ofccp gets tough presentation

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How the Obama Administration has re-shaped the OFCCP into an aggressive enforcement arm of affirmative action and nondiscrimination compliance, and what it all means for your organization.

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  • 1.HR Hero Audio Conference August 12, 2010 OFCCP Gets Tough :Prepare for Aggressive Affirmative Action Nondiscrimination Enforcement Dean R. Singewald II, Esq. Epstein Becker & Green, P.C. One Landmark Square, Suite 1800 Stamford, Connecticut 06901 [email_address] (203) 326-7410 2010 Epstein Becker & Green, P.C.

2. Introductory Statement

  • The materials contained in this power point presentation and the oral presentation are provided for informational purposes only and are not intended and should not be construed to constitute legal advice. Please consult with legal counsel in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.

1 3. About EpsteinBeckerGreen

  • Epstein Becker & Green, P.C.is an AmLaw 200 national law firm with approximately 325 lawyers practicing in 11 offices, in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford, and Washington, D.C.
  • With Washington insider knowledge and more than 35 years of experience in health care and labor and employment law, the Firm is eminently prepared to guide clients through this era of reform. Other practice areas include employee benefits, litigation, immigration, real estate, and business law.
  • The Firm has a longstanding history of being a trusted advisor to clients in the health, hospitality, financial services, and energy industries, among others, representing entities from small entrepreneurial ventures to large multinational corporations on a worldwide basis. For more information, visit www.ebglaw.com.

2 4. Affirmative Action/OFCCP Compliance Practice

  • Epstein Becker & Green, P.C.has a long standing and substantial Affirmative Action/OFCCP Compliance Practice. We regularly provide advise and counsel regarding the obligations of government contractors.
  • We assist clients in their efforts to engage in affirmative action to ensure non-discrimination in employment and, toward that end, assist them in the preparation and implementation of their Affirmative Action Programs (AAPs). We prepare plan documents, and analyze compensation and personnel activity data to determine compensation disparities and adverse impact by gender, race and ethnicity. We also regularly provide guidance to and defend clients subject to compliance reviews conducted by the Office of Federal Contract Compliance Programs (OFCCP).

3 5. About Dean Singewald, Esq.

  • Dean Singewaldrepresents employers in all facets of labor relations and employment law, including affirmative action and equal employment opportunity (EEO) compliance. Dean regularly advises government contractors on their affirmative action and EEO compliance obligations. He assists contractors in the preparation and implementation of their AAPs, prepares plan documents, conducts impact ratio and compensation analyses to identify and resolve potential adverse impact and compensation disparity discrimination liability, and provides guidance to and defends contractors during OFCCP compliance reviews.
  • Dean also counsels management on a wide range of corporate diversity matters ranging from crisis prevention and management to enhancing corporate diversity performance, and provides training concerning EEO issues, including affirmative action, diversity, and harassment prevention.

4 6. Agenda

  • OFCCP Takes Aggressive Stance to Ensure Compliance
  • Compliance Review of ARRA Contractors
  • Cap on Compliance Reviews Eliminated
  • Increased Focus on Covered Veterans and Disabled Individuals
  • Recent Developments
  • Questions & Answers

5 7.

  • OFCCP Takes Aggressive Stance to Ensure Compliance:
  • How the Obama Administration has re-shaped the OFCCP into an aggressive enforcement arm of affirmative action and nondiscrimination compliance, and what it all means for your organization

6 8. OFCCP Takes Aggressive Stance to Ensure Compliance

  • Obama Administration has re-shaped the OFCCP:
  • OFCCP now reports directly to Secretary of Labor
  • 33% increase in funding from FY 2009 to FY 2010
  • Additional $27.4 million in funding is being used to:
    • Develop a new case management system
    • Hire 213 additional compliance officers and other enforcement personnel
    • Increase the number of compliance evaluations and complaint investigations
    • Bolster the agencys enforcement strategies

7 9. OFCCP Takes Aggressive Stance to Ensure Compliance

  • OFCCPs renewed and expanded focus:
  • Good faith efforts in outreach and recruitment
    • Renewed focus on minorities and women
    • Expanded focus on veterans and disabled individuals
    • Expanded focus includes whites, men and individual minority groups
  • Serious about eliminating systemic discrimination
    • Hiring disparities
    • Tracking applicant flow crucial
  • Aggressive enforcement stance regarding contractors pay practices
    • Compensation disparities
    • No more sweetheart deals

8 10.

  • Compliance Review of ARRA Contractors :
  • How the OFCCP is targeting contractors who are recipients of funds from the American Recovery and Reinvestment Act (ARRA)

9 11. Compliance Review of ARRA Contractors

  • New directive issued :
  • SubjectsallARRA-funded contractors to pre-award clearance evaluations
    • Pre-award clearance evaluations of ARRA contractors are not limited to those contractors seeking contracts exceeding $10 million
  • Full compliance review, with desk audit and on-site evaluations to be conducted
    • Active Case Management procedures setting forth tiered compliance evaluation process will not be followed when reviewing ARRA contractors
  • All contractors on an ARRA-funded construction project is subject to a compliance review

10 12.

  • Cap on Compliance Reviews Eliminated:
  • Revisions to the Corporate Scheduling Announcement Letter could expose your organization to unlimited compliance reviews

11 13. Cap on Compliance Reviews Eliminated

  • Corporate Scheduling Announcement Letter revised:
  • No longer limiting the number of facilities that may be subject to a compliance review in any scheduling cycle
    • Previously limited to no more than 25 facilities a year
  • May eliminate letter altogether
  • Letter provides contractors opportunity to prepare or review their facilities AAPs before receiving notice from the OFCCP initiating a compliance review
    • Contractors able to address potential vulnerabilities in advance of compliance review

12 14.

  • Increased Focus on Covered Veterans and Disabled Individuals:
  • OFCCP providing greater scrutiny
  • Avoiding violations for lack of outreach
  • Possible regulation revisions

13 15. Increased Focus on Covered Veterans and Disabled Individuals

  • OFCCP providing greater scrutiny
  • Outreach and positive recruitment of both covered veterans and disabled individuals
    • Demanding detailed information on the number of applicants referred by veteran and disabled recruitment sources and the number hired
    • Onus now on contractors to not only use veteran and disabled recruitment sources, but also to monitor the referrals and hires from those sources
    • Similar scrutiny regarding minorities and women
  • Workplace accessibility for disabled individuals
  • Workplace accommodations provided

14 16. Increased Focus on Covered Veterans and Disabled Individuals

  • Avoiding violations for lack of outreach
  • Contractors need to:
    • Regularly list job openings with:
      • Minority and women recruitment sources
      • Veteran and disabled recruitment sources
      • State employment services
  • Record referral source information for applicants referred by recruitment sources
  • Monitor the number of applicants referred by these sources and the number hired
  • Document affirmative action taken

15 17. Increased Focus on Covered Veterans and Disabled Individuals

  • Possible regulation revisions
  • OFCCP announced plans to develop affirmative action statistical analyses for covered veterans and disabled individuals similar to the statistical analyses for minorities and women
    • Advanced Notice of Proposed Rulemaking issued seeking feedback on 18 issues in order to strengthen EEO and affirmat