Fulbright Forefront

The NEW OFCCP:Preparing for Changes

and Handling an Audit in 2013

Fulbright Forefront

The NEW OFCCP:Preparing for Changes

and Handling an Audit in 2013

Continuing Education InformationContinuing Education Information

We have applied for one hour of California, Minnesota, Texas and Virginia CLE, New York non-transitional CLE credit, and HRCI credit. Newly admitted New York attorneys may not receive non-transitional CLE credit.

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A certificate of attendance will be supplied to those who:1. Participate in the web seminar by phone and the

web.2. Complete the online evaluation that we will send

tomorrow.

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Administrative InformationAdministrative Information

Today’s program is conducted in a listen-only mode. To ask an online question at any time throughout the program, simply click on the question mark icon located on the tool bar. We will try to answer questions as time permits.

Everything we say today is opinion. We are not dispensing legal advice, and listening does not establish an attorney-client relationship. This discussion is off the record. Anything we say cannot be quoted without our prior express written permission.

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ModeratorModerator

Brian Greig PartnerFulbright & Jaworski L.L.P.

Chair of Fulbright’s Labor and Employment Department worldwide

Over thirty-five years of experience in labor and employment counseling, litigation including many jury trials, and arbitration

Clients include major public and privately-held companies in a variety of industries

Certified in L&E by the Texas Board of Legal Certification

Recognized in The Best Lawyers in America and Texas Super Lawyers

Fulbright’s Affirmative Action TeamFulbright’s Affirmative Action Team

Cost-effective, high-quality affirmative action plans

Audit support based on legal expertise and understanding of the players

Proactive approach to identifying and resolving adverse impact

Focus on keeping clients up-to-date on latest developments

Today’s SpeakersToday’s Speakers

Shafeeqa Watkins GiarrataniSenior AssociateFulbright & Jaworski L.L.P.

Attorney specializing in OFCCP regulations & affirmative action audits

Successfully handled numerous audits for federal contractors from desk audit to conciliation

Lead counsel in several potentially multi-million dollar audits

Named Texas “Rising Star” Named “Leading Lawyer” in

Chambers USA Guide 2013

Today’s SpeakersToday’s Speakers

Lisa KaiserSenior Affirmative Action Plan Project ManagerKairos Services

Former OFCCP Director of Operations for the Southwest and Rocky Mountain Region

Former Dallas OFCCP District Office Director Former San Antonio OFCCP Assistant District

Director Veteran who served on active duty for the U.S.

Army as a Judge Advocate in the U.S., Germany, Middle East and South Korea

Today’s SpeakersToday’s Speakers

Mark Nagel, Director of Employment Practices, Best Buy Global Business Services & Best Buy Co. Inc. Handles Best Buy’s employment

practices globally, including OFCCP compliance, employee relations, wage and hour, and I-9/E-Verify compliance

Board Member of North Texas ILG Previously in Human Resources

Management at Target

AgendaAgenda

The “New” OFCCP

New Developments at the OFCCP

● Compensation

● Proposed Veterans/Disabled Regulations

● New Audit Procedures

● Review of Recent Conciliation Agreements

Best Practices

The “New” OFCCP Behind The ScenesThe “New” OFCCP Behind The Scenes

Aggressive ● Results-oriented: “Good faith efforts

alone are not sufficient” ● More in-depth audits● More conciliation agreements and large

penalties for findings of discrimination Litigation-oriented

● OFCCP Director Patricia Shiu is a former civil rights attorney for employees

Focuses● Hiring and Compensation Cases● Employment of veterans● Employment of individuals with disabilities Patricia Shiu, OFCCP Director

New Developments at the OFCCP

New Developments at the OFCCP

Out With The Old: Pay Guidelines Out With The Old: Pay Guidelines

Feb. 28, 2013: OFCCP rescinded the 2006 Compensation Standards (Standards) and Voluntary Guidelines.

No intent to replace the standards with a formal rule. OFCCP suggests that employers should rely on a host

of other non-regulatory materials (such as compliance manuals, trainings, and directives) for guidance on how to prepare pay analyses and respond to pay investigations.

In With The New: Directive 307 In With The New: Directive 307

Replaces all previous compensation directives and only roadmap to how the OFCCP will conduct future compensation evaluations. Conducts Preliminary Analysis of Summary Data (if appropriate) Conducts an Analysis of Individual Employee-Level Data Determines the Approach from a Range of Investigative and Analytical

Tools Considers All Employment Practices that May Lead to Compensation

Disparities Develops Pay Analysis Groups Investigates Systemic, Small Group and Individual Discrimination Reviews and Tests Factors Before Accepting the Factors for Analysis Conducts Onsite Investigation, Offsite Analysis, and Refinement of the

Model

Proposed Regulations: Veterans/DisabledProposed Regulations: Veterans/Disabled

Hiring benchmarks

Contractor must provide hiring “benchmark” for vets based on various data points

Workforce composition goal: 7% disabled across job groups

Pre-offer self identification

Additional outreach efforts

Additional data collection and recordkeeping

Reasonable accommodation requirements

When will the proposed regulations pass?When will the proposed regulations pass?

Currently at OMB

But, OFCCP offices are already moving forward on some requirements

Requests for veteran/disabled linkages (including contact information)

More detailed, specific requests for outreach efforts (dates, websites, results)

Self-identification inquiries

Inquiries re: pre-employment physicals

Questions regarding accommodations fulfilled/denied

Medical restrictions in positions

New Audit Procedures – More Detail & Focus on Technical ComplianceNew Audit Procedures – More Detail & Focus on Technical Compliance

Technical Compliance

State Employment Listing Verification

Posters

Notification to employees that they can view AAP

EEO clause in subcontracts/purchase orders and job ads (including examples)

Detail Probes regarding AAP statements and compensation

Policy review

EEOC Charges

New Audit Procedures –Background ChecksNew Audit Procedures –Background Checks

Directive 306 – Issued January 29, 2013

OFCCP adopts EEOC Enforcement Guidance on Background Checks

Blanket rule regarding criminal convictions can create a disparate impact in hiring

Requires federal contractors to use individualized assessment in exclusions from hiring based on criminal background

Focus Remains on HiringFocus Remains on Hiring

Hiring cases for entry-level positions still the focus area

Great focus on hiring as remedy

Example:

December 2012 – Clougherty Packing Co. (sex discrimination in hiring)

Almost $450,000 in back pay to 2,000 female job applicants

700 job offers

Prepare Now – Best Practices

Prepare Now – Best Practices

Prepare Now – Compensation AuditsPrepare Now – Compensation Audits

Run compensation data by AAP job group, job title, and grade

Review “outliers” and determine explanationsLook for variables to explain any statistical

significanceDecide how data will be submitted in desk audit and

any “extra” factors that will be providedDetermine best “model”Review data by employment phase

Prepare Now – Hiring CasesPrepare Now – Hiring Cases

Carefully review all employment activity prior to submission

Understand if there is any adverse impact by job title or job groupby gender or minority statusby minority sub-group

Resolve issues beforehand or be ready to explainEntry-level positions or positions with few basic

qualifications are greatest risk area

Prepare Now – Vets/Disabled RegulationsPrepare Now – Vets/Disabled Regulations

Review outreach efforts

Document date, name, contact information and description of contact made

Ensure your company has documentation of job postings at local unemployment office

Determine workforce composition for veterans/disabled

Training

Maintain and review accommodation records

Check medical conditions/physical requirements of job positions for adverse impact

Review online applicant procedures for accommodations

Prepare Now – Detailed Audits/Background ChecksPrepare Now – Detailed Audits/Background Checks Confirm every statement in AAP narrative is accurate

Check postings regularly

Confirm employee manual is updated

Ensure your company has a notification to employees regarding viewing AAP

Audit inclusion of EEO clause in subcontracts/purchase orders and job advertisements

Background Checks

Review policy

Convictions vs. arrests

Blanket refusal vs. case-by-case

When You ThinkOFCCP Compliance,

Think Fulbright.TM

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