Produce Record Financial Recoveries for Record Number of American Workers in FY 06

$51,525,235 Recovered for 15,273 Workers Subjected to Discrimination

The Employment Standards Administration’s Office of Federal Contract Compliance Programs
(OFCCP) enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and
the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. These laws
prohibit federal contractors and subcontractors from discriminating in employment based on
race, gender, color, religion, national origin, disability or covered veteran status.

In Fiscal Year 2006, OFCCP recovered a record $51,525,235 for a record 15,273 American
workers who had been subjected to unlawful employment discrimination. Of that record
recovery, 88% was collected in cases of systemic discrimination – those involving a significant
number of workers or applicants subjected to discrimination because of an unlawful employment
practice or policy. The $51.5 million reflects a 14% increase over recoveries in FY 2005 and a
78% increase over FY 2001.

Fiscal Year     Remedies      Compliance Evaluations
  2006          $51,525,235         3,975
  2005          $45,156,462         2,730
  2004          $34,479,294         6,529
  2003          $26,220,356         4,698
  2002          $23,975,000         4,135
  2001          $28,975,000         4,716
Change From
2005 to 2006 14.1% 3.5% 10.3% 45.6%
Change From
2001 to 2006 77.8% 68% 5.9% (15.7%)1

Initiatives at OFCCP Yield Dividends
OFCCP’s initiatives of the last several years are making it a more effective and efficient civil
rights enforcement agency. Compared with years past, OFCCP more quickly and accurately
screens contractor establishments for indicators of potential discrimination with its Active Case
Management (ACM) system. Under ACM, which was fully implemented in each of OFCCP’s
regions in FY 2005, the agency opens more reviews than it did in the past and the agency uses
automated statistical tools to rank and prioritize establishments for further review based on the
probability that discrimination would be uncovered during a full-scale review. OFCCP is using
1 Although OFCCP completed fewer reviews in Fiscal Year 2005 and 2006 than in previous years, its Active Case Management process has effectively enabled it to better target systemic discrimination.
ACM to identify and resolve cases of systemic discrimination with greater frequency. OFCCP is
monitoring a larger portion of the federal contractor universe than it has in the past and it is
prioritizing its resources to addressing the worst offenders of the law. ACM is an effective
mechanism for targeting systemic discrimination: In FY 2005 and 2006, OFCCP closed an
average of 11.7% evaluations with a conciliation agreement, compared with 6.7% of evaluations
closed with a conciliation agreement in FY 2004.

Clearer Guidance and More Enforceable Standards
Since 2001, OFCCP has enacted policy initiatives and directives to provide clearer guidance for
employers and more enforceable standards for OFCCP.

Compensation Standards
In June 2006, OFCCP published in the Federal Register interpretive standards for evaluating
compensation practices, providing contractors with the first definitive guidance on the subject
ever. The standards will provide the agency a stronger basis for pursuing investigations of
possible systemic compensation discrimination because of their transparency and because of
their consistency with court rulings on pay discrimination law. OFCCP also conducted 31
Corporate Management Compliance Evaluations (CMCEs), also known as “Glass Ceiling”
audits, in FY 2006.
Internet Applicant Rule
OFCCP also recently published a rule clarifying provisions of the recordkeeping requirements
for federal contractors concerning who is an “applicant” in the context of the Internet and related
electronic data technologies.

Compliance Assistance Efforts
OFCCP also continued to build upon its comprehensive compliance assistance program,
conducting more than one thousand compliance assistance events in each of the last three years.
OFCCP’s recently enhanced monitoring of the federal contractor universe encourages selfmonitoring by contractors. Compliance assistance outreach helps employers prevent unlawful
discrimination in their workplaces by providing them with the information necessary to
effectively monitor their workplaces.

Strong Enforcement
A significant portion of the recoveries came from cases referred to the Office of the Solicitor
(SOL) for enforcement litigation. In FY 2006, OFCCP obtained over $15 million in financial
remedies for more than 3,340 workers in cases referred to SOL. OFCCP also now involves SOL attorneys earlier in its review process and more often in conciliation meetings with contractors.

Financial Remedies Obtained Through SOL Enforcement:
FY 01: $810,000 FY 02: $130,000 FY 03: $11,756,573 FY 04: $11,756,573 FY 05: $6,389,582 FY 06: $15,104,124  Change from 2001 to 2006:  N/A2
Referred Systemic Discrimination Cases
Discrimination Cases FY 01: 8 FY 02: 4 FY 03: 12 FY 04: 10 FY 05: 16 FY 06: 9 Change From 2001 to 2006:  12.5%

2 The methodology for tracking this data changed between FY 2003 and FY 2004. The pre-2004 figures do not capture the wages secured as a result of cases referred to litigation.

______________________________________________________________________

______________________________________________________________________

OFCCP COMPENSATION ANALYSIS REGULATIONS FINALIZED JUNE 16, 2006

By Bruce Kuehnl, EEO LOGIC, LLC and Carol Dawson, EEO GUIDANCE, Inc.

As of June 16, 2006, specific compensation analysis is a requirement for all federal affirmative

action contractors.  If you have 500 or more employees on your
payroll, you must perform a detailed regression analysis each AAP year to
ensure there is no illegal discrimination. Regression analysis is recommended for companies

with less than 500 employees. 

Regression Analysis is new to many companies. It is a statistical analysis tool  that requires large data bases filled with information; not retained
or used for any other purpose. The Office of Federal Contract Compliance Programs (OFCCP)

will also be conducting its own regression analysis on your program, if you are audited; however, they will need your numbers to do so. If a company performs all of the recommended analysis actions, and no apparent discriminatory problems exist, OFCCP will accept the results and not

audit further. 

As a former OFCCP District/Area Directors, we can tell you that OFCCP Compliance Officers have often had a difficult time with data analysis. Most have not been equipped with the education

or experience to fully understand this statistical analysis. However, OFCCP has hired several 

trained statisticians for each region and they should become more involved with the compensation portion of audits. 

This doesn't mean there are not flaws within these new requirements. HR professionals will be required to maintain data beyond name, grade, etc., as regression requires more specific data on each employee. i.e., education, previous work experience,  previous training, performance ratings, etc. Basically, you will be required to supply any data used to determine how employees are paid. 

We will continue to monitor developments relating to these new regulations,  and will be making further comment on recommendations to our clients. For specific information, go to the US Dept.

of Labor/OFCCP web site at: 

http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-5458.pdf

___________________________

THE CONTINUING SAGA:  EEO-1 AND RACE BY EEOC/ OFCCP

EEO-4 Users have not been instructed to make any changes to their statistics, thus far.  I have been in contact with EEOC’s primary EEO-4 expert and he advises to sit tight and continue what you are doing.

As you should know…the EEOC has issued final regulations about the EEO-1 changes.  They apply to private sector employers with 100 or more employees, and employers with 50 or more workers who are federal contractors, selling goods or services to the U.S. government. Federal Register, Vol. 70, No. 227, Monday, November 28, 2005

The revised form will become effective with the 2007 EEO-1 reporting deadline.  Contractors and other subject employers must file the new format on September 30, 2007.  As always, you can expect that you will be sent the new form with your company information pre-printed (if all goes well).  There are no guidelines requiring contractors to re-survey their employees…at this time; however, that can change before the race changes go into effect in 2007.

 
One of the primary changes contractors should be prepared for is the splitting of Officials & Managers into two categories... Executive/Senior Level Officials & Managers, and First/Mid Level Officials & Managers.  Contractors will have to report their workforce in each of these two new categories beginning at the same time the race changes are executed.

Regarding self identification, some employees/applicants will refuse to identify their race.  In the past, contractors were expected then to make a visual observation and judgment.  This will be much more difficult, given the new categories, which include two of more races. The November 28, 2005

The new EEO-1 splits the Asian race category and now there are both "Asian" and "Native Hawaiian and Other Pacific Islanders."  There is also the addition of a new "Two or More Races" category. 
 
 EEOC states contractors should first ask if someone is Hispanic. 

__________________________________________________________

EEOC GUIDANCE RE: NEW EEO-1 CHANGES FOR 2007:  Q & A

Questions and Answers: Revisions to the EEO-1 Report

Background and Basic Requirements

1. Q: What is the EEO-1 Report?

   A: The EEO-1 Report – formally known as the "Employer Information Report" – is a government form requiring many employers to provide a count of their employees by job category and then by ethnicity, race and gender. The EEO-1 report is submitted to both the EEOC and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP).

2. Q: Who must file the EEO-1 report?

   A: The EEO-1 report must be filed by:

   • Employers with federal government contracts of $50,000 or more and 50 or more employees; and
   • Employers who do not have a federal government contract but have 100 or more employees

3. Q: When must the EEO-1 report be filed?

   A: The EEO-1 report must be filed annually with the EEOC by September 30. It must use employment numbers from any pay period in July through September of that year.

4. Q: When must employers begin using the revised EEO-1 report?

   A: The revised EEO-1 report must be used beginning with the survey due by September 30, 2007. For the surveys due by September 2006, employers should continue to use the EEO-1 report format from previous years. This report is still available on the EEOC’s website at https://apps.eeoc.gov/eeo1/eeo1.jsp

5. Q: How do employers file EEO-1 reports?

   A: We strongly recommend that EEO-1 reports be submitted through the EEO-1 Online Filing System or as an electronically transmitted data file. Paper EEO-1 forms will be generated on request only, and only in extreme cases where Internet access is not available to the employer. Instructions on how to file are available on the EEOC’s website at http://www.eeoc.gov/eeo1survey/howtofile.html.

6. Q: Is EEO-1 data confidential?

   A: Yes. The Commission is required by law to keep individual employer EEO‑1 reports strictly confidential. 42 U.S.C. 2000e-8(e).

7. Q: Where can employers find more information about the EEO-1?

   A: General information about the EEO-1 can be found at the EEOC’s website at http://www.eeoc.gov/eeo1survey/index.html.

Description of the Changes to the New EEO-1 Report

1. Q: What changes are being made to the ethnic and racial categories on the EEO-1 report?

   A: A number of changes are being made to the race and ethnic categories. The revised EEO-1 report:

   • adds a new category titled "Two or more races"
   • divides "Asian or Pacific Islander" into two separate categories: "Asian" and "Native Hawaiian or other Pacific Islander"
   • renames "Black" as "Black or African American"
   • renames "Hispanic" as "Hispanic or Latino"
   • strongly endorses self-identification of race and ethnic categories, as opposed to visual identification by employers

2. Q: What changes are being made to the job categories on the EEO-1 report?

   A: First, the current category of "Officials and Managers" will be divided into two levels based on responsibility and influence within the organization.

   These two levels will be:

   1. Executive/Senior Level Officials and Managers (plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO)
   2. First/Mid-Level Officials and Managers (direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations)

   The revised EEO-1 also will move business and financial occupations from the Officials and Managers category to the Professionals category (to improve data for analyzing trends in mobility of minorities and women within Officials and Managers).

3. Q: What process did the EEOC follow in adopting these revisions to the EEO-1 report?

   A: On June 11, 2003, the EEOC published in the Federal Register a notice of proposed revisions to the EEO-1 and asked for comments in 60 days.

   1. Thirty-two interested parties, including employers, civil rights organizations, human resources and information technology professionals, and other individuals, submitted written comments.
   2. The EEOC held a public hearing at which nine witnesses testified. The record was completed by several written comments submitted subsequent to the hearing.
   3. The EEOC reviewed the comments and made revisions to the EEO-1 report, in coordination with OFCCP.
   4. On November 16, 2005, the Commission voted to approve the revisions to the EEO-1 Report. A final Notice of Submission for Office of Management Budget (OMB) review was published in the Federal Register on November 28, 2005. This notice is available on the Commission's website at http://www.eeoc.gov/eeo1/index.html.
   5. After a 30-day public comment period during which OMB considered all comments submitted, the revised EEO-1 was given final approval.
   6. The final revised EEO-1 report was posted on the Commission's website on January 27, 2006 at http://www.eeoc.gov/eeo1/index.html.

4. Q: Where is more information about the revisions to the EEO-1?

   A: More information about the revised EEO-1 - including the final Notice of Submission for OMB Review which explains the revisions in detail and the Instruction Booklet - is available on the Commission's website at http://www.eeoc.gov/eeo1/index.html . A copy of the final notice can also be found in the November 28, 2005 issue of the Federal Register (70 FR 71294) at http://edocket.access.gpo.gov/2005/05-23359.htm .

Uses of EEO-1 Data

1. Q: What do the EEOC and OFCCP do with the EEO-1 survey data?

   A: Both the EEOC and OFCCP have used the EEO-1 since 1966.

   The EEOC uses the data to support civil rights enforcement. The EEOC also uses the data to analyze employment patterns, such as the representation of female and minority workers within companies, industries, or regions.

   OFCCP uses EEO-1 data to determine which employer facilities to select for compliance evaluations. OFCCP’s system uses statistical assessment of EEO-1 data to select facilities where the likelihood of systematic discrimination is the greatest.

Next Steps

1. Q: What happens now that OMB has approved the revised EEO-1 report?

   A: The final EEO-1 report has been posted on the Commission's website, with the valid OMB number, at http://www.eeoc.gov/eeo1/index.html, along with the Instruction Booklet. Employers must begin to use the newly approved EEO-1 report beginning with the survey due September 30, 2007. (For the survey due September 30, 2006, employers should continue to use the EEO-1 report from previous years, still available on the Commission's website at https://apps.eeoc.gov/eeo1/eeo1.jsp.)

EEOC SHIFTS TARGETED DISCRIMINATION INVESTIGATION
TO SYSTEMIC DISCRIMINATION

The EEOC has approved a program that will refocus the agency's
law enforcement efforts on systemic cases of discrimination rather
than individual cases. The OFCCP has been in this mode for several
years and the question remains: Where do our U.S. workers find relief
from individual one-on-one discrimiation (especially those who cannot
affort an attorney)?

Cari Dominguez, Chair of the Commission, commended Commissioner
Leslie E. Silverman who led an internal agency task force that
prepared the recommendations considered and approved by the entire
Commission at its meeting on April 4, 2006.

Among actions taken by the Commission are:

* Systemic investigations and litigation will be conducted in the
field, and the systemic investigation and litigation units in
headquarters will be eliminated.
* Each district in the field must develop Systemic Plans to ensure
that the Commission is identifying and investigating systemic
discrimination in a coordinated, strategic, effective agency-wide
manner.
* The Office of General Counsel should facilitate the staffing
of systemic cases using a national law firm model, whereby cases
are staffed with employees who have the expertise needed in each
particular case.

Sounds like some serious field training for the EEOC will be coming
down the pike very soon. For additional information, go to the EEOC web site:
www.eeoc.gov/press/4-4-06.html

EEOC ISSUES NEW DISCRIMINATION GUIDELINES
April 2006
The EEOC issued a new Compliance Manual section updating guidance
on how Title VII of the Civil Rights Act of 1964 prohibits
discrimination in employment on the basis of race and color. The
EEOC also issued a question-and-answer fact sheet on
the same topics. The effort is to help employers better respond to
instances of discrimination and to help prevent discrimination
in the first place. The changes appear to be more of a clarification than a change.

Included in the new guidance are the following subjects: Recruiting, Hiring, and Advancement ~
Harassment/Hostile Work Environment ~ Compensation and Other Employment Terms, Conditions and
Privileges ~ Segregation and Classification of Employees ~ Retaliation

For more information, go to the EEOC web site: http://www.eeoc.gov/types/race.html

ARE YOU PROTECTED FROM TITLE VII EMPLOYMENT DISCRIMINATION CLAIMS IF YOU HAVE LESS THAN 15 EMPLOYEES?
February 2006

The correct response should now be "not necessarily." The U.S. Supreme Court recently ruled that federal courts may have jurisdiction to handle Title VII law suits even though the employer had fewer than the 15 required by the Civil Rights Act of 1964 for coverage. Feel free to read the