OFCCP Updates Sex Discrimination Rule

On June 14, 2016, the Office of Federal Contract Compliance Programs announced publication of a Final Rule in the Federal Register that sets forth the requirements that covered contractors must meet under the provisions of Executive Order 11246 prohibiting sex discrimination in employment. This Final Rule updates sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces. The Final Rule deals with a variety of sex–based barriers to equal employment and fair pay, including compensation discrimination, sexual harassment, hostile work environments, failure to provide workplace accommodations for pregnant workers, and gender identity and family caregiving discrimination.

The Final Rule becomes effective on August 15, 2016.

Read more here.

Updated Affirmative Action in Employment Thresholds

Porter Wright Morris & Arthur LLP, Lexology

Federal Acquisition Regulatory Council (FAR) has updated the jurisdictional thresholds for coverage under affirmative action laws for federal contractors and subcontractors. The regulations have not been amended, but an inflationary adjustment statute applicable to the Section 503 of the Rehabilitation Act of 1973 (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) regulations allows the FAR to adjust the jurisdictional thresholds periodically for inflation. The Section 503 basic coverage threshold was increased from $10,000 to $15,000, and the VEVRAA basic coverage threshold was increased from $100,000 to $150,000. This could result in some contractors and subcontractors no longer being covered by affirmative action laws; however, the thresholds remain so low that it is unlikely to affect many contractors.

Read the story here.

Related content:

• Federal Contractors and Subcontractors Top 10 Affirmative Action Checklist (SmithAmundsen LLC)

Manheim Companies Agree to Voluntary Debarment to Settle OFCCP Complaint

Outsolve!


Overview of Article. On September 13, 2011, the U.S. Department of Labor (“DOL”) Administrative Review Board signed an Order approving a Consent Decree between the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) and Manheim Auctions, Inc. (“Manheim Auctions”), a wholesale vehicle remarketer, and Manheim Auctions Government Services, LLC d/b/a/Manheim Government Services (“MAGS”), to settle an OFCCP Administrative Complaint against Manheim. In June of this year, a DOL Administrative Law Judge (“ALJ”) ruled that Manheim Auctions, which had more than 50 employees but no Federal contracts, operated as a “single entity” with MAGS, a subsidiary with many Federal contracts but with fewer than 50 employees, therefore resulting in both entities being subject to OFCCP jurisdiction and affirmative action requirements. Under the terms of the Consent Decree, Manheim Auctions and MAG agreed to voluntary debarment.

Full Story: http://www.outsolve-hr.com/newsdetail.aspx?id=109

To see the Administrative Review Board order, click here: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/OFC/11_060.OFCP.PDF

Affirmative action: 45 years in the making

Lexology.com
Taft Stettinius & Hollister LLP
Patricia Anderson Pryor
USA
September 24 2010

Today marks the 45th anniversary of Executive Order 11246, the Executive Order that requires employers that do business with the federal government, either directly or as a subcontractor, to undertake various affirmative action efforts. As the Office of Federal Contractor Compliance (“OFCCP”) holds anniversary parties to celebrate this milestone, it is an ideal time for employers to review whether they are a government contractor and, for those that are, to make sure their affirmative action policies and programs are up to date.
Every employer should review whether it has any government contracts or subcontracts. All too often the human resource professional, who should be administering the affirmative action obligations, is the last to know that the employer has entered into a contract with a federal government agency or contractor.
Moreover, in recent years, the OFCCP has expanded the universe of contractors routinely subject to its audits. For example, the OFCCP now takes the position that many healthcare organizations are federal contractors subject to the affirmative action requirements. See Health Care Providers and Other Companies May Unknowingly Be Government Subcontractors. The OFCCP is also increasing the attention it pays to construction contractors, due in part to the stimulus funds that have been spent.

Full Story: http://www.lexology.com/library/detail.aspx?g=274d6b87-2dbc-476a-8ea9-f81094ba52a9

Celebrating OFCCP’s 45th Anniversary

U.S. Department of Labor
September 23, 2010 Articles

As We Celebrate OFCCP's 45th Anniversary, a Pioneer Reminisces About The Early Days of Women in Construction
In a June 1965 commencement address at Washington, DC’s Howard University, President Lyndon Johnson shared his strong belief in civil rights and nondiscriminatory practices when he said:
“Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”
Read Johnson's Speech
View Johnson's Speech
On September 24, 1965, President Lyndon Johnson signed Executive Order 11246, granting supervision of federal contract compliance to the Secretary of Labor, and creating the department’s first Office of Federal Contract Compliance. The EO ordered federal departments and agencies to impose non-discrimination and affirmative action rules in all federal contracts and federally- assisted construction projects. Later, on October 5, 1978, President Jimmy Carter consolidated all affirmative action enforcement actions into DOL by signing into law Executive Order 12086.
Read Johnson's Executive Order
Read Carter's Executive Order

Full Story: http://www.dol.gov/_sec/newsletter/2010/20100923-3.htm

This Week in Black History: Executive Order 11246

The Washington Informer
This Week in Black History - Week of Sept. 24 - Sept. 30
Written by Robert Taylor

September 24, 1965 - President Lyndon Johnson issues what is generally considered the nation’s first affirmative action order - Executive Order #11246. It required companies receiving federal construction contracts to ensure equality in the hiring of minorities. Despite a disastrous war in Vietnam, which would eventually force his resignation, the Southern-born Johnson generally supported a host of legislative and executive efforts beneficial to Blacks.

http://www.washingtoninformer.com/index.php?option=com_content&view=article&id=4559:this-week-in-black-history&catid=67:black-history&Itemid=140

Managing a Successful Affirmative Action Program – ‘The Big Secret’

By Julia Mendez Fuentes, PHR, CELS

I am often asked by federal contractors and subcontractors to share my “biggest secret” for a successful affirmative action program (AAP).

Come closer while I whisper the secret in your ear — ACCOUNTABILITY!

The importance of accountability cannot be over emphasized. It’s about building accountability into your AAP, not just with your own personnel but with the recruiters who send you candidates to initiate the hiring process.

In many organizations, only a single person, who is typically designated as the EEO Officer, is responsible for the preparation of the AAP when there may be an entire army of people who do the hiring.

No matter how many EEO Officers you might have in your organization, you must remember that the AAP cannot reach its potential without the assistance of every manager who is responsible for making personnel decisions.

That’s why it’s so important to hold managers and recruiters accountable for the success of the AAP.

Keep in mind, you are required by Executive Order 11246 to develop action-oriented programs that are specific and results oriented. This makes it easier for you to apply objective performance measures to determine the success of your efforts against your placement goals.

As you may know, placement goals are targets that your organization has identified for filling vacancies — in certain job groups, and at a rate set by your organization based on the number of minority and/or female incumbents that would reasonably be expected given the recruitment, hiring, promotion and transfer practices of your organization.

For example, if you have a placement goal related to minorities in the engineering job group, your action-oriented program might be to start an internship program for engineering students from historically black universities. This promotes on-the-job training and familiarity with your organization by potential minority candidates — two things that may make such individuals more likely to apply for job openings with your organization upon graduation.

Keeping with this example, another action-oriented program might be to post job openings in minority-based publications that cater to engineers.

It is not acceptable to merely create an action plan that calls for an increase in recruiting efforts. Such a vague action plan would more than likely form the basis of a technical violation during an OFCCP compliance review — not to mention how much it would complicate your ability to objectively measure the success of your program.

How do you get managers to assist you in reaching your placement goals? …Hold them accountable.

It may not be reasonable to hold managers accountable for progress toward placement goals if they haven’t been properly trained.

Only about half of the participants who attended a recent Webinar sponsored by Peopleclick Authoria reported that managers are held accountable for progress within the AAP.

What does this say about the other half?

It’s critical to hold management meetings at least annually as required by Affirmative Action regulations — not only to educate managers on AAP terminology, but also to guide managers on what they can do to meet goals set by the organization.

Your organization should also perform statistical analyses at the management level. This will help determine how much progress each manager is making and identify gaps where more can be done.

If your office manager, for example, has a goal related to minorities within the clerical job group, that goal must be communicated and the manager held accountable for developing action-oriented steps.

Ask the manager to keep track of things like the internal training given to employees to develop the necessary skills to apply for positions within a particular job as well as efforts related to career fairs, internship programs and any relevant communication programs like an employee referral program. Then formulate a plan for evaluating the effectiveness of these efforts. Perhaps a log of sorts, which tracks the specific effort, such as attending a career fair at XYZ University, and then keeping track of all of the candidates that came from that recruitment effort and the disposition for each candidate (e.g. did not meet qualifications/did not interview, hired, declined job offer, etc.). This process will assist management with assessing which good-faith efforts were most effective.

If minorities are not applying for clerical positions, is it the manager’s fault? If the manager is also responsible for recruiting applicants, then you should certainly investigate possible causes for the absence of qualified candidates.

Start with a review of the availability of minorities within the clerical EEO classification within the recruitment area. Perhaps the 2000 Census EEO File reports a low availability of minorities with skills you are looking for in a particular job group.

In this case, it would make sense to see a low pool of minority applicants. It would be another story if the Census EEO File shows that 60% of the clerical population with requisite skills to be minorities.

As noted earlier, any designated recruiters used by your organization should also be held accountable for meeting placement goals.

Recruiters should not only focus their efforts on targeted sources such as career shows, on-line recruitment services etc., but those sources should also be targeted to filling the specific types of positions in which you are deficient.

It’s not sufficient for a recruiter to attract 100 minorities to apply for a particular position if the applicants are not qualified. The quality of candidates is just as important — if not more so — than the quantity of candidates.

Some 54% of the attendees at a Webinar I recently presented, Beyond the Written AAP, also reported that they hold management meetings once a year to discuss their AAP while 19% said that they have meetings twice a year. Another 14% hold meetings more than twice a year while the remainder of participants didn’t have any management meetings.

How comfortable would you feel about meeting your AAP goals and objectives knowing that managers have not been properly trained on their obligations and don’t even know the goals and objectives for the year? You cannot expect any employee to perform to the best of their ability under such conditions.

Webinar participants were asked if their organization tied management performance evaluations to AAP goals and objectives.

Surprisingly, 6% of participants answered in the affirmative; 79% indicated that they did not incorporate AAP objectives on performance evaluations and 15% did not know.

Without accountability, there is no incentive for managers to assist the EEO Officer in making progress toward the company’s AAP goals and objectives.

Many times, the key to getting buy-in from managers and recruiters is to ensure that top management conveys the importance of meeting placement goals.

Having your CEO, chairman, president and/or business unit manager articulate a commitment to affirmative action is an enormous plus. But there’s no substitute for properly training managers and recruiters on how to interpret the AAP and then holding them accountable for success.

Julia Mendez Fuentes is Director of Workforce Compliance and Diversity Solutions for Peopleclick Research Institute. For the past 15 years, Ms. Fuentes has assisted companies in the areas of compliance equal opportunity and affirmative action laws and regulations as well as assisting with diversity efforts. She leads the Metairie (New Orleans), LA team as well as the Diversity Council for the organization. She has assisted numerous clients in successfully preparing for an OFCCP compliance review. Ms. Fuentes also speaks on various topics related to EEO, affirmative action and diversity and has spoken on numerous occasions at events including local, regional and national conferences, seminars and webinars. For more information regarding upcoming webinars, training offerings, or speaking engagements, email Julia.Fuentes@peopleclickauthoria.com. Ms. Mendez Fuentes is also a member of the AAAA Board of Directors.