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EEO-1 FormReporting for 2018and Trends in OFCCPCompliancePresented By:Daniel V. Duff IIIJackson Lewis P.C.mail:P.O. Box 509 Eau Claire, WI 54702-0509 telephone: 866-352-9539 fax: 715-833-3953customerservice@lorman.com website: www.lorman.com seminar id: 399886email:This manual was created for online viewing. State specific information in this manual is used for illustration and is an example only.
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EEO-1 Form Reportingfor 2018 and Trends inOFCCP CompliancePrepared By:Daniel V. Duff IIIJackson Lewis P.C. 2017 Lorman Education Services. All Rights Reserved.All Rights Reserved. Lorman programs are copyrighted and may not be recorded or transcribed in whole or part without its express prior written permission. Yourattendance at a Lorman seminar constitutes your agreement not to record or transcribe all or any part of it.Full terms and conditions available at www.lorman.com/terms.php.This publication is designed to provide general information on the topic presented. It is sold with the understanding that the publisher is not engaged in rendering anylegal or professional services. The opinions or viewpoints expressed by faculty members do not necessarily reflect those of Lorman Education Services. These materials wereprepared by the faculty who are solely responsible for the correctness and appropriateness of the content. Although this manual is prepared by professionals, the contentand information provided should not be used as a substitute for professional services, and such content and information does not constitute legal or other professionaladvice. If legal or other professional advice is required, the services of a professional should be sought. Lorman Education Services is in no way responsible or liable for anyadvice or information provided by the faculty.This disclosure may be required by the Circular 230 regulations of the U.S. Treasury and the Internal Revenue Service. We inform you that any federal tax advice containedin this written communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding federal tax penalties imposed bythe federal government or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein.mail:P.O. Box 509 Eau Claire, WI 54702-0509 telephone: 866-352-9539 fax: 715-833-3953customerservice@lorman.com website: www.lorman.com seminar id: 399886email:
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Sponsored by:Lorman Educational ServicesPresented byDaniel V. Duff, omJackson Lewis P.C.www.jacksonlewis.com1 2017 Jackson Lewis P.C.1
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THE MATERIALS CONTAINED IN THISPRESENTATION WERE PREPARED BY THELAW FIRM OF JACKSON LEWIS P.C. FOR THEPARTICIPANTS’OWNREFERENCEINCONNECTION WITH EDUCATION SEMINARSPRESENTEDBYJACKSONLEWISLLP. ATTENDEES SHOULD CONSULT WITHCOUNSEL BEFORE TAKING ANY ACTIONSAND SHOULD NOT CONSIDER THESEMATERIALS OR DISCUSSIONS THEREABOUTTO BE LEGAL OR OTHER ADVICE. 2017 Jackson Lewis P.C.22Represents management exclusively in every aspect ofemployment, benefits, labor, and immigration law and relatedlitigationOver 800 attorneys in 56 locations nationwideRecommended in U.S. Legal 500 for Labor and EmploymentLitigation, Labor-Management Relations and Workplace andEmployment Counseling. Ranked in the First Tier nationally in theU.S. News - Best Lawyers “Best Law Firms.” 2017 Jackson Lewis P.C.333
Using specially designed proprietary software, our diversepractice group of approximately 40 lawyers, statisticians anddata analysts prepares over 3,000 affirmative action plans(“AAPs”) annually for our federal contactor cients.Since 2011, we have defended over 350 OFCCP audits,including successful defense of Corporate Management(“Glass Ceiling”) Compliance Evaluations. As a law firm, weoffer more than consulting services, we offer strategicthinking and sophisticated legal representation. 2017 Jackson Lewis P.C.44Daniel V. Duff III is a Principal in the Long Island office of Jackson Lewis P.C., and amember of the Firm’s Affirmative Action Compliance and OFCCP Defense Practice Group.Mr. Duff has over eighteen years of experience in advising clients in a wide array ofemployment law and litigation areas, with a focus on affirmation action, diversity, EEO andwage & hour matters. He has defended numerous OFCCP compliance evaluations andonsites, as well as handled cases/administrative proceedings involving claims of race,gender, age, disability and sex discrimination including class and collective action cases.Mr. Duff has broad experience dealing with the OFCCP, EEOC, as well as a variety of stateand local employment fair practice agencies. He has significant appellate practiceexperience, including defending appeals to the New York State Court of Appeals and theUnited States Supreme Court.Mr. Duff is admitted to practice in New York State, the U.S. District Court for the Southern,Eastern and Western Districts of New York and the Supreme Court of the United States.Mr. Duff received his B.A. in History from the College of the Holy Cross and his J.D. fromCornell Law School. 2017 Jackson Lewis P.C.455
The materials contained in this presentation wereprepared by the law firm of Jackson Lewis P.C. for theparticipants’ reference in connection with educationseminars presented by Jackson Lewis P.C. Attendeesshould consult with counsel before taking any actionsand should not consider these materials or discussionsabout these materials to be legal or other advice. 2017 Jackson Lewis P.C.66EEO-1 Form: Reporting for 2017Changes for the EEO-1 Report for 2018OFCCP Audits: What You Need to KnowDirective 307 and OFCCP’s Methods for AnalyzingCompensationOFCCP’s “New” Scheduling Letter. 2017 Jackson Lewis P.C.775
EEO-1 Form: Reporting for 2017? 2017 Jackson Lewis P.C.88Hispanic or Latino - A person of Cuban, Mexican, Puerto Rican, South or CentralAmerican, or other Spanish culture or origin, regardless of raceWhite (Not Hispanic or Latino) – A person having origins in any of the originalpeoples of Europe, the Middle East, or North AfricaBlack or African-American (Not Hispanic or Latino) - A person having origins inany of the black racial groups of AfricaNative Hawaiian or Other Pacific Islander (Not Hispanic or Latino) - A personhaving origins in any of the original peoples of Hawaii, Guam, Samoa, or otherPacific IslandsAsian (Not Hispanic or Latino) - A person having origins in any of the originalpeoples of the Far East, Southeast Asia, or the Indian Subcontinent, including, forexample, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the PhilippineIslands, Thailand, and VietnamAmerican Indian or Alaska Native (Not Hispanic or Latino) - A person havingorigins in any of the original peoples of North and South America (including CentralAmerica), and who maintain tribal affiliation or community attachmentTwo or More Races – All persons who identify with more than one of the above fiveraces 2017 Jackson Lewis P.C.699
“Officials and Managers” divided into two levels:o 1.1 Executive/Senior Level Officials and Managerso 1.2 First/Mid Level Officials and Managers Professionals Technicians Sales Workers Administrative Support Workers Craft Workers Operatives Laborers and Helpers Service Workers 2017 Jackson Lewis P.C.10107
What Should I Do?!? 2017 Jackson Lewis P.C.12121. Make Job Category Changes 2017 Jackson Lewis P.C.81313
2. Use Race and Ethnicity Information Already onRecord3. To Survey or Not to Survey 2017 Jackson Lewis P.C.1414Distribute to all employees invitation to self- identify raceand gender – ASAP Set return deadlineObtain race/gender info of employees who decline toself-ID Visual Determination Existing Employment Records 2017 Jackson Lewis P.C.15159
Invitation to Self-Identify Race and Gender To comply with governmental record-keeping and reportingrequirements Voluntary Confidential Kept separate from personnel file Not considered for employment purposes 2017 Jackson Lewis ionsmergers@eeoc.gov―e1.spinoffs@eeoc.gov 2017 Jackson Lewis P.C.101717
Failure to file or late filing could result in EEOC motion tocompel―If successful, EEOC could seek attorneys’ fees and costsWillfully making false statements punishable by fine or upto 5 years’ imprisonment 2017 Jackson Lewis P.C.1818EEOC MODIFICATIONS TOEEO-1 REPORT TOCOLLECT PAY DATA FROMEMPLOYERS 2017 Jackson Lewis P.C.191911
New EEO-1 reports, if not rescinded, will require:W-2 Earnings̶For each of the 10 EEO-1 categories, the total number ofemployees by race/ethnicity and gender that fall in each of the12 pay ranges established by the EEOC (1,680 options)̶Based on W-2 earnings for a 12-month calendar year periodHours worked̶Total number of hours worked by the employees separately ineach pay band for race/ethnicity and gender 2017 Jackson Lewis P.C.2020EEOC and OFCCP will:̶Use pay data to assess complaints of discrimination̶Focus agency investigations̶Identify existing pay disparities that may warrant furtherexamination (focused investigations)EEOC plans to publish employers’ aggregated data byindustry and geography - “will help employers inconducting their own analysis of their pay practices tofacilitate voluntary compliance.” 2017 Jackson Lewis P.C.122121
EEOC publishing confidential pay data by industry andgeographic area may:Identify pay data by employer̶Only employer in industry in geographic area̶One of few employers in industry in geographic area:competitive advantageIdentify pay data by employee̶Only employee in EEO-1 category at all̶Only employee by race/ethnicity and gender in EEO-1 category 2017 Jackson Lewis P.C.2222HOW TO PREPAREFOR AN OFCCP AUDIT 2017 Jackson Lewis P.C.232313
For the past several years, OFCCP only gave cursoryattention to the programmatic aspects of AAPcompliance, like good faith outreach effortsBut underchanged thecurrentadministration,thishasOFCCP is now aggressively scrutinizing employer’sgood faith outreach efforts to the female, minority,veteran, and disabled communities 2017 Jackson Lewis P.C.2424Employers must be able to demonstrate commitmentto outreachOFCCP now regularly demands detailed informationon how many applicants were referred by diversityrecruitment sources and of these, how many wereinterviewed, hired, etc.If OFCCP finds the contractor was deficient inrecordkeeping and/or outreach, the Agency will issuetechnical violations 2017 Jackson Lewis P.C.142525
Identify strong diversity sources for females, minorities, disabledand veteransMonitor the number and quality of applicants referred by diversityrecruitment sources and, as appropriate, change these sources 2017 Jackson Lewis P.C.2626DIRECTIVE 307 ANDOFCCP’S NEW METHODSFOR ANALYZINGCOMPENSATION 2017 Jackson Lewis P.C.272715
President Obama, 1.28.14:“Today, women make up about half our workforce. Butthey still make 77 cents for every dollar a man earns.That is wrong, and in 2014, it’s an embarrassment. Awoman deserves equal pay for equal work.”Relative WagesWhite Males 1.00Females77 BlackFemales64 HispanicFemales55 2017 Jackson Lewis P.C.2828Per the new Directive, in audits: Based on information received from the employer, OFCCP will develop PayAnalysis Groups (“PAGs”) Defined as a “group of employees (potentially from multiple job titles, units,categories and/or job groups) who are comparable for purposes of the contractor’spay practices” “May be based on groups larger than individual job titles and AAP job groups”Why? “By combining employees into pay analysis groups, using statisticalcontrols as necessary for title or level, OFCCP is able to more easilyidentify potential systemic discrimination . . .” 2017 Jackson Lewis P.C.162929
Directive states that “summary compensation datasubmitted in a format other than by AAP job group, orthe contractor’s existing pay grade, level or bandsystem, generally is not acceptable for analysis” 2017 Jackson Lewis P.C.3030OFCCP will closely scrutinize variables before acceptingthem in a regression modelIn regression analyses, OFCCP will test the explanatoryvariables to ensure they are predictive of pay and “notpotentially tainted by discrimination”If OFCCP concludes a variable causes adverse impact oris not consistently applied, it may be thrown out Performance Time in Position Education 2017 Jackson Lewis P.C.313117
OFCCP is looking for “areas of concentration” by race orgender in lower-paying jobsWhat should you be doing? Look at your entry-level jobs for “areas of concentration” (by race andgender) and be prepared to explain differences in pay3232 2017 Jackson Lewis P.C.OFCCP will prepare regression analyses by larger PAGs Job group Salary grade, level or band Exempt/non-exempt Any cut mentioned in policies, interviews, or contained in dataOFCCP will conduct cohort analyses and follow-up withemployee or job title specific questions E.g., Why is employee/females making lessemployee/males in job title (and provide documentation)? 2017 Jackson Lewis P.C.18than3333
You should be doing the same – Proactively andunder PrivilegeProactive analyses will allow you to: Make necessary adjustments to correct pay Annotate job titles where appropriate Focus OFCCP down the right path when they ask for the data inlarger groupings – you already know what group(s) look best Prepare and provide documentation to support differences in pay Know what factors affect (are highly correlated to) pay foranswering policy-related inquiries and interview questions 2017 Jackson Lewis P.C.3434OFCCP’S “NEW”SCHEDULING LETTER 2017 Jackson Lewis P.C.353519
The New Scheduling Letter and Itemized Listing̶Now effective for all audits̶11 new items on the Itemized Listing̶2 items substantially changed on the Itemized ListingCompliance Officers are now trained on the new letterNote: Even audits under old letters investigated undernew letter 2017 Jackson Lewis P.C.3636TOP 10 ENFORCEMENTCHANGES UNDER THENEW LETTER 2017 Jackson Lewis P.C.203737
Common request: Provide documentation of all jobslisted with the stateMountainside Office example: “Provide copies of eachjob order and the job description. Indicate if applicantswere provided by the employment center, and if so, thedisposition of each applicant.”Regulations do not require that we createdocumentation if it does not already existNote: Check with your recruiters and/or third-partyvendor as to what they can provide 2017 Jackson Lewis P.C.3838EEO Policy Stmt. & Availability of AAPs for Inspection̶How, when, and where applicants and employees may view AAP̶Common requests: Description and/or pictureLabor Union Notification̶Documentation notify labor union of EEO obligations̶Contract or lettersSubcontractor Notification̶Documentation notify subcontractors of EEO obligations̶Send letters on an annual basis̶Ensure in appropriate contracts, especially staffing agencies 2017 Jackson Lewis P.C.393921
Must notify applicants of how they may request anaccommodation in the online application processCommon OFCCP requests/actions:̶Description or screen shot of accessibility/accommodation notice̶Review online themselves on Careers webpage̶Request accommodation through processHow to respond̶Put up accommodation policy on Careers site̶Designate person responsible for answering every day -response time is key 2017 Jackson Lewis P.C.4040Include this language on the Careers site:[Company] endeavors to make [WEBSITE URL] accessible to any and allusers. If you would like to contact us regarding the accessibility of our websiteor need assistance completing the application process, please contact[CONTACT NAME/TITLE/DEPT] at [PHONE NUMBER, INCLUDE TTY/TDDLINES IF APPLICABLE] or [E-MAIL ADDRESS OR LINK]. This contactinformation is for accommodation requests only and cannot be used to inquireabout the status of applications.[Company] is an equal opportunity employer. Qualified applicants will receiveconsideration for employment without regard to race, color, religion, sex, sexualorientation, gender identity, national origin, disability or protected veteranstatus. For our EEO Policy Statement, please click here. If you’d like moreinformation on your EEO rights under the law, please click here. 2017 Jackson Lewis P.C.224141
Provide applicant pre- and post-offer self–ID forms̶Why? New veteran and disability regulations̶Provide: Race, gender, veteran, and disability forms Disability must be OFCCP form; cannot be altered Veterans form is now the same for pre- and post-offer (Describecategories of protected veterans and yes/no/I choose not toanswer)Provide application̶Looking for process issues (tests, mental/physical)̶Also check for questions re: criminal history, veteran status,unemployment status, etc.o Less is more 2017 Jackson Lewis P.C.4242Itemized Listing requires that we include information ondate assessment was performed, actions taken, andnext date to be completedEmployers can address through plan text or narrative̶More specific date completed: Most recent annual plan year ifnothing else has been done̶Be careful of “actions taken” to submit in an audit̶Next date to be completed: Next annual plan year 2017 Jackson Lewis P.C.434323
Itemized Listing requests evidence of most recentassessment of physical and mental qualifications̶Date of assessment̶Actions taken̶Date of next scheduled assessmentRegulations require: “Schedule for the periodic review ofall physical and mental job qualification standards” toensure they are job-related for the positionOFCCP wants to see regular (annual) reviewResponse: Reviewed with job postings if nothing moreformal done 2017 Jackson Lewis P.C.4444Provide accommodation and leave policiesProvide accommodation log/information onaccommodations requested and results̶All accommodations requested, granted (yes/no), if not, whynot̶How were similar requests handled̶Documentation & contact informationFind out if any accommodations have been denied and,if so, why. That is where OFCCP will focus. 2017 Jackson Lewis P.C.244545
̶New Items 7 (Sec 503) and 11(VEVRAA):“Results of the evaluation of the effectiveness of the outreachand recruitment efforts” for the disabled and covered veteransCommon requests:̶Provide a description of all outreach activities your companyparticipated in during the plan year̶Provide documentation of outreach activities to veterans &disabled individuals (and women & minorities)̶Provide the name and contact information for the organizationscontacted 2017 Jackson Lewis P.C.4646OFCCP has said “failure to meet goals/benchmarks isnot a violation; failure to try is.”Show OFCCP you are trying:̶Generally say what worked well̶Note areas where continue to work with source(s)̶Describe areas where changes were made/different source(s)addedTry to focus OFCCP on areas where goals existGet reports/data to use, if necessary 2017 Jackson Lewis P.C.474725
Provide sub-minority personnel activity data for applicants, hires,promotions, terminations (Item 18)Legal basis under the Uniform Guidelines:̶“A selection rate for any race, sex, or ethnic group which is less thanfour-fifths (4/5) (or eighty percent) of the rate for the group with thehighest rate will generally be regarded by the Federal enforcementagencies as evidence of adverse impact .”Therefore, OFCCP can run analyses for highest rate vs. other ratesand even combine them together (ex. Hispanic v. White Black)But, VF Jeanswear: OFCCP should not run “all other” analyses (ex.Asian v. All Others)4848 2017 Jackson Lewis P.C.AnalysisRate forRate for StandardGroup on Group on DeviationLeftRightMinority v. Non-Minority9/100.091/100.01-2.5964Hispanic v. Black8/20.401/80.015.4166Hispanic v. White8/20.401/100.016.0456Hispanic v. Black White8/20.402/180.017.5707 2017 Jackson Lewis P.C.26Shortfall4949
Provide “unknown” race/gender applicantsHow will they analyze?̶Low response rate̶What is good enough?If so, could suggest:̶Not soliciting race and gender̶Not requesting at appropriate time in the process̶Not tracking/maintaining̶5050 2017 Jackson Lewis P.C.For each employee (on the same date as the workforceanalysis), provide:Unique IdentifierDate of HireLocalityRace/Ethnic CategoryGenderHours in a TypicalWorkweekJob TitleBase CompensationOvertimeEEO-1 CategoryBonusesMeritJob GroupCommissionsIncentivesProvide data electronicallyProvide compensation policies (not required per FAQ) 2017 Jackson Lewis P.C.515127
Common compensation-related requests̶Get the data as quickly as possible̶Establish Pay Analysis Groups (“PAGs”)̶Request copies of compensation policies̶Conduct compensation manager interview (even before receiptof data)̶Some COs want to “get everything” before running analyses 2017 Jackson Lewis P.C.5252Best practices:̶̶Analyses Run regression and cohort analyses prior to submission Know what factors affect pay in each group Know what PAGs look best (job group, grade, job title, etc.)Submission Submit data electronically password protected Do not break out categories (ex. types of bonuses) Do not provide additional fields of information unless they arenecessary to bring under significance in analyses Do not submit compensation policies 2017 Jackson Lewis P.C.285353
Interview̶̶Prepare Discuss factors in analyses affecting pay (note: not necessarilypay for performance) Discuss groupings most advantageous Minimize discretionary nature, where applicableTreat it like a deposition Less is more Do not offer more than requested Do not refer to additional documents not produced unless alreadyreviewed by and ok’d for production 2017 Jackson Lewis P.C.5454Stay up to date on the latest from OFCCP:Consider signing up for our bloghttp://www.affirmativeactionlawadvisor.com/A source of insights, news and strategy onaffirmative action and EEO compliance matters 2017 Jackson Lewis P.C.555529
QUESTIONS? 2017 Jackson Lewis P.C.5656Please contact us with any questions:Daniel V. Duff, Esq.Daniel.Duff@jacksonlewis.comJackson Lewis P.C.www.jacksonlewis.com 2017 Jackson Lewis P.C.305757
Notes
and Trends in OFCCP Compliance Presented By: This manual was created for online viewing. State specific information in this manual is used for illustration and is an example only. mail: P.O. Box 509 Eau Claire, WI 54702-0509 telephone: 866-352-9539 fax: 715-833-3953
