eeo-1 form reporting for 2018 and trends in ofccp compliance · eeo-1 form reporting for 2018 and...

EEO-1 Form Reporting for 2018

and Trends in OFCCP Compliance

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mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-833-3953email: [email protected] • website: www.lorman.com • seminar id: 399886

Daniel V. Duff IIIJackson Lewis P.C.

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EEO-1 Form Reporting for 2018 and Trends in

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mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-833-3953email: [email protected] • website: www.lorman.com • seminar id: 399886

Prepared By:Daniel V. Duff III

Jackson Lewis P.C.

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2© 2017 Jackson Lewis P.C. 2

THE MATERIALS CONTAINED IN THISPRESENTATION WERE PREPARED BY THELAW FIRM OF JACKSON LEWIS P.C. FOR THEPARTICIPANTS’ OWN REFERENCE INCONNECTION WITH EDUCATION SEMINARSPRESENTED BY JACKSON LEWISLLP. ATTENDEES SHOULD CONSULT WITHCOUNSEL BEFORE TAKING ANY ACTIONSAND SHOULD NOT CONSIDER THESEMATERIALS OR DISCUSSIONS THEREABOUTTO BE LEGAL OR OTHER ADVICE.


Represents management exclusively in every aspect ofemployment, benefits, labor, and immigration law and relatedlitigation

Over 800 attorneys in 56 locations nationwide

Recommended in U.S. Legal 500 for Labor and EmploymentLitigation, Labor-Management Relations and Workplace andEmployment Counseling. Ranked in the First Tier nationally in theU.S. News - Best Lawyers® “Best Law Firms.”

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Using specially designed proprietary software, our diversepractice group of approximately 40 lawyers, statisticians anddata analysts prepares over 3,000 affirmative action plans(“AAPs”) annually for our federal contactor cients.

Since 2011, we have defended over 350 OFCCP audits,including successful defense of Corporate Management(“Glass Ceiling”) Compliance Evaluations. As a law firm, weoffer more than consulting services, we offer strategicthinking and sophisticated legal representation.


Daniel V. Duff III is a Principal in the Long Island office of Jackson Lewis P.C., and amember of the Firm’s Affirmative Action Compliance and OFCCP Defense Practice Group.

Mr. Duff has over eighteen years of experience in advising clients in a wide array ofemployment law and litigation areas, with a focus on affirmation action, diversity, EEO andwage & hour matters. He has defended numerous OFCCP compliance evaluations andonsites, as well as handled cases/administrative proceedings involving claims of race,gender, age, disability and sex discrimination including class and collective action cases.Mr. Duff has broad experience dealing with the OFCCP, EEOC, as well as a variety of stateand local employment fair practice agencies. He has significant appellate practiceexperience, including defending appeals to the New York State Court of Appeals and theUnited States Supreme Court.

Mr. Duff is admitted to practice in New York State, the U.S. District Court for the Southern,Eastern and Western Districts of New York and the Supreme Court of the United States.

Mr. Duff received his B.A. in History from the College of the Holy Cross and his J.D. fromCornell Law School.

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The materials contained in this presentation wereprepared by the law firm of Jackson Lewis P.C. for theparticipants’ reference in connection with educationseminars presented by Jackson Lewis P.C. Attendeesshould consult with counsel before taking any actionsand should not consider these materials or discussionsabout these materials to be legal or other advice.


EEO-1 Form: Reporting for 2017

Changes for the EEO-1 Report for 2018

OFCCP Audits: What You Need to Know

Directive 307 and OFCCP’s Methods for AnalyzingCompensation

OFCCP’s “New” Scheduling Letter.

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EEO-1 Form: Reporting for 2017?


Hispanic or Latino - A person of Cuban, Mexican, Puerto Rican, South or CentralAmerican, or other Spanish culture or origin, regardless of race

White (Not Hispanic or Latino) – A person having origins in any of the originalpeoples of Europe, the Middle East, or North Africa

Black or African-American (Not Hispanic or Latino) - A person having origins inany of the black racial groups of Africa

Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) - A personhaving origins in any of the original peoples of Hawaii, Guam, Samoa, or otherPacific Islands

Asian (Not Hispanic or Latino) - A person having origins in any of the originalpeoples of the Far East, Southeast Asia, or the Indian Subcontinent, including, forexample, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the PhilippineIslands, Thailand, and Vietnam

American Indian or Alaska Native (Not Hispanic or Latino) - A person havingorigins in any of the original peoples of North and South America (including CentralAmerica), and who maintain tribal affiliation or community attachment

Two or More Races – All persons who identify with more than one of the above fiveraces

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“Officials and Managers” divided into two levels:

o 1.1 Executive/Senior Level Officials and Managers

o 1.2 First/Mid Level Officials and Managers

Professionals

Technicians

Sales Workers

Administrative Support Workers

Craft Workers

Operatives

Laborers and Helpers

Service Workers

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What Should I Do?!?


1. Make Job Category Changes

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2. Use Race and Ethnicity Information Already on Record

3. To Survey or Not to Survey


Distribute to all employees invitation to self- identify race and gender – ASAP

─ Set return deadline

Obtain race/gender info of employees who decline to self-ID

─ Visual Determination

─ Existing Employment Records

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Invitation to Self-Identify Race and Gender

− To comply with governmental record-keeping and reportingrequirements

− Voluntary

− Confidential

− Kept separate from personnel file

− Not considered for employment purposes


Acquisition/Merger/Spin-Off?

― [email protected]

― [email protected]

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Failure to file or late filing could result in EEOC motion tocompel

― If successful, EEOC could seek attorneys’ fees and costs

Willfully making false statements punishable by fine or upto 5 years’ imprisonment


EEOC MODIFICATIONS TO EEO-1 REPORT TO

COLLECT PAY DATA FROM EMPLOYERS

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New EEO-1 reports, if not rescinded, will require:

W-2 Earnings

For each of the 10 EEO-1 categories, the total number ofemployees by race/ethnicity and gender that fall in each of the12 pay ranges established by the EEOC (1,680 options)

Based on W-2 earnings for a 12-month calendar year period

Hours worked

Total number of hours worked by the employees separately ineach pay band for race/ethnicity and gender


EEOC and OFCCP will:

Use pay data to assess complaints of discrimination

Focus agency investigations

Identify existing pay disparities that may warrant furtherexamination (focused investigations)

EEOC plans to publish employers’ aggregated data byindustry and geography - “will help employers inconducting their own analysis of their pay practices tofacilitate voluntary compliance.”

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EEOC publishing confidential pay data by industry andgeographic area may:

Identify pay data by employer

Only employer in industry in geographic area

One of few employers in industry in geographic area:competitive advantage

Identify pay data by employee

Only employee in EEO-1 category at all

Only employee by race/ethnicity and gender in EEO-1 category


HOW TO PREPARE FOR AN OFCCP AUDIT

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For the past several years, OFCCP only gave cursoryattention to the programmatic aspects of AAPcompliance, like good faith outreach efforts

But under the current administration, this haschanged…

OFCCP is now aggressively scrutinizing employer’sgood faith outreach efforts to the female, minority,veteran, and disabled communities


Employers must be able to demonstrate commitmentto outreach

OFCCP now regularly demands detailed informationon how many applicants were referred by diversityrecruitment sources and of these, how many wereinterviewed, hired, etc.

If OFCCP finds the contractor was deficient inrecordkeeping and/or outreach, the Agency will issuetechnical violations

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Identify strong diversity sources for females, minorities, disabledand veterans

Monitor the number and quality of applicants referred by diversityrecruitment sources and, as appropriate, change these sources


DIRECTIVE 307 AND OFCCP’S NEW METHODS

FOR ANALYZING COMPENSATION

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President Obama, 1.28.14:

“Today, women make up about half our workforce. Butthey still make 77 cents for every dollar a man earns.That is wrong, and in 2014, it’s an embarrassment. Awoman deserves equal pay for equal work.”

Relative Wages

White Males Females BlackFemales

HispanicFemales

$1.00 77¢ 64¢ 55¢


Per the new Directive, in audits:

─ Based on information received from the employer, OFCCP will develop PayAnalysis Groups (“PAGs”)

─ Defined as a “group of employees (potentially from multiple job titles, units,categories and/or job groups) who are comparable for purposes of the contractor’spay practices”

─ “May be based on groups larger than individual job titles and AAP job groups”

Why?

─ “By combining employees into pay analysis groups, using statisticalcontrols as necessary for title or level, OFCCP is able to more easilyidentify potential systemic discrimination . . .”

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Directive states that “summary compensation data

submitted in a format other than by AAP job group, or

the contractor’s existing pay grade, level or band

system, generally is not acceptable for analysis”


OFCCP will closely scrutinize variables before acceptingthem in a regression model

In regression analyses, OFCCP will test the explanatoryvariables to ensure they are predictive of pay and “notpotentially tainted by discrimination”

If OFCCP concludes a variable causes adverse impact oris not consistently applied, it may be thrown out

─ Performance

─ Time in Position

─ Education

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OFCCP is looking for “areas of concentration” by race orgender in lower-paying jobs

What should you be doing?─ Look at your entry-level jobs for “areas of concentration” (by race and

gender) and be prepared to explain differences in pay


OFCCP will prepare regression analyses by larger PAGs

─ Job group

─ Salary grade, level or band

─ Exempt/non-exempt

─ Any cut mentioned in policies, interviews, or contained in data

OFCCP will conduct cohort analyses and follow-up withemployee or job title specific questions

─ E.g., Why is employee/females making less thanemployee/males in job title (and provide documentation)?

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You should be doing the same – Proactively andunder Privilege

Proactive analyses will allow you to:─ Make necessary adjustments to correct pay

─ Annotate job titles where appropriate

─ Focus OFCCP down the right path when they ask for the data inlarger groupings – you already know what group(s) look best

─ Prepare and provide documentation to support differences in pay

─ Know what factors affect (are highly correlated to) pay foranswering policy-related inquiries and interview questions


OFCCP’S “NEW”

SCHEDULING LETTER

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The New Scheduling Letter and Itemized Listing

Now effective for all audits

11 new items on the Itemized Listing

2 items substantially changed on the Itemized Listing

Compliance Officers are now trained on the new letter

Note: Even audits under old letters investigated under new letter


TOP 10 ENFORCEMENT CHANGES UNDER THE

NEW LETTER

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Common request: Provide documentation of all jobs listed with the state

Mountainside Office example: “Provide copies of eachjob order and the job description. Indicate if applicants were provided by the employment center, and if so, the disposition of each applicant.”

Regulations do not require that we create documentation if it does not already exist

Note: Check with your recruiters and/or third-party vendor as to what they can provide


EEO Policy Stmt. & Availability of AAPs for Inspection

How, when, and where applicants and employees may view AAP

Common requests: Description and/or picture

Labor Union Notification

Documentation notify labor union of EEO obligations

Contract or letters

Subcontractor Notification

Documentation notify subcontractors of EEO obligations

Send letters on an annual basis

Ensure in appropriate contracts, especially staffing agencies

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Must notify applicants of how they may request an accommodation in the online application process

Common OFCCP requests/actions:

Description or screen shot of accessibility/accommodation notice

Review online themselves on Careers webpage

Request accommodation through process

How to respond

Put up accommodation policy on Careers site

Designate person responsible for answering every day --response time is key


Include this language on the Careers site:

[Company] endeavors to make [WEBSITE URL] accessible to any and allusers. If you would like to contact us regarding the accessibility of our websiteor need assistance completing the application process, please contact[CONTACT NAME/TITLE/DEPT] at [PHONE NUMBER, INCLUDE TTY/TDDLINES IF APPLICABLE] or [E-MAIL ADDRESS OR LINK]. This contactinformation is for accommodation requests only and cannot be used to inquireabout the status of applications.

[Company] is an equal opportunity employer. Qualified applicants will receiveconsideration for employment without regard to race, color, religion, sex, sexualorientation, gender identity, national origin, disability or protected veteranstatus. For our EEO Policy Statement, please click here. If you’d like moreinformation on your EEO rights under the law, please click here.

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Provide applicant pre- and post-offer self–ID forms

Why? New veteran and disability regulations

Provide: Race, gender, veteran, and disability forms

• Disability must be OFCCP form; cannot be altered

• Veterans form is now the same for pre- and post-offer (Describecategories of protected veterans and yes/no/I choose not toanswer)

Provide application

Looking for process issues (tests, mental/physical)

Also check for questions re: criminal history, veteran status,unemployment status, etc.

o Less is more


Itemized Listing requires that we include information ondate assessment was performed, actions taken, andnext date to be completed

Employers can address through plan text or narrative

More specific date completed: Most recent annual plan year if nothing else has been done

Be careful of “actions taken” to submit in an audit

Next date to be completed: Next annual plan year

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Itemized Listing requests evidence of most recentassessment of physical and mental qualifications

Date of assessment

Actions taken

Date of next scheduled assessment

Regulations require: “Schedule for the periodic review ofall physical and mental job qualification standards” toensure they are job-related for the position

OFCCP wants to see regular (annual) review

Response: Reviewed with job postings if nothing moreformal done


Provide accommodation and leave policies

Provide accommodation log/information onaccommodations requested and results

All accommodations requested, granted (yes/no), if not, why not

How were similar requests handled

Documentation & contact information

Find out if any accommodations have been denied and, if so, why. That is where OFCCP will focus.

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New Items 7 (Sec 503) and 11(VEVRAA):

“Results of the evaluation of the effectiveness of the outreachand recruitment efforts” for the disabled and covered veterans

Common requests:

Provide a description of all outreach activities your companyparticipated in during the plan year

Provide documentation of outreach activities to veterans &disabled individuals (and women & minorities)

Provide the name and contact information for the organizationscontacted


OFCCP has said “failure to meet goals/benchmarks isnot a violation; failure to try is.”

Show OFCCP you are trying:

Generally say what worked well

Note areas where continue to work with source(s)

Describe areas where changes were made/different source(s) added

Try to focus OFCCP on areas where goals exist

Get reports/data to use, if necessary

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Provide sub-minority personnel activity data for applicants, hires,promotions, terminations (Item 18)

Legal basis under the Uniform Guidelines:

“A selection rate for any race, sex, or ethnic group which is less thanfour-fifths (4/5) (or eighty percent) of the rate for the group with thehighest rate will generally be regarded by the Federal enforcementagencies as evidence of adverse impact….”

Therefore, OFCCP can run analyses for highest rate vs. other ratesand even combine them together (ex. Hispanic v. White + Black)

But, VF Jeanswear: OFCCP should not run “all other” analyses (ex.Asian v. All Others)


AnalysisRate for

Group on Left

Rate for Group on

Right

StandardDeviation

Shortfall

Minority v. Non-Minority 9/100.09

1/100.01

-2.596 4

Hispanic v. Black 8/20.40

1/80.01

5.416 6

Hispanic v. White 8/20.40

1/100.01

6.045 6

Hispanic v. Black + White

8/20.40

2/180.01

7.570 7

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Provide “unknown” race/gender applicants

How will they analyze?

Low response rate

What is good enough?

If so, could suggest:

Not soliciting race and gender

Not requesting at appropriate time in the process

Not tracking/maintaining


For each employee (on the same date as the workforce analysis), provide:

Provide data electronically

Provide compensation policies (not required per FAQ)

Unique Identifier Date of Hire Locality

Race/Ethnic Category Gender Hours in a TypicalWorkweek

Job Title Base Compensation Overtime

EEO-1 Category Bonuses Merit

Job Group Commissions Incentives

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Common compensation-related requests

Get the data as quickly as possible

Establish Pay Analysis Groups (“PAGs”)

Request copies of compensation policies

Conduct compensation manager interview (even before receipt of data)

Some COs want to “get everything” before running analyses


Best practices:

Analyses

• Run regression and cohort analyses prior to submission

• Know what factors affect pay in each group

• Know what PAGs look best (job group, grade, job title, etc.)

Submission

• Submit data electronically password protected

• Do not break out categories (ex. types of bonuses)

• Do not provide additional fields of information unless they are necessary to bring under significance in analyses

• Do not submit compensation policies

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Interview

Prepare

• Discuss factors in analyses affecting pay (note: not necessarily pay for performance)

• Discuss groupings most advantageous

• Minimize discretionary nature, where applicable

Treat it like a deposition

• Less is more

• Do not offer more than requested

• Do not refer to additional documents not produced unless already reviewed by and ok’d for production


Stay up to date on the latest from OFCCP:

Consider signing up for our blog

http://www.affirmativeactionlawadvisor.com/

A source of insights, news and strategy on affirmative action and EEO compliance matters

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QUESTIONS?


Please contact us with any questions:

Daniel V. Duff, [email protected]

Jackson Lewis P.C.www.jacksonlewis.com

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