Selection of Noteworthy Items from Live Q&A Session with OFCCP on 7/12/2011

Selection of Noteworthy Items from Live Q&A Session with OFCCP

Online Discussion with OFCCP Director Pat Shui on Tuesday, July 12, 1 p.m. EDT

Full transcript found at: http://www.dol.gov/regulations/chat-ofccp-static-201107.htm

OFCCP's Agenda

1:00 Patricia A. Shiu: Good afternoon. My name is Patricia Shiu and I am the Director of the Office of Federal Contract Compliance Programs, also known as OFCCP. It is a pleasure for me to join you for the next hour and respond to your questions about our 2011 semi-annual regulatory agenda. At OFCCP, we are mandated to ensure that workers who are employed by or seek employment with federal contractors and subcontractors are not subjected to discrimination, including harassment, retaliation or termination because of sex, race, color, national origin, religion, disability or status as a protected veteran. Being a federal contractor is a privilege, not a right, and with that privilege comes a legal obligation to comply with affirmative action requirements and anti-discrimination laws.

Currently, we are engaged in several efforts to strengthen and update our regulations, bringing them in line with current law and adjusting to the realities of a modern labor force. Those efforts are articulated in the U.S. Department of Labor's 2011 Semi-Annual Regulatory Agenda, which was published last Thursday. This publication reflects Secretary of Labor Hilda Solis's vision of Good Jobs for Everyone in workplaces that are safe, fair, equitable and free of discrimination.

OFCCP's five entries in the DOL's new regulatory agenda seek to improve employment opportunities for veterans, for people with disabilities and for women and minorities in the construction trades. We are also moving forward with plans to develop a compensation data tool that will improve our ability to combat pay discrimination. Finally, we will be seeking public comment regarding our proposed revisions to guidelines on sex discrimination.

Your input, comments and feedback are critical to shaping these regulations. For the next hour, I will try to answer as many of your questions as possible. Please note, however, that formal comments for the record must be submitted in writing either by mail or at www.regulations.gov when a proposed rule is open for public comment.

Public comments on all NPRM can be found at regulations.gov.

What are the proposed revisions to guidelines on sex discrimination?

Partial answers:

1:21 Comment From Beth Scott: When do you expect to release the proposed revisions to the guidelines on sex discrimination?

1:21 Patricia A. Shiu, OFCCP Director: Beth, thanks for asking, the NPRM is scheduled to be published in February 2012.

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1:24 Comment From Nita Beecher: Is OFCCP planning any substative changes to the sex discrimination guidelines beyond changes in the law such as the one mentioned by you Pat?

1:25 Patricia A. Shiu, OFCCP Director: Nita, at this time, our efforts to update the guidelines are focused on stating clearly the existing principles applicable to a contractor's obligation not to discriminate in their employment policies and practices because of sex, and to formally align contractors' obligations regarding sex discrimination.

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1:35 Comment From Brian Rousseve: Right now the Sex Discrimination Guidelines at 41 CFR Part 60-20 are pretty general, and a section addressing compliance with those guidelines is no longer a required element of a Federal contractor's E.O. 11246 AAP for Women and Minorities. Is the plan to "beef up" the Sex Discrimination Guidelines so that they are more akin in their scope to 41 CFR Parts 60-300 & 60-741?

1:35 Comment From Brian Rousseve: Is the plan to "beef up" the Sex Discrimination Guidelines at 41 CFR Part 60-20 so that they are more akin to 41 CFR Parts 60-300 & 60-741?

1:35 Patricia A. Shiu, OFCCP Director: Brian, at this time, our efforts to update the guidelines are focused on stating clearly the existing principles applicable to a contractor's obligation not to discriminate in their employment policies and practices because of sex, and to formally align contractors' obligations regarding sex discrimination.

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What size contractors is OFCCP auditing?

1:22 Comment From BCG Institute: Is OFCCP actively auditing establishments with fewer than 50 employees onsite?

1:22 Patricia A. Shiu, OFCCP Director: Thanks for your question. The answer is, No, OFCCP is not actively auditing establishments with fewer than 50 employees. OFCCP will investigate complaints against contractors of any size.

When is OFCCP doing these things?

1:45 Comment From Fred: Will the proposed scheduling letter update follow OIRA protocol (http://www.reginfo.gov/public/jsp/Utilities/faq.jsp), which includes a second public comment period of 30 days before final approval? If so, will OFCCP seek an emergency extension for the current scheduling letter, which expires 9/30/2011?

1:45 Patricia A. Shiu, OFCCP Director: Fred, yes, we are following the OIRA protocol and will provide an opportunity for a second round of comments on the proposed updates to the scheduling letter. We do not anticipate that an emergency extension will be needed.

Interpretation: The notice for the second round of comments will likely come out 8/31/11 – which will give 30 days to respond before needing to extend the current scheduling letter.

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1:27 Comment From Guest: When will the updated OFCCP Compliance Manual be released?

1:27 Patricia A. Shiu, OFCCP Director: Guest, the FCCM will be published sometime this fall.

OFCCP has an MOU with the Federal Highway Administration

1:29 Comment From William Kerney: What efforts is USDOL/OFCCP making to avoid duplication of efforts in reviewing highway construction contractors for compliance with EO/EEO?

1:29 Patricia A. Shiu, OFCCP Director: William, OFCCP has an MOU with the Federal Highway Administration. Our field offices coordinate with the FHWA on construction reviews in order to eliminate duplication of efforts.

How long does an audit typically take?

1:32 Comment From Molly Kurt: Once OFCCP receives a contractor's complete submissions in response to a scheduling letter, how long do you expect that OFCCP will take to close the audit, in the absence of any finding of discrimination in hiring or compensation? Thank you.

1:32 Patricia A. Shiu, OFCCP Director: Molly, thank you for the question. If there are no technical violations as well as no discrimination findings, an audit is generally expected to be completed within 90 days. Sometime when cases are more complex, it can take longer.

ARRA funds for conducting investigations ran out Sept, 2010

1:33 Comment From Ramsey Jones: When do you think ARRA funds will run out?

1:33 Patricia A. Shiu, OFCCP Director: Thank you for your question. ARRA funds for conducting compliance evaluation ended on September 30, 2010. OFCCP is currently completing its reviews of contactors that were scheduled prior to that date.

Active Case Enforcement vs. Active Case Management

1:34 Patricia A. Shiu, OFCCP Director: There are several major differences between Active Case Enforcement (ACE) and Active Case Management (ACM). Under ACE, OFCCP is using all of the compliance evaluation investigative methodologies specified in the regulations (i.e., compliance review, offsite review of records, compliance check and focused review), whereas under ACM, only the compliance review method was used. Under ACM, a full desk audit was only conducted where there were indicators of discrimination or in every 50th review. ACE procedures require a full desk audit in every compliance evaluation. Additionally, ACM procedures focused on identifying cases where there were 10 or more affected class members, whereas ACE does not have a minimum affected class member threshold.

Complaint-driven process:

1:39 Comment From Ariane Hegewisch: What efforts is the OFCCP making so that workers know that their employers are federal contractors, and where they may complain if they think their employer is discriminating? What is the balance between audit investigations and complaints initiated investigations?

1:39 Patricia A. Shiu, OFCCP Director: Thanks for your question, Ariane. In just the first half of the current fiscal year, OFCCP conducted nearly 1,000 outreach events, reaching almost 26,000 stakeholders, including workers, community-based organizations, civil rights groups, employers, human resources professionals, attorneys, consultants, labor unions, veterans' service organizations and more. We will continue to participate in these activities. Notices of meetings and events can be found on our website http://www.dol.gov/ofccp. Unfortunately, there is no comprehensive list of all federal contractors; however, when a complaint is received at either EEOC or OFCCP, our investigators will determine whether or not the employer is a federal contractor. One thing we do know is that investigations based on individual complaints are twice as likely to result in a finding of violation than those we conduct based on our neutral scheduling process. Finally, OFCCP is hoping that our worker outreach education efforts will, indeed, result in more individual complaints.

Will OFCCP consider Title VII violations?

1:45 Comment From Stephanie R. Thomas: You've referenced analysis methodologies consistent with Title VII principles in this webchat, and also in previous chats. What is the Agency's position on the use of non-statistical tools for analysis? Are there non-statistical tools that are consistent with Title VII principles?

1:45 Patricia A. Shiu, OFCCP Director: Thanks for your question. Yes there are non-statistical tools that are consistent with Title VII principles. OFCCP will also consider anecdotal evidence, evidence of individual instances of discrimination and any other evidence that is relevant to the question of whether there is unlawful discrimination.

Is OFCCP interested in increased dialoge with labor?

1:47 Comment From Sarah V.: Has any thought been given to developing deeper relationships with unions and their apprenticeship programs, to increase the possibility that union referral programs will consider an employer's obligations regarding affirmative action and good faith efforts in referring its members?

1:47 Patricia A. Shiu, OFCCP Director: Sarah, that's a great question. In just the first half of the current fiscal year, OFCCP conducted nearly 1,000 outreach events, reaching almost 26,000 stakeholders, including workers, community-based organizations, civil rights groups, employers, human resources professionals, attorneys, consultants, labor unions, veterans' service organizations and more. Given our proposed regulations on construction, we are spending a significant amount of time meeting with our colleagues in the union movement. In fact, I spoke at the building and construction trades conference in California on April 30, and the DOL hosted an apprenticeship fair on the National Mall here in D.C. last month. We are always looking for opportunities to strengthen our relationships with our brothers and sisters in the house of labor. If you have suggestions, please feel free to contact my special assistant at Mehta.parag@dol.gov. Thanks

Some Definitions

1:47 Comment From Guest: Can you explain to some of us what is the "Scheduling Letter"?

1:47 Patricia A. Shiu, OFCCP Director: Guest, the scheduling letter is a notification that a federal contractor has been selected for compliance evaluation.

1:48 Comment From Heather: What is the FCCM?

1:48 Patricia A. Shiu, OFCCP Director: Good question. The FCCM stands for the Federal Contractor Compliance Manual and serves as a "how to" guide for OFCCP's compliance officers. The Manual should reasonably ensure quality and consistency by creating uniformity in investigative procedures nationwide and providing transparency as to how we conduct compliance evaluations and complaint investigations.

1:57 Comment From Guest: What is a FAAP?

1:57 Patricia A. Shiu, OFCCP Director: A FAAP is a Functional Affirmative Action Program.

Are Federally assisted jobs covered?

1:50 Comment From Guest: I read the the regulations regarding VEVRAA and Section 503 to exclude employers working on federally assisted contracts, regardless of dollar value. Do you agree?

1:50 Patricia A. Shiu, OFCCP Director: Guest, you are correct. The regulations implementing VEVRAA and Section 503 do not apply to contractors that have only federally assisted contracts, and only Executive Order 11246 applies to federally assisted construction contracts.

How do they identify whether OFCCP has jurisdiction over a contractor?

1:51 Comment From Matt: If there is no comprehensive list of all federal contractors as you stated, what process or resources does OFCCP use to determine whether an employer to an individual complaint is a federal contractor?

1:51 Patricia A. Shiu, OFCCP Director: Thank you for your question. OFCCP uses several databases to determine whether an employer is a federal contractor. Examples include Central Contractor Registration (CCR), Federal Procurement Data System-New Generation (FPDS-NG), EEO-1 Surveys, and Dun & Bradstreet. CCR captures registration information of all federal contractors. FPDS-NG captures all transactions of federal contracts. We receive EEO-1 reports from the U.S. Equal Employment Opportunity Commission for all businesses that self-report as federal contractors. Finally, Dun & Bradstreet captures name, address, family tree, and DUNS numbers for all facilities and subsidiaries of a business.

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1:58 Comment From Jolene: The OMB has a database of federal contractors (USAspending.gov). Does the OFCCP plan to collaborate with them to leverage and access the use of this database?

1:58 Patricia A. Shiu, OFCCP Director: Hey, Jolene. USAspending.gov gets its data from the Federal Procurement Data System-next generation database. OFCCP already uses the FPDS database to put together our scheduling list for compliance audits.

Results?

1:57 Comment From guest: Hi Pat, do you have any data on how you ofccp is doing relative to last year? More?

1:57 Patricia A. Shiu, OFCCP Director: Guest, in the first six months of Fiscal Year 2011, OFCCP has completed 44 financial conciliation agreements that include $5.66 million and 657 job offers for 8,090 victims. This compares favorably to the same period last year when we had completed 35 financial CAs totaling $2.77 million and 582 job-offers for 3,157 victims. This represents a 25 percent increase in CAs, more than double the financial remedies and, most importantly, an increase in job opportunities for workers who faced discrimination.

If underrepresented, what is required?

2:00 Comment From Sue: Does OFCCP require that more minorities be hired when there is under utilization or only that greater targeted recruitment efforts be made to attract the underutilized minority group?

2:00 Patricia A. Shiu, OFCCP Director: Sue, in the event of underutilization OFCCP requires contractors to undertake enhanced targeted recruitment efforts.

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