The 32nd Annual ILG National Conference in Washington, DC celebrated 50 years of civil rights. For those of us in attendance, it also celebrated another year of hearing great presentations by keynote speakers, seeing old friends, and meeting new colleagues.
The 50-year anniversary of the civil rights movement was highlighted throughout the conference, starting with the first keynote speaker, Martin Luther King III. Mr. King shared his memories of travelling as a child with his father and seeing first-hand bigotry in the south. Although he had many insights about the civil rights movement, the one that resonated the most with me was the importance of action through non-violence. The theme continued throughout the conference and culminated at the gala with a walk-through presentation of the years leading up to the civil rights movement.
With respect to the application of civil rights in today’s workplace, we had many speakers from EEOC, DOL – OFCCP, ODEP, and DOJ. In the spirit of collaboration, OFCCP and EEOC participated in the sessions alongside of attorneys and consultants. Many of us were hoping for, and in fact, expecting fireworks from this union, but that did not occur. Although there was real dialogue in these sessions, it was almost as if each side delivered their script and moved on to the next topic, leaving the audience hanging.
As a veteran conference attendee, I look forward to the controversial topics and discussions, as they are extremely thought provoking and engaging. I understand the need to be cordial and respectful in these settings, but I was left wanting more. In past years, the attorney/consultant presented alone but was well aware of the government representatives sitting in the back of the room, ready to pounce, if disagreement ensued. The only difference this year is that they were both sitting at the speaker’s table together; however, this dynamic seemed to impact the delivery of the material. As an attendee I might be tempted to speculate that the presenters did not communicate their intent to each other prior to the live presentation, creating a disconnect that resulted in a confused and frustrated audience.
Did the government have the upper-hand in these sessions? I would definitely say that the OFCCP presenters were more open about conveying their thoughts than the non-government presenters. It was clear that the government officials were thoroughly enjoying having a seat at the table. One of the newest members to OFCCP, Janette Wipper, Regional Director for Pacific Region, clearly articulated her platform of litigation. As a previous litigator, it would not surprise anyone that she would focus on litigation, but no one is sure how this will play out in her new position. In any event, in the session titled Recent Significant OFCCP Developments, with John Fox (Partner of Fox, Wang & Morgan PC), Melissa Speer (OFCCP Regional Director for the Southwest and Rocky Mountain Regions), and Janette Wipper, there was a small disagreement as to whether OFCCP’s efforts for finding pay discrimination were actually working. John Fox said that “OFCCP has alleged fewer than 200 compensation violations out of over 15 million employee pay decisions audited since 2008.” On the other hand, in this session as well as several others that I attended, OFCCP talked about the settlements in the G&K Services Co. ($265,983 for 59 women steered into lower paying jobs) and Metronics ($290,000 for 78 entry-level Hispanic workers for paying them less than their white counterparts) cases as examples of their successes. The following is a summary of other information provided in this session.
- Comments from John Fox
- Contractors are incurring much time and expense in determining who is similarly-situated for pay purposes. Contractors should revise job groups based on similarly-situated jobs and they should be similarly-situated in all essential functions.
- When responding to item #11 during a compliance review, contractors should take the opportunity to explain two things: (1) how they determined who is similarly-situated and (2) pay disparities. He feels that this should be done fast and early in the review process.
- Comments from OFCCP
- OFCCP closed 21 cases of pay discrimination, recovering $1.2 million affecting 965 workers.
- FY 2013 until June 2014 – OFCCP resolved 101 discrimination cases, of which 32 were compensation based.
- OFCCP is looking behind base pay and focusing on a broader scope of pay of all compensation and HR/compensation practices.
- Self-audits should monitor pay as well as policies.
The topic of compensation self-audits being privileged was raised in several sessions. The OFCCP Regional Directors said that self-audits are generally not privileged and that OFCCP will follow-up and demand proof of privilege. They, in turn, warned contractors to share the results of the self-audit results. On the other side of the spectrum, many of the attorneys talked about the need to ensure that any proactive self-audit should be privileged. Here is a summary of the advice offered by several attorneys in different sessions.
- It is preferable to use an outside attorney.
- Set up how you are doing the analysis correctly for attorney communication and advice.
- Articulate the relationship in writing and identify the rules of engagement.
- In the engagement letter, identify the attorney-client work product and the need for legal advice to be provided.
- To keep the privilege, be careful not to share information with others not originally identified in the control group.
In the session titled, Steering: The New Frontier, Matthew Camardella and Michelle Duncan (attorneys at Jackson Lewis) shared the podium with Diana Sen (OFCCP Northeast Regional Director). They defined “steering” as areas of concentration that lead to differences in terms and conditions of employment. Terms and conditions may include wages, opportunities for promotion, shift assignment, working conditions, etc. The issue of steering crosses over between hiring and compensation cases. If individuals are steered into positions with lower pay or opportunities, it will appear in the analysis of hiring activity as well as pay practices. The question was raised as to what degree of difference has to occur for it to be a red flag. Ms. Sen said that OFCCP will conduct a case-by-case analysis to determine if people have access to all jobs or if they are barriers. To determine if steering is occurring at the hiring stage, it was suggested that you conduct an impact ratio analysis by job title. To support the argument against steering, it is critical that all applicants self-select the job for which they want to be considered. Don’t allow managers to interview a person for one job and then hire them into another position, or it will appear to be steering.
This year the Plenary Session with OFCCP National office leadership and Regional Directors took another twist but this is one where contractors benefitted. In past years, OFCCP leaders would either offer an overview of what was happening in their region or simply take pre-set questions from the audience. In both situations, attendees rarely walked away with much new knowledge. This year, Michelle Hodge, OFCCP Mid-Atlantic Regional Director, decided to change things up. She said that they would take questions, comments, complaints, suggestions, or whatever the audience wanted to say to them. They wanted to have an open dialogue with federal contractors and it actually worked. After the expected complaints about the fact that all the new regulations were putting a burden on contractors, several key points were made and actually discussed.
The open forum allowed contractors to bring forth concerns raised and not properly addressed in early sessions. OFCCP agreed to take all of the comments seriously and provide contractors with guidance at a later date. Two major points were discussed:
- Section 503 Self-Identification Forms – Debra Carr (OFCCP Director of the Division of Policy and Program Development) stated that contractors need to maintain screenshots of all completed forms to provide proof during audits. This led to a heated but healthy discussion about how applicant tracking and human resource information systems work. Contractors articulated that there is no actual form to retain (in a screenshot) and that data from the completion of a computerized form is put into fields in the data systems. OFCCP officials acknowledged that they were not aware of how systems worked and admitted the need to discuss this further with IT professionals.
- Hiring Activity – Debra Carr told contractors that competitive internal placements (promotions or transfers) should be counted as hires. This caused a stir with most contractors who disagreed with this method of reporting on hires. OFCCP said that they will revisit this issue and provide guidance…stayed tuned for a new FAQ!
Even though the NPRM was released during the conference on the annual Equal Pay Report, the only discussion surrounding this was OFCCP’s request that contractors, small and large, read the proposed rule and provide comments within the 90-day period (due by November 6, 2014).
Under the proposed rule, companies having more than 100 employees and holding federal contracts/subcontracts in excess of $50,000 would need to submit an Equal Pay Report each year to the OFCCP. The Equal Pay Report would “provide summary data on the compensation paid to employees by sex, race, ethnicity, specific job categories and other relevant data points.” The data will be used by OFCCP to “direct its enforcement resources toward contractors whose summary compensation data suggest potential pay violations.”
It is clear from all of these sessions that although there may not have been any high volume sessions, there was definitely a good open dialogue about many hot topics in the contracting community.
If you have any questions or would like more information about the conference, please contact Debra Milstein Gardner at email@example.com or at 410-581-4970. We will be preparing compliance updates on these and other hot topics. To sign up for our compliance updates and newsletters, go to www.workplace-dynamics.com.