Issues Discussed at the 2010 SWARM ILG Conference Held on April 21 to April 23

The Southwest and Rocky Mountain (SWARM) Regional Industry Liaison Group held its annual conference in Houston, Texas from April 21 through April 23, 2010. The conference chair was Doug Wilson, a Workforce Opportunity Network member who is retiring from Shell on April 30.

From SWARM Acting OFCCP Director

On Wednesday afternoon, Melissa Speer, acting director of OFCCP’s SWARM region, spoke on the following five areas of OFCCP focus:

1. Sex discrimination in hiring focusing on women in nontraditional jobs and pregnancy discrimination
2. Workplace accommodation for the disabled and veterans
3. Wage disparity based on race, sex and national origin
4. Right of “language minorities” whose native language is not English to equal employment opportunity
5. Retaliation

Speer also mentioned that based on the town halls held by Patricia Shiu, director of OFCCP, the agency determined that federal contractors and advocacy groups were not connecting on referrals from veterans’ and disability advocacy groups. Therefore, OFCCP has been having open houses in each district office for federal contractors and advocacy groups.

OFCCP Compensation Guidance

Beginning the panel discussion on Lilly Ledbetter and pay discrimination, David Cohen of DCI Consulting said he spoke to OFCCP Director Shiu very recently on approaches to compensation analyses that OFCCP should use. Shiu made it clear to him as she had made to the ABA a few weeks ago that she is looking for an alternative to the current Interpretative Guidance. Cohen thinks the current guidance is legally correct but very difficult to implement. Shiu discussed with Cohen that she is looking at such approaches as the DuBray method and cohort analysis, among others.

Cohen indicated that he believes that Shiu’s potential move to use cohort analysis as the prime focus of compensation analysis is illegal because OFCCP does not enforce the Equal Pay Act, which prohibits gender-based pay discrimination. The other problem, according to Cohen, is that even if there were an unexplained difference between women and men, OFCCP has to show intent through anecdotal evidence as these are disparate treatment, not disparate impact, cases. (This could change if Congress passes the Paycheck Fairness Act.) Cohen said a better approach for the agency would be to look at decision making about starting salary, merit review and performance appraisals.

Mickey Silberman of Jackson Lewis noted that OFCCP has said that the agency would be using 2010 to establish its baseline for compensation enforcement. Cohen and Silberman said that Shiu will have to move forward on pay discrimination because the Obama administration has taken a very strong position on it even though doing compensation analysis is very difficult.

OFCCP takes the position that there is no statute of limitations for any discrimination issues under the Executive Order because the Executive Order is based on the contract relationship between the federal government and the contractor.

OFCCP Selection Analysis

OFCCP SWARM Regional Acting Director Melissa Speer and her lawyer, Connie Ackerman of DOL’s Office of the Solicitor, spoke on Thursday, April 22 on the approach the SWARM OFCCP is taking to reviewing federal contractors’ impact ratio analysis. They said that federal contractors must analyze more than just minority versus nonminority and women versus men. Where any racial or ethnic group is more than 2 percent, the speakers reminded contractors that they must do subgroup analysis to see if minority vs. nonminority analysis is hiding discrimination. They said that this has always been an obligation for contractors since the Uniform Guidelines of Employee Selection (UGES) were implemented. Speers and Ackerman reminded contractors that the UGES require contractors to do their analyses by comparing the most favored group versus nonfavored groups. There was a firestorm in the meeting as the speakers worked through some examples where they combined some of the groups in doing the analyses. Ackerman said that they were doing analyses combining groups where the most favored group is only slightly more favored than the next favored group.

The contractors requested that OFCCP give them the formulas the OFCCP is using so the contractors can do the same analyses that the agency is doing. The speakers said they were unable to do that. They also said they could not provide their presentation with its very helpful examples to contractors.

Speer and Ackerman told contractors that they need to do analyses of each component of their selection processes. They said that the initial screen for applicants where snap decisions are being made is where the contractor can have issues. Disposition codes were discussed in the meeting as they were the downfall of the Bank of America (BoA) in its ongoing fight with OFCCP. The Administrative Law Judge held that because BoA did not use two disposition codes consistently, BoA had adverse impact in hiring. Recordkeeping continues to be a huge issue for contractors.

Remarks of OFCCP Director Shiu

After her prepared remarks, Shiu answered questions from the audience. She did say she wants to reach out to federal contractors as part of the stakeholders. She said she is trying to make OFCCP more effective and more strategic. She is trying to hire a co-deputy director but is very frustrated with the hiring process in the federal government. She is working very hard on updating the federal manual although the agency has no timetable for it. She believes the AAPs can be a necessary and valuable tool for contractors. She indicated that EEOC, OFCCP and the Department of Justice are working closely together to speak with one voice.

In response to questions, Shiu said she would look into why OFCCP can’t supply formulas to contractors so that contractors can do the same analyses as the agency. She also said she would look into why the OFCCP can’t provide its presentations to contractors. In addition, Shiu also said:

• She indicated that the OFCCP is looking at the EO survey and what would be required. She indicated that the agency will not immediately be working on compensation because it has so much else on its plate.
• The scheduling letter is set to expire in September of 2011 and Shiu said that they are looking at what they should do to change it.
• On CSALs, she will continue them as long as contractors use the notice to prepare for the audits but if they are not prepared, she will not go to the trouble and effort of supplying contractors with the letters. She said if contractors want to know whether they should have received a CSAL, they can contact Barbara Bingham or Patsy Blackshear.
• In response to a question about her recent webchat and goals for OFCCP, Shiu said they are trying to develop effective measures for compliance and for recidivism.

Conclusion

It is clear that OFCCP is moving away from the Charles James era and that contractors should be prepared for substantial changes in their new audits.