presented by: john c. fox, esq. fox, wang & morgan p.c. san jose, ca 1 © 2014 fox, wang &...

Presented By:John C. Fox, Esq.

Fox, Wang & Morgan P.C.

San Jose, CA

1

2014 OUTSOLVE ANNUAL SEMINAR

Direction of the OFCCP in 2014

June 13, 2014

© 2014 Fox, Wang & Morgan P.C

2

A. Regulatory Reform……………………………........p. 3

B. Current Contractor Confusion About OFCCP Regs/Policies………………………………………....p. 8

C. Audit Developments of Note………………………p. 36

AGENDA

3

Background:

Where are we?

●5 months before the November 2014 mid-term elections

o Republicans surging

• Continuing Democratic control of Senate now in serious doubt

• President’s popularity sinking

A. Regulatory Reform

4

Background (Cont.): ●2 years, 5 months before the November 2016

Presidential election

o Democratic party political themes:

• Women• Hispanics/“vulnerable” population

o Democrats in Congress no longer supporting the President, forcing him to rely on Executive authority… not Legislative authority or support

A. Regulatory Reform (Cont.)

5

1) Regulatory Reform

● March 24, 2014: Final OFCCP Section 503 and VEVRAA Rules became legally effective

● Two ANPRs (Advanced Notices of Proposed Rulemaking) coming (or, could OFCCP just go to Final?)

- April 8, 2014 “Presidential Memorandum” directed OFCCP to publish a compensation data collection survey instrument within 120 days (i.e. by August 6, 2014)

- President Obama’s April 8, 2014 Amendment to Executive Order 11246 “Non-Retaliation for Disclosure of Compensation Information” required OFCCP to prohibit contractors from retaliating against applicants and employees who discuss their wages.


6

Timeline:

Who knows?

- OMB a very slow and backlogged “weigh station”- 60 day comment period, at least, coming post-

publication (if ANPR)- OFCCP could publish the Final Rule anytime thereafter

(if not already published in Final)• Split platter? Final Rule as to compensation data collection

tool and ANPR as to non-retaliation?

- Legally effective date of Final Rules could be delayed to anytime after 30 days after publication date [but OFCCP would probably exercise its discretion to delay implementation to the beginning of FY 2016 (i.e. October 1, 2015]


7

Non-Retaliation- How many of you already allow employees to

gossip about their pay?- What does this rule add to the NLRA Rule

prohibiting ER retaliation for EEs from engaging in “concerted protected activity?”

• Supervisors• Applicants• Those in probationary work status and not yet in

Bargaining Unit


8

Question 1:

OFCCP’s New Regulations Require Federal Kors to Make Their E.O. 11246 AAPs Available to Applicants and Employees Upon Request. T/F

Answer = False.

- 503/VEVRAA (only) so require

- OFCCP Published No New Regulations Pursuant to Executive Order 11246

B. Current Contractor Confusion About OFCCP Regs/Policies

9

Question 2:

Fed Kors Must Now Annually Undertake Self-Evaluations of the Effectiveness of the Totality of Their Affirmative Action Efforts to Meet Their “Utilization Goal” for the Disabled and Their “Benchmarks” for Protected Veterans? T/F

Answer = False.

OFCCP’s New 503/VEVRAA Rules Require Annual Self Evaluations of Only a contractor’s Outreach and Recruitment Efforts

B. Current Contractor Confusion (Cont.)

10

Question 2 (Cont.):

“(3) Assessment of external outreach and recruitment efforts. The Contractor shall, on an annual basis, review the outreach and recruitment efforts it has taken over the previous twelve months to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities. (emphases added) The contractor shall document each evaluation, including… (cont.)


11

Question 2 (Cont.):

“…at a minimum the criteria it used to evaluate the effectiveness of each effort and the contractor’s conclusion as to whether each effort was effective. Among these criteria shall be that data collected pursuant to paragraph (k) of this section for the current year and the two most recent previous years. The contractor's conclusion as to the effectiveness of its outreach efforts must be reasonable as determined by the OFCCP in light of these regulations…” (emphases added) (cont.)


12

Question 2 (Cont.):

“If the contractor concludes the totality of its efforts were not effective in identifying and recruiting qualified individuals with disabilities, it shall identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations.”

41 C.F.R.§ 60-741.44(f)(3)(503)41 C.F.R.§ 60-300.44(f)(3)(VEVRAA)These regulations are titled: “(3) Assessment of external outreach and recruitment efforts.”


13

Question 3:

The Executive Order President Obama signed on Equal Pay Day amended Executive Order 11246 to require Federal Kors to provide Equal Pay to women? T/F

Answer = No. Only allows “yakety-yak” employees.(b) A new paragraph (3) is added to read as follows:

“The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation…” (cont.)


14

Question 3 (Cont.):

“…of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information unless such disclosure is in response to a formal complaint or charge, in furtherance…(cont.)


15

Question 3 (Cont.):

“… of an investigation, proceeding, hearing or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information.”


16

Question 4:

Federal Contractors must now measure the effectiveness of their Affirmative Action Programs for Protected Veterans and for Individuals with Disabilities? T/F

Answer = True.

“(h) Audit and reporting system.(1) The contractor shall design and implement an audit and reporting system that will:

(i) Measure the effectiveness of the contractors affirmative action program;…”

See 41 C.F.R. § 60-741.44(h)(503)

41 C.F.R. § 60-300.44(h)(VEVRAA)


17

Question 5:

The duty to audit your 503/VEVRAA AAPs is an old requirement just repeated in OFCCP’s new regulations? T/F

Answer = False. It’s a new requirement.


18

Question 6:

What do you now have to do as part of this annual audit of your 503/VEVRAA AAPs?

Nothing? T/F

Answer = False

“(h)Audit and reporting system.(1) The contractor shall design and implement an audit and reporting system that will:

(ii)Indicate any need for remedial action; (iii) Determine the degree to which the contractor’s objectives have been attained; (iv) Determine…(cont.)


19

Question 6 (Cont.):

“…whether known individuals with disabilities have had the opportunity to participate in all company sponsored educational training, recreational, and social activities; (v) Document the actions taken to comply with the obligations of paragraphs (h)(1)(i) through (v) of this section, and retain these documents as employment records subject to the record keeping requirements of § 60-741.80.”


20

Question 7:

There are Four Fast Ways to Internalize All the New OFCCP 503/VEVRAA Regs? T/F

Answer = True!

1) Read only the regulations (not Preamble or Economic Justifications)

2) Listen to the National Employment Law Institute (NELI) Webinars I taught on January 23, 2014 (Segment A) and especially January 30, 2014 (Segment B = a transactional approach to the regulations) still available through NELI.


21

Question 7 (Cont.):

3) Listen to the Direct Employers “Transactional Approach” Webinar Candee Chambers and I taught February 12, 2014. Beg Candee if you are not a Direct Employers member.

4) Read my 40+ Model Forms, Analyses, Clauses, Evaluations, and Notices, etc. in the Fox, Wang & Morgan Contractor Conversion Kit.


22

Question 8:

The main problem preventing Federal Kors from hiring Protected Veterans is that there are not enough Blue Collar jobs in the private sector in America to absorb them into the private sector? T/F

Answer = True


23

Question 9:

98% of Americans worked on the farm in 1900? T/F

Answer = True


24

Question 10:

2% of Americans worked on the farm in 2000? T/F

Answer = True. 98% of Americans now work off the farm.

So, in 100 years, America went from an agrarian to an industrial society.


25

Question 11:

Only 13% of U.S. Armed Forces personnel have a Bachelor’s Degree or Better? T/F

Answer = True


26

Question 12:

60% of all new jobs in America require a BA or better? T/F

Answer = True.

So, 60% of the new jobs we are creating require BA/BS or better, but only about 13% of PVs have a BA/BS, or better


27

Question 13:

There are currently > 10M people unemployed in America? T/F

Answer = True. 10.5M


28

Question 14:

There are currently over 7M people working Part Time who are interested/available to work full time? T/F

Answer = True. 7.5M


29

Question 15:

There are over 3M “discouraged workers” in America (meaning they no longer qualify for unemployment benefits and the Bureau of Labor Statistics has no way to accurately count or find them). T/F

Answer = True. Estimated 3.5M

So, we are something in the neighborhood of 20M fulltime jobs short of demand… mostly blue collar jobs.


30

Question 16:

A massive retraining effort is needed in America? T/F

Answer = True


31

Question 17:

The number of Kors who will likely calculate their own customized Protected Veterans “Benchmarks” is fewer than 100? T/F

Answer = Probably.- Why? What bad happens to a Federal Kor which

does not achieve its Benchmark?

a) Pat Shiu gives that Kor a public whipping to end all public whippings?


32

Question 17 (Cont.):

b) The contractor has to undertake more outreach efforts which were previously only suggested, but not required.

c) Nothing bad happens

Answer: c) Nothing bad happens

- NOTE: Alternative outreach efforts attach ONLY if you deem your outreach efforts not sufficient. See 41.C.F.R. § 60-300.44(f)


33

Question 18:

- Kors which fail to meet their OFCCP Benchmark must:

- pay monetary fines? T/F

- demonstrate “Good Faith Efforts” to achieve the Benchmark? T/F

- be debarred? T/F

Answer = False. None of the above.


34

Question 18 (Cont.):

- See 41 C.F.R. § 60-300.45 (Benchmarks for hiring.)- It says nothing!! No penalty for failing to reach

Benchmark

NOTE: Should Kors undertake “adverse impact” analyses on their total selection of Protected Veterans? (No, of course not!)

• Give me 3 reasons why not: ____________

- OFCCP VEVRAA Architecture is:- Outreach

• If not “effective,” OFCCP regs specify your next year’s outreach efforts (see above)

- Annual audit (see above)


35

Question 19:

OFCCP has never debarred a Kor over the Kor’s opposition? T/F

Answer = True


36

1) This Administration Does Not Believe in Enforcing The Law

- Rather, this Administration believes it is its duty to “s-t--r---e----t-----c------h the law• NLRB (Laif Solomon). Wage-Hour. OSHA. EEOC.• “Impact” litigation model

• Who at OFCCP did impact litigation?

- Result to Kors is what?• Arguing against new/novel OFCCP

positions/arguments in audits- Class-type disparate treatment (“disparity”) analyses- Damages- Compensation claims: details of regression analyses

C. Audit Developments of Note

37

2) OFCCP’s Solicitors are now actually undertaking (not advising re) all audits OFCCP views as having potential for systemic discrimination resolution

- Budget bigger dollars to defend Audits

3) Desk Audits run riot

- Numerous, sequential SDRs

- Running time on audits averaging > 1 year

C. Audit Developments of Note (Cont.)

38

4) There are still only 5 common OFCCP audit violations:

1. Failure of Outreach/Recruitment: Disabled

2. Failure of Outreach/Recruitment: Protected Veterans

3. Failure to hire entry-level production laborers

4. Failure to list all available jobs with ESDS

5. Failure to undertake “adverse impact” analyses (is this a regulatory requirement?)

5) Don’t sign CAs “just to get done” with the audit and OFCCP

- Recidivism algorithm triggers more audits next year

C. Audit Developments of Note (Cont.)

39

Questions

40

Thank You!

presented by: john c. fox, esq. fox, wang & morgan p.c. san jose, ca 1 © 2014 fox, wang &...

Documents

c slide

support slide

anpr ofccp

final ofccp section

ofccp regspolicies

bargaining unit slide

recruitment efforts

effective date of final