Posts Tagged ‘affirmative action’

The Truth About Affirmative Action…

Tuesday, January 26th, 2016
Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

In today’s post, CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, sheds lights on what exactly affirmative action is and what it means for your business.

I get asked all the time “What is affirmative action?”.  You’d think since I am the manager of affirmative action services at CAI that I wouldn’t have difficulty in answering that question.  You’d think that, right?

The truth is I do struggle to answer this question.  Not because I don’t know what it is but more because I’m not sure what answer the person asking really wants. Are they interested in a quick summary just highlighting a few main points?  Or do they want more detailed information including all requirements and analysis.  I can provide both.  I tend to provide more detail.  For those of you who have spoken to me – you’re welcome….or I’m sorry.   What I’d like to address here is high-level information.

What Affirmative Action IS:

Affirmative action is based and builds on the principles of equal opportunity laws.  It is intended to provide opportunities for defined protected groups and give them equal access as others in the population. Groups covered by affirmative action are: race, color, religion, gender, gender identity, sexual orientation, national origin, disability and veteran status.  Affirmation action laws are intended to:

  • Help eliminate discriminated members of groups who have been historically disadvantaged
  • Provide proactive action-oriented programs to include members of protected groups in employment
  • Assist in removing barriers for employment and level the playing field in the workplace

What Affirmative Action is NOT:

To me almost equally important as identifying what affirmative action is, is to educate people on what it is not. There is often a misunderstanding of what companies must do as affirmative action employers. Affirmative action is not:

  • Quotas/ Set aside programs
  • Preferential treatment and selection
  • Different standards
  • Selection of unqualified individuals

Affirmative Action Programs (AAPs)

If certain headcount/contract amounts are met, federal contractors and subcontractors are required to develop written affirmative action programs.  These programs are intended to be a management tool to ensure that equal employment opportunity is occurring in the workforce.  These programs should identify the extra steps contractors are implementing to include covered, protected groups. Written programs must be developed on an annual basis and include:

  • AAPs include analysis of the contractor’s workforce. Analysis includes comparing the demographics of the company in relation to the demographics of qualified individuals in the labor pool.  Where the company is underrepresented, placement goals are established (women, minorities, individuals with disabilities, protected veterans).
  • AAPs include a narrative which is a communication tool for what the contractor/subcontract has done or intends to do for the AAP year. This includes the company’s good faith efforts to address under-representation or impediments in employment practices.
  • Contractors must also annually review employment transactions (hires, promotions, terminations) that occurred in the prior twelve months,   often referred to as adverse impact analysis.  The analysis is used to determine if there are significant differences in selection rates between groups (females vs. males, minorities vs. non-minorities).
  • Contractors are also required to annually review compensation practices/systems to evaluate if there are gender, race or ethnicity based disparities.

While the AAPs could be viewed as a paperwork exercise, they really can be much more.  Use them as the tools they are intended to be to identify and address areas in which there are opportunities for good faith improvement.  Improvements to processes are definitely recommended where adverse impact exists in employment transactions or where unexplained disparities exist in compensation as monetary liability exists for companies in those areas in the event of a government audit.  Develop realistic and attainable goals for your organization by using your developed AAP as your guide.

If you need help understanding the requirements or how to implement your company’s program, please contact Kaleigh Ferraro, Manager of Affirmative Action Services, at kaleigh.ferraro@captial.org or 919.713.5241.  We also invite you to sign up for our free one hour webinar AAP: Preparing Data for Analysis on Feb. 9th.

Affirmative Action Protections for Gender Identity and Sexual Orientation

Thursday, July 30th, 2015

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares important information regarding the workplace and the protections of those who are in the LGBT community.  Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services
Kaleigh Ferraro, Manager, Affirmative Action Services

Recently there has been a lot of activity regarding the protections and requirements for people who are in the LGBT (lesbian, gay, bisexual, transgender) community. This activity has occurred with state regulations regarding same sex marriage and rulings by the US Supreme Court about the validity of these marriages. The Department of Labor adopted a new definition of spouse (on March 27, 2015) to include those people who are part of legal same sex marriages. This will afford spouses in same-sex marriages the same FMLA rights as traditional marriages.

The White House has taken another approach to provide and expand protections to individuals in the LGBT community. President Obama issued Executive Order 13672 prohibiting discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. In response to President Obama’s request to expand protections to these groups, the Office of Federal Contracts Compliance Programs (OFCCP) issued final rule amending Executive Order 11246. This update became effective on April 8, 2015.

What that means for companies covered by affirmative action regulations is that they will need to include sexual orientation and gender identity as protected groups just as they currently do for race, color, religion, sex and national origin. If you are a federal contractor or subcontractor, you should be doing:

 

  • Update EEO/AA policies to include gender identity and sexual orientation
  • Update handbook and other policies to include gender identity and sexual orientation
  • Update EO Clauses and required language in subcontracts and purchase orders to include gender identity and sexual orientation
  • Update any other documentation where protected classifications are listed to include gender identity and sexual orientation
  • Train managers and personnel responsible for employment decisions on the newly protected categories

As states and federal government continue to move in the direction of a more diverse and inclusive environment, so should companies. Federal contractors may also want to consider conducting training for workforce on these protections and ensure there is a culture of acceptance and non-discrimination for these newly protected classifications.

If you have any questions about these changes or how it affects your organization feel free to contact me, Kaleigh Ferraro, directly at 919‑713‑5241 or kaleigh.ferraro@capital.org.

 

New Self-Identification Form for Disability Status Released by OFCCP

Tuesday, March 4th, 2014

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

On March 24, 2014, new regulations take effect regarding affirmative action requirements for federal contractors. One of the major changes is the requirement that federal contractors and subcontractors solicit disability status for employees and applicants. The Office of Federal Contract Compliance Programs (OFCCP) requires companies to use a specific and unaltered form, which was just approved and released. You can access the form at http://1.usa.gov/NQtyhn.

This voluntary self-identification form must be used by federal contractors to solicit disability status of applicants both pre-offer and post-offer. Solicitation of applicants using this form may be delayed until the contractors first AAP update after March 2014. This same form will be used to survey current employees at least every five years. Contractors must survey their current employees within the first year of the regulation changes (March 24, 2014 to March 24, 2015). For companies utilizing online applicant systems, the exact language of this form may be used online. If used electronically, it must include the OMB Control number, expiration date and use a sans serif font of at least 11 point.

If you have any questions about the affirmative action regulation changes or use of this form, please contact Kaleigh Ferraro at 919‑713‑5241 or kaleigh.ferraro@capital.org

Affirmative Action: Changes to Self-Identification of Applicants

Tuesday, December 10th, 2013

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

New regulations regarding affirmative action efforts for protected veterans and individuals with disabilities become effective March 24, 2014. The regulation changes for Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act will require federal contractors and subcontractors to make significant changes to recruiting and outreach efforts for veterans and individuals with disabilities.

One of the new and most controversial mandates will require federal contractors to solicit voluntary self-identification of veteran and disability status for applicants. This is a major shift for employers as the Americans with Disabilities Act (ADA) previously prohibited such inquiries until after a job offer. The new rules require a voluntary self-identification opportunity be provided both before a job offer and after a job offer.

If you are a federal contractor or subcontractor, what does this mean for you and when will you have to make changes to your recruiting process? Until March 24, 2014, you can continue the same process that you have been following. You should continue to provide the opportunity for applicants to self-identify as protected veterans and individuals with disabilities after you have made a job offer.

When you implement the new self-identification requirements will depend on your Affirmative Action Plan year. If your Affirmative Action Plan is in effect prior to March 24, 2014, you can delay the pre-job offer solicitation of veteran and disabled status until the start of your next plan year. Contractors with AAPs starting after March 2014, must begin pre-job offer solicitation at the beginning of their 2014 AAP.

The Office of Federal Contract Compliance Programs (OFCCP) has provided sample self-identification forms that contractors may use. There are two forms available for solicitation of veteran status. The pre-job offer form requests applicants only identify as “protected veteran.” The post-job offer form provides the ability to identify for the specific veteran categories.

The OFCCP will also provide a standardized form for self-identification as an individual with a disability. Contractors will be required to use the language provided by the OFCCP. However, this form has not been released yet. You should note that if an applicant identifies that he or she has a disability, the organization should inquire if an accommodation is necessary.

CAI will continue to provide information about the new Affirmative Action requirements and help you understand the impact on your organization. For more information on these new rules, join CAI for a webinar presenting these changes on December 18, 2013. Register at http://j.mp/AAP3. If you have additional questions or would like to discuss these new rules, please contact Kaleigh Ferraro at 919‑713‑5241 or kaleigh.ferraro@capital.org.

 

OFCCP Announces Major Changes for Government Contractors

Tuesday, October 22nd, 2013

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh blogThe last couple of months have been busy for the Office of Federal Contract Compliance Programs (OFCCP). They have announced several changes that will affect the requirements and practices of federal contractors and subcontractors. What are the changes and how do they affect you?

The first change was the release of the revised Federal Contract Compliance Manual (FCCM). This is the guide that compliance officers at OFCCP use during audits of contractors. These revisions have been in the works for some time now. The FCCM does not contain new rules or requirements but rather provides guidance to auditors on how to conduct offsite and onsite audits. The FCCM may serve as a helpful document for contractors to review in order to understand the policies and practices of the OFCCP during audits. This revised manual is intended to standardize the investigations between regions, offices and even compliance officers. If you’d like to see the revised manual, visit http://j.mp/fc-cm.

The OFCCP also announced on August 27, final rules for Section 503 of the Rehabilitation Act and Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). The initial proposed rules were issued about two years ago and the OFCCP had been saying that the final rules would happen soon. These final rules will require federal contractors to make significant changes to current practices and analysis. These rules were published in the Federal Register on September 24, 2013 and become effective 180 days after the publish date.

What this means to companies with Affirmative Action Plans is that AAPs in place prior to March 24, 2014 can be developed using the old (current) rules. AAPs developed after March 24, 2014 will need to incorporate the new requirements in the plans. Below are some of the major changes affecting government contractors. CAI will provide more information and training on these new requirements as well as provide suggestions on how organizations can implement necessary changes.

Changes to VEVRAA

  • Rescission of 41 CFR Part 60-250: The Final Rule rescinds the outdated 41 CFR Part 60-250 in its entirety. However, veterans that were formerly protected only under Part 60-250 will still be protected from discrimination under the revised 41 CFR Part 60-300.
  • Hiring benchmarks: The Final Rule requires that contractors establish annual hiring benchmarks for protected veterans. Contractors must use one of two methods to establish their benchmarks. Contractors may choose to establish a benchmark equal to the national percentage of veterans in the civilian labor force (currently eight percent), which will be published and updated annually by OFCCP. Alternatively, contractors may establish their own benchmarks using certain data from the Bureau of Labor Statistics (BLS) and Veterans’ Employment and Training Service/Employment and Training Administration (VETS/ETA) that will also be published by OFCCP, as well other factors that reflect the contractor’s unique hiring circumstances. The data will be posted in the Benchmark Database (coming soon).
  • Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.
  • Invitation to self-identify: The Final Rule requires that contractors invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process. The Final Rule includes sample invitations to self-identify that contractors may use.
  • Incorporation of the EO clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.
  • Job listings: The Final Rule clarifies that when listing their job openings, contractors must provide job opening information to the state or local job service in the format required, so that the job service can make the jobs available to veteran job seekers.
  • Records access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either onsite or offsite, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

Changes to Section 503 of the Rehabilitation Act

  • Utilization goal: The Final Rule establishes a nationwide seven percent utilization goal for qualified Individuals with Disabilities (IWDs). Contractors will apply the goal to each of their job groups, or to their entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.
  • Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.
  • Invitation to self-identify: The Final Rule requires that contractors invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Final Rule also requires that contractors invite their employees to self-identify as IWDs every five years, using the prescribed language. This language will be posted on the OFCCP website (coming soon).
  • Incorporation of the EO clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.
  • Records access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either onsite or offsite, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.
  • ADAAA: The Final Rule implements changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of “disability” and certain nondiscrimination provisions of the implementing regulations.

Please feel free to contact me directly with questions at kaleigh.ferraro@capital.org or 919‑713‑5241.

OFCCP Releases New Compensation Directive for Government Contractors

Tuesday, April 2nd, 2013

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh blogEffective February 28, 2013, the Office of Federal Contract Compliance Programs (OFCCP) officially rescinded their previous guidelines on compensation. This rescission comes as no surprise since they had published in January 2011 a Notice of Proposed Rescission. The OFCCP stated the previous guidelines were too limiting and “constrained OFCCP’s ability to investigate pay discrimination to the full extent permitted by law.” These previous guidelines also conflicted with other government agencies’ investigated pay discrepancies.

The OFCCP replaced the rescinded guidelines with Directive 307, which is supposed to provide contractors clear insight into how the OFCCP will conduct compensation reviews during audits. However, this “clear guidance” doesn’t really live up to this billing. What it actually does is list multiple protocols and factors the OFCCP may use during a compensation review. The OFCCP makes it clear they may use any number of these methodologies during audits and they will be determined on a case-by-case basis. This of course, gives the OFCCP a great deal of flexibility during investigations and makes it extremely difficult for contractors to determine if they are “compliant” based on the OFCCP’s methods.

The consequence of this new Directive is that it affects contractors’ compensation policies/procedures and data at both the macro and micro levels. Employers must be able to address how their practices influence compensation, as well as prepare for specific individual analysis. The changes to the compensation review procedures have the potential to cause companies additional angst during audits.

The following is a high level overview of some of the changes and the issues they may cause employers:

  • There are eight possible “steps” to be taken when conducting the compensation portion of an OFCCP audit and potentially additional consideration factors within the steps.
    • It is unclear which “step” the OFCCP will actually use during an investigation and/or the progression through any and all of these steps. The OFCCP also may change direction at any point during their review.
  • The OFCCP has indicated that several of their analyses will be conducted by broad groupings of employees and not just at the position title level.
    • With wide groupings such as pay grades, AAP job groups or pay analysis groupings being used for analysis, there is a greater opportunity for pay discrepancies to be identified during the OFCCP’s investigation.
  • Any documentation regarding company policies or practices that may be related to compensation may be called into question during the OFCCP’s review. Examples include but are not limited to performance systems, commission, overtime hours, training, etc.
    • This more detailed review of company practices will likely cause OFCCP to uncover issues with inconsistent pay practices as well as other employment policies.
  • Regardless of findings and whether or not an issue is identified during previous “steps” or reviews, the OFCCP has indicated they may continue their investigation into contractors’ compensation.
    • This seems to indicate that OFCCP audits will be comprehensive and involve many steps and reviews and will likely be a long and drawn-out (and potentially expensive) process.

The Directive seems to serve as an indication that the compensation reviews conducted by the OFCCP will cause many challenges among the contractor community, especially initially. To review Directive 307 in its entirety, visit http://j.mp/pd-gc.

If you would like to discuss these new guidelines in detail and the potential impact on your organization, please contact me directly at 919‑713‑5241 or kaleigh.ferraro@capital.org. CAI provides AAP plan preparation, OFCCP audit assistance, onsite training and webinars for hundreds of companies each year. We are happy to share our expertise with you!

 

Affirmative Action Planning Basics for Employers

Tuesday, March 22nd, 2011

If your company has 50 or more employees and holds a federal government contract or subcontract of $50,000 or more, you must prepare a written affirmative action plan (AAP) and update it annually. These plans are audited by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

So if you are considering a government contract or subcontract, or if you are a government contractor or subcontractor, and would like more information on affirmative action requirements, the slide presentation below highlights the details you need to know.  If you would like additional information please contact CAI’s AAP team members Kaleigh Ferraro or Madison Gray at (919) 878-9222.

The OFCCP and Affirmative Action: Seven Things Employers Need to Know

Thursday, October 7th, 2010

CAI was pleased to have John Burgin of the Ogletree, Deakins, Nash, Smoak & Stewart, P.C. law firm provide his expertise and insight on Affirmative Action and the Office of Federal Contract Compliance Programs (OFCCP) to our members as part of our free, members-only Ask the Expert series.

Here are some of the important points from the presentation:

1. What is the OFCCP? The OFCCP is responsible for ensuring that employers doing business with the federal government comply with the laws and regulations requiring nondiscrimination.

2. New OFCCP resources and priorities. The OFCCP received a 25 percent budget increase for 2010 that includes the hiring of more than 200 new compliance officers.  As a result, it is expected that the number of compliance evaluations will jump from an average of 4,000 to 7,000 per year.

3. Who must have a written affirmative action plan?  If your company has 50 or more employees and a federal government contract or subcontract to provide more than $50,000 a year in goods and services, then you are obligated to prepare annual affirmative action plans and to monitor closely your employment percentages of women and minorities compared to what is available in labor markets in which you operate.

4. Compliance timeline. From the time you accept a government contract, you have 120 days to put your affirmative action programs in place.

5. Hiring and compensation. Given the surge of litigation involving discrepancies in compensation systems, employers are particularly advised to be proactive in assessing their compliance. In addition to scrutiny of compensation by race and gender, there is a focus on low-wage and entry-level jobs.

6. Define your hiring process: Who is an applicant? Unless the application process is entirely a paper process, ensure the applicant data meets the four criteria of OFCCP’s definition of an Internet applicant

7. Know your data. Employers need to know what data they have available and what is being tracked prior to any OFCCP audit. Analyze your data on a regular basis.

If you have questions or would like more information about the OFCCP and affirmative action plans, please call CAI at 919-878-9222 or 336-668-7746.

Photo Source: Wikimedia Commons

“ALL OF YOUR BASE ARE BELONG TO US. RESISTANCE IS FUTILE.”

Thursday, September 30th, 2010

By Robin E. Shea, Attorney, Constangy, Brooks & Smith, LLP

The U.S. Department of Labor is planning to impose new “affirmative action” requirements on employers, requiring them to develop “plans” to address workplace safety, equal employment opportunity, and wage and hour/employee classification issues.

For the most part, these requirements – called “Plan/Prevent/Protect” – will not be limited to federal contractors but will apply to all employers covered by the relevant laws.

The proposed changes are dramatic, and shift from what the DOL calls “catch me if you can” (in other words, employer is presumed compliant unless the government is given reason to believe otherwise) to “Plan/Prevent/Protect” (in other words, employer is presumed guilty unless it can prove otherwise). “[E]mployers and other regulated entities will be asked to assemble plans, create processes, and designate people charged with achieving compliance,” says the DOL, and “compliance will be non-negotiable . . . .” (Emphasis added.)

Here are the basic guidelines of “Plan/Prevent/Protect”:

The “Plan” component will require employers to enlist employees in “identifying and remediating risks of legal violations and other risks to workers.” The plans must be made available to the workers “so they can fully understand them and help to monitor their implementation.”

The “Prevent” component will require employers to “thoroughly and completely implement the plan in a manner that prevents legal violations. . . . The employer . . . cannot draft a plan and then put it on a shelf. The plan must be fully implemented . . . .”

The “Protect” component will require employers to ensure “that the plan’s objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.”

In the context of compliance with the Fair Labor Standards Act, Plan/Prevent/Protect will require that employers provide information to employees about how their pay is calculated, and prepare a “classification analysis” with respect to any job that it treats as FLSA-exempt. Of course, the analysis will have to be made available to the employees and the government.

The DOL will issue proposed regulations on Plan/Prevent/Protect at some point in the future.

Robin Shea will be a presenter at CAI’s Triad Employment Law Update on Wednesday, Nov. 3, 2010 at the Koury Center in Greensboro, N.C. For additional information on the conference, visit www.capital.org/triadlaw.

Photo Source: my.aegean.gr