26TH ANNUAL INDUSTRY LIAISON GROUP NATIONAL CONFERENCE SCHEDULED JULY 29-AUGUST 1, 2008

by Patricia Schaeffer, Vice President-Regulatory Affairs

We are pleased to pass on an invitation from the Pacific Region ILG to register for the 26th annual Industry Liaison Group National Conference scheduled for July 29, 2008 – August 1, 2008. This year’s annual conference will be held at the Hyatt Regency Orange County. Check out the ILG National Conference agenda for a listing of the nationally recognized speakers and experts who are participating in this year’s meeting.

OFCCP SOLICITS COMMENTS ON THREE-YEAR EXTENSION OF SCHEDULING LETTER

by Patricia Schaeffer, Vice President-Regulatory Affairs

The Office of Federal Contract Compliance Programs (OFCCP) published a notice in yesterday’s Federal Register seeking a three-year extension on the approval of the Supply and Service Scheduling Letter.

Written comments to the agency must be submitted by July 7, 2008.

EEOC ANNOUNCES $1.65 MILLION SETTLEMENT FOR RACIAL HARASSMENT

by Patricia Schaeffer, Vice President-Regulatory Affairs

The EEOC has announced a major settlement of a racial harassment lawsuit for $1,650,000 and significant remedial relief against Conectiv, and subcontractors on behalf of African American employees who were subjected to egregious racial harassment at a construction site in Bethlehem, Pennsylvania. The agency alleged in its lawsuit that the defendants subjected a class of African American employees to racial slurs and graffiti as well as threats by hangman’s nooses.

CHANGES TO E-VERIFY PROGRAM ANNOUNCED

by Patricia Schaeffer, Vice President-Regulatory Affairs

The U.S. Citizenship and Immigration Services (USCIS) announced changes to the E-Verify employment authorization program intended to reduce the mismatch rate. Starting May 5, the E-Verify system will include naturalization data that USCIS says will instantly confirm the citizenship status of naturalized U.S. citizens hired by E-Verify employers. E-Verify now will also include real time arrival data from the Integrated Border Inspection System, which USCIS believes will reduce the number of immigration status related mismatches for newly arriving workers who have entered the U.S. legally. USCIS also plans to initiate citizenship status records information sharing with the Social Security Administration to help prevent tentative nonconfirmations from occurring.

SENATE VOTE BLOCKS ACTION ON THE CONTROVERSIAL LEDBETTER BILL

by Patricia Schaeffer, Vice President-Regulatory Affairs

On April 23, 2008, the Senate voted 56-42 to block debate on the Fair Pay Restoration Act, a bill that would reverse the controversial Supreme Court ruling in Ledbetter v. Goodyear Tire & Rubber. Four additional votes were needed to get the bill to the Senate floor for debate and action. The bill is now believed dead for the year unless supporters move to attach the language to “must-pass” legislation.

The White House had issued a Statement of Administration Policy threatening to veto the bill if passed, and many employer associations lobbied hard against it.

The bill was intended to reverse the controversial Supreme Court ruling handed out last year in Ledbetter v. Goodyear Tire & Rubber in which the Supreme Court rejected the “paycheck rule” accepted by many courts. The Supreme Court ruled that the time limits for filing a discrimination charge with the EEOC start to run when the employer makes a discriminatory decision about the employee’s compensation, not each time the employee receives a paycheck affected by discrimination.

Supreme Court Justice Ruth Bader Ginsburg wrote a strong dissent of the majority’s ruling in the Ledbetter case, and she took the rare move of reading it aloud from the bench. Justice Ginsburg called for Congress to correct what she saw as the court’s mistake.

EEOC RELUCTANTLY APPROVES THREE-YEAR EXTENSION OF RECORD KEEPING REQUIREMENTS UNDER UGESP

by Eric Dunleavy, Ph.D., Senior Consultant

On March 17, 2008, the Equal Employment Opportunity Commission (EEOC) held a public meeting to vote on the current status of the recordkeeping provisions of the Uniform Guidelines on Employee Selection Procedures (UGESP). These record keeping provisions detail the data requirements for applicant flow analyses, which are the most common data for analyses of adverse impact. This definition of applicant is important because it essentially determines who should be included and excluded from adverse impact analyses. The current definition of applicant in the UGESP is anyone that shows interest in a position. The meeting included a question and answer session between EEOC Commissioners Naomi Earp, Leslie Silverman, Stuart Ishimaru, and Christine Griffin and Carol Miaskoff, EEOC Office of Legal Counsel.

The Commissioners acknowledged that the EEOC and other enforcement agencies have been working on a revised definition of a job applicant since 1999. In fact, the EEOC was one of the federal agencies that published a notice in the Federal Register on March 4, 2004 regarding the adoption of additional questions and answers intended to clarify how UGESP applies in the context of the Internet and related technologies. However, these agencies have not agreed to a common definition. The OFCCP’s definition of an Internet applicant, which focused on the enforcement of Executive Order 11246, became effective in 2006. Because of the Paperwork Reduction Act, the EEOC was faced with extending the record keeping requirements of the UGESP or allowing them to lapse, which would mean that there would no longer be formal record keeping guidance for EEOC enforcement activity.

During the meeting the commissioners expressed disappointment that the EEOC and the other agencies could not come to a consensus on defining an Internet applicant. Additionally, the commissioners did not agree with the OFCCP’s definition. Specifically, the commissioners believe the basic qualifications prong of the OFCCP definition is too restrictive, and that those persons who fail the basic qualifications requirement may still be applicants, and may also be victims of discrimination. Importantly, the commissioners pointed out that the OFCCP definition is not endorsed by the EEOC, and that employers are mistaken if they assume the OFCCP definition applies to all enforcement agencies simply because it is the only Internet applicant definition available.

As expected, the commissioners voted unanimously to extend the record keeping requirements, and thus maintain the definition of applicant contained in the UGESP. Chair Earp asked whether the EEOC could enforce an Internet testing case using the definition from the UGESP, and Miaskoff said she thought the definition was flexible enough to be enforced in the online context.

The meeting ended with confirmation that this issue will be further considered over the next three years. In fact, Leslie Silverman hoped that the group of enforcement agencies that enforce the UGESP can come to consensus on a definition. However, the commissioners did mention the possibility that the EEOC could in theory decide to publish a separate EEOC definition of Internet applicant that would be potentially different from the OFCCP definition, although she acknowledged that this would not be the EEOC’s preference.

The thought of having substantially different definitions of Internet applicant, and thus, different rules for who is included and excluded from adverse impact analyses, is not a pleasant notion for employers. In the worst case scenario, adverse impact analyses using one agency definition may produce certain results, while using the applicant definition of another agency could in fact produce contrasting results.

DCI will keep you aware of any updates related to this issue.

DCI NOTES SIGNIFICANT CHANGES IN HOW OFCCP CONDUCTS ADVERSE IMPACT ANALYSES

by Patricia Schaeffer, Vice President-Regulatory Affairs

DCI Consulting Group Inc. has noticed a surprising new trend in how OFCCP conducts its adverse impact analyses.

David Cohen, President of DCI, says that in working with his clients recently, he’s noticed that OFCCP is conducting adverse impact analyses comparing all subgroups to the higher selected group instead of running all groups in comparison to just whites or males. For example, Cohen reports that if women are the higher selected group, he has seen OFCCP run an analysis to determine if there is adverse impact against men.

“In fact, we have several audits where there is ‘adverse impact’ against men and/or whites, and the local OFCCP office is collecting applicant data and coming on-site for an investigation,” Cohen says.

Cohen spoke to a senior official in OFCCP’s national office, who indicated there is no change in policy from headquarters or elsewhere on how OFCCP is conducting adverse impact analyses. However, the official did note that there were some cases in the Southwest region where Hispanics were the "higher selected class," and adverse impact against African Americans was identified. This adverse impact against African Americans would not have been identified using the traditional analysis that would have compared African Americans to whites.

The official noted that “it has always been a violation of the Executive Order (as well as Title VII) to discriminate against any race or sex (including whites and males). If you have seen a trend, perhaps it is due to a change in contractor behavior, because it is not due to any change in direction from OFCCP leadership,” the official explained.

Referencing the Uniform Guidelines on Employee Selection Procedures at 41 CFR 60-3.4 D, the senior official told DCI that “adverse impact under 60-3 is described as ‘A selection rate for any race, sex, or ethnic group, which is less than four-fifths…of the rate for the group with the highest rate will generally be regarded…as evidence of adverse impact.”

“Personally, I think this is a pretty dramatic shift from the way OFCCP has conducted adverse impact analyses for decades,” Cohen noted, “and it presents huge implications for contractors.”