Thursday, October 23, 2014

Response to Schuyler's Post on OFCCP NPRM on Equal Pay

Data to accomplish this objective also could be gathered in a third way, not mentioned in your post but raised by several commenters who responded to the 2011 Advance Notice of Proposed Rulemaking.  The OFCCP has an existing database of compensation information submitted by contractors who have been audited.  This database should cover most if not all of the universe of industries over which the agency has jurisdiction.  Audit data has several advantages over any information the OFCCP could reasonably hope to collect in an annual Equal Pay Report.  Audit compensation information is annualized, allowing comparisons on a one-to-one basis.  The information also is organized in accordance with classifications determined by contractors to be most appropriate.  Going forward under the new scheduling letter, the OFCCP will have even more detailed individualized compensation data.  If the objective is to derive industry-wide estimates, this pre-existing data source could surely provide all of the information OFCCP would need to accomplish that end.
Your suggestion also raises some interesting parallels to the methods used by the Occupational Safety and Health Administration (OSHA) to target employers for inspection.  Some important lessons might be learned from this history.  OSHA has a long track record of selecting industries for “emphasis programs” based on data indicating elevated injury, illness, or fatality rates.  OSHA relies heavily on existing BLS surveys to identify these high-hazard industries, much like the second alternative suggested in your comment.  OSHA, however, also uses a Site-Specific Targeting (SST) program to identify individual workplaces within specific industries that it will inspect.  Data for the SST program come from a separate OSHA Data Initiative (“ODI”) survey.  In contrast to the BLS survey, the ODI collects information on an individual establishment level.  Unlike the proposed OFCCP data collection effort, however, the ODI survey is not sent to every employer under OSHA’s jurisdiction, but rather to a randomly selected sample of employers.  This sample is weighted to increase the selection likelihood for employers from high-hazard industries, aligning nicely with the objectives suggested in your comment.  If the OFCCP feels the need for a means to look beyond aggregated industry data in order to hone in on specific contractors, one wonders if a similar sampling approach might work.
                                                                        Dean Sparlin
                                                                        Sparlin Law Office, PLLC

Monday, October 20, 2014

Austrian Conference Explores Global Diversity Issues

SALZBURG, Austria — For the past few years, Kimberly Reyes has been spending a lot of time thinking about disparity, access and equity issues at American colleges and universities. 

Reyes, 33, a third-year Ph.D. student in higher education at the University of Michigan’s Center for the Study of Higher and Postsecondary Education, was one of more than fifty participants who journeyed to this small European city to take part in the Salzburg Global Seminar “Students at the Margins and the Institutions that Serve Them: A Global Perspective.” 

For Reyes, the weeklong experience of trading ideas with scholars concerned about the plight of disadvantaged students across the world has only strengthened her resolve to want to make a lasting impact with students in the United States.

For more click here

Gender Gap in IT Security

Women who rise to the position of chief security information officer are already a rare sight in higher education, but over the next decade and a half, they may become an endangered species.

The 2014 Higher Education Chief Information Security Officer Study, released this week, contains grim news about the future of university IT offices, where men already far outnumber women. Four in every five CISOs who are women are 51 years or older, and two in five plan to retire within the next 10 years.

Read more here

The 'Yes Means Yes' World

When the sexual assault prevention group Culture of Respect attended the Dartmouth Summit on Sexual Assaultin July to promote its forthcoming website, the group went by a different name. The nonprofit passed out business cards and marketing all emblazoned with the phrase “No Means No.”

For the last two decades, that’s been the slogan of choice for sexual assault prevention efforts, and just a few months ago it seemed like a perfect fit for the new organization. But in the weeks leading up to No Means No’s official launch, the organization began having second thoughts.

“The swiftly evolving conversation about defining sexual assault signaled to us that we needed to reframe our name as something more positive,” said Allison Korman, the group’s executive director. “And it’s even possible that ‘No means no’ will be an outdated or irrelevant concept in 10 years. Students may not have even heard of the phrase by then.”

Read more here

OCR issues guidance on Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000(d) et seq, prohibits discrimination on the basis of race, color or national origin in programs and activities receiving federal financial assistance. School districts that receive federal funds must not intentionally discriminate on the basis of race, color or national origin, and must not implement facially neutral policies that have the unjustified effect of discriminating against students on these bases.  The United States Department of Education, Office for Civil Rights (OCR) is charged with enforcing Title VI. 

Read more here

New executive orders and OFCCP rules for federal contractors

Executive Order 11478

On July 21, President Obama issued Executive Order 11478, in relevant part, to prohibit federal contractors and subcontractors (government contractors) from discriminating against their employees based on their sexual orientation and gender identity. Executive Order 11478 amends Executive Order 11246, which already provided protection to employees based on race, color, religion, gender and national origin.

Additionally, the new amendment requires federal contractors to:

  1. Take affirmative action to ensure that applicants are employed and employees are treated during employment without regard to their sexual orientation and gender identity;
  2. Amend job advertisements and solicitations for advancement to state that all qualified applicants will receive consideration for employment without regard to sexual orientation or gender identity; and
  3. Revise the nondiscrimination clause in their vendor and supplier subcontracts to ban sexual orientation and gender identity discrimination.

Although the order is effective immediately, the Secretary of Labor has 90 days from the date of the order to issue regulations outlining employers’ obligations under the order. As such, contractors should commence reviewing their policies and contracts in the interim to identify which ones will need to be changed once the final regulations are implemented.

Read more here

The Proposed NPRM: Providing Incentives to Aspire to an Acceptable Pay Gap



On August 6, 2014, the U.S. Department of Labor issued a proposal to collect summary data on how federal contractors and subcontractors pay their employees. This Notice of Proposed Rulemaking was published in the Federal Register on August 8, and is open for public comment until November 6, 2014.


The NPRM proposes the use of compensation provided by federal contractors to establish an “industry standard” for pay gaps between men and women, and minorities and non-minorities, against which each federal contractor will be compared.  But the establishment of an “industry standard” for pay gaps will send the wrong message about disparities in compensation, and this method could ultimately undermine efforts to eliminate pay differentials.


First, the “industry standard” could be perceived to be an acceptable pay gap, which would provide a disincentive for employers to close pay gaps which are smaller than the industry standard.  Only those contractors whose pay disparities fall below this level will have the incentive to act, as the ones whose pay differential is above the mean have little risk of being audited.  Thus, a contractor could have a discriminatory pay practice, but if the overall differential is higher than the “industry standard,” they are not likely to be concerned about the consequences.


Second, because the established “industry standard” pay gap will reflect approximately half (depending on the level of the disparity) of the contractors falling below par, the level is not one to which we want to be aspiring.  In fact, that will become the new normal, and over time we would find contractors below the line pushing their salaries up, but only to the average of the industry, which is a measure tainted by bad actors.  Granted, over time the pay gap would likely be reduced.  But progressing in this half-life-like manner will never eliminate the paydisparities.


I suggest a different approach.  


One alternative is to collect all of the compensation information (and I will leave it to my colleagues to comment on how that should be done), aggregate the data by industry (but not necessarily by geography), and determine which industry has the most significant pay gaps.  Then compare the federal contractors in that industry to the “industry standard,” and focus on everyone “below the line.”  This approach differs than what is proposed in several respects.


First, the emphasis here is on transforming compensation in an industry – not just individual contractors.  The only reason contractors “below the line” are targeted is to better focus OFCCP’s limited resources.  


Second, the “industry standard” measure itself should be kept confidential.  This encourages all federal contractors in the industry to evaluate their own compensation system, regardless of where they stand in relation to the industry standard.  We don’t want to provide disincentives for correcting pay disparitiesthat are above the line.


Another alternative is to use data from the Bureau of Labor Statistics (BLS) to determine which industry to target.  BLS uses a sophisticated sampling methodology to analyze pay in various industries, and this method has been tested over time to provide results upon which we have come to rely.  Once the industries were identified, OFCCP could request the compensation data for federal contractors in those specific industries.  Then the data could be triaged to determine which companies would be subject to audit.


This method would also lessen the burden on federal contractors, as it would only require summary compensation data from the federal contractors in the targeted industries.  Further, it would use limited OFCCP resources, as there would be no need to compile the data to establish “industry standard” pay gaps.  Finally, because the BLS data is already accessible, the process could begin sooner, putting a reduction in the pay gap between men and women, and minorities and non-minorities, on a faster pace.


By Marilynn Schuyler

Schuyler Affirmative Action Practice