How to Put Action into Your Affirmative Action Webinar Series

Stepping Through the Affirmative Action & Audit Process

June 8 & 9 - 9:00 am til Noon

Implementing an Effective Affirmative Action Program

June 15 & 16 - 9:00 am til Noon

Affirmative Action Data Collection Techniques

June 22 - 9:00 am til Noon

NILG Conference Highlights/Take Aways

Here are some take aways/highlights from the NILG Conference I think will be of interest – some of which will already be familiar but reinforces the direction that is being taken. Note, there were no current, pending regulations in play at this time, as was the case last year.   Therefore topics were more centered around implementation of the regulations and Analysis Strategies. Also, Compensation Analysis was also a major topic as well as Outreach for VETS/IWD’s.

Pay Equity Strategic Enforcement:

• President Obama,  by Executive Order in April, 2014, enacted legislation banning federal contractors from disciplining or otherwise discouraging employees and/or applicants from reviewing pay.  It is also noteworthy, that 11 States now have “Pay Secrecy” laws that prohibit retaliating and/or disciplining employees for discussing pay.
• Steering - an area that OFCCP appears to be delving into more and assessing both ways –  are certain groups upwardly or downwardly steered (i.e. are females steered into smaller sales territories, lower pay positions, given worse sales leads, etc.). Research was reviewed that showed that just because a correlation may exist between  certain jobs and pay – it doesn't mean that the pay is caused by the correlation. However, OFCCP begins to assess correlation and a presumption of discrimination will prevail absent business related justifications and/or documented applicant specified preferences. The emphasis here was that contractors should track applicants’ preferences (i.e. regarding shift’s, locations, position, etc .), which becomes crucial in defending potential steering charges.
• There are two primary Statutes under which to bring forth Pay Equity Discrimination charges. Title VII and the Equal Pay Act (EPA), which pre-dates Title VII.

• Title VII: provides the ability to bring forth lawsuits where employees are “similarly situated” - thus, they do not have to be in the same exact job. Also, the positions do not need to be at the same establishment or location.

• Equal Pay Act: This statute is more rigorous. Employees must conduct “substantially equal work” and must be in the same location.  However, there is a preference toward bringing charges under the EPA rather than Title VII and some of the reasons for this preference are as follows:

• The EPA statute provides for strict liability based on 4 criteria. Thus, proof of the intent to discriminate is not necessary.

• The limitation period was significantly expanded by the Lilly Ledbetter decision vs. Title VII, which requires the charge to be filed within 300 days of the discriminatory act. This is not necessary under the EPA.

• The damages that can be awarded are twice that of those that can be awarded under Title VII – and can extend to discrimination regarding “Employee Benefits, Vacation, Bonuses, etc.” not just pay.

• It is not necessary to file an EEOC complaint first as with Title VII, which does require for a complaint to first be filed with the EEOC.

• Standards for evaluating pay differed between EEOC and OFCCP and caused conflict amongst agencies.  OFCCP is looking to use the same standards as the EEOC.   Thus, the reason for rescinding  prior compensation self evaluation guidelines and referring to Title VII as the new standard.  Goal is to use the same standards as the EEOC:

• OFCCP is usually relying on statistical evidence but the 2 SD rule is not hard and fast – looking for patterns and practices – so does not necessarily have to meet the 2 SD result to be identified as an potential pay discrimination issue.
• Starting pay is an area of focus and where pay issues are often identified.  Also, emphasized that prior job pay is not being accepted as an airtight defense for starting pay differentials – perpetuates the disparity. It needs to be justified based on experience for the position, etc. 
• OFCCP  will run regression analysis and this is  done  at the National Office (with a total of 4 Statisticians only – indicated they are looking to hire more at the district level).  CO can run a few initial tests at district level and then decides whether or not it needs to be referred to National, which does all of the true statistical analysis of similarly situated groups and regression.
• FCCP is looking to see if there are legitimate proxy measures (factors) that should be considered (used in the regression analysis) and for the most part reviewing to assess if practices are consistently and “neutrally” applied. They are also getting away from using the terms “Minority/Non-Minority” and moving more toward “Neutrality” across all groups.
• OFCCP is looking to review comparable employees  based on the contractors Pay Data and information gathered during  an interview with the contractor regarding their compensation system.  OFCCP at times may seek to  create further  aggregations of employees for analysis if it seems reasonable based on the information gathered  during the contractor interview.  They stated that it is often time to eliminate employees from the group and not add any in order to  have the correct focus for pay  comparison purposes.
• Anecdotal evidence becomes very important when dealing with individuals and small groups because SD results not possible with smaller statistical groups.

• Suggestions:

• Define who is comparable -create the “Pay Analysis Groups” (PAG),  and they made it very clear that this does not equate to “Job Groups”  (interesting comment I thought), although OFCCP will run analysis by Job Groups so contractors should do so as well.
• When developing PAG’s consider similar work schedules, exemption codes, credentials, demands, qualifications requirements, etc.
• Assess for Neutrality across all groups
• Develop a very standard process for establishing Starting Pay that weights the factors considered by importance.  This will provide the documentation and constituency for defending those potential pay differences.

• Outreach/Recruitment VETS/DISABILITY:

• Made it very clear that ESDS Listing is required and not considered Outreach under the regulations. This is the minimum requirement and will not satisfy requirements for conducting good faith outreach/recruitment efforts.
• Recently Separated Vets do not have to be tracked separately.
• First Implementation Year AAP should include the following – although reporting and documentation not yet required:

• Statement of Expected Outreach (will implement)
• Discussion of Audit & Reporting System Plans (will implement)
• Statement of Hiring Benchmark being adapted (will implement)
• Statement of Utilization Goal being adapted (will implement)
• Suggested the use of automated “Trackers” (offered by THOMAS HOUSTON)

• There will be no IRA’s on the new data requested (vets/disability applicants, hires etc.)
• Not meeting Utilization Goal or Hiring Benchmark is not a violation at this time. These are considered “Aspiration Goals” different from Executive Order 11246 requirements.
• Articulate Goals to Management
• Harness Support of VETS on staff
• Not a Charity Initiative – should not be viewed as such – rather makes sense from business perspective
• Build your Brand as an Employers who truly values and embraces Individuals with Disabilities and Protected Veterans.
• Make sure you are engaging employees- it is not just a “once a year” thing – not just giving it “lip service”

• Audit Strategies -Confirmed that Adverse Impact/Hires and Compensation are leading areas in findings of Audit Violations

• Balance Data – Ensure Accuracy
• Cohort Analysis of Comp Data recommended regardless of  Statistical Analysis by PAG results.
• Discuss compensation with Compensation Manager prior to interview with OFCCP
• AI/Review by Stages of Employment process -  OFCCP not to keen on by requisition review – prefer hiring stage analysis.
• Review Availability stats vs. Apps representation – does the availability definition make sense to the applicant flow representation.

by Maribel Gregory, Project Manager, THOMAS HOUSTON

Mandatory Florida Posting Change

The state of Florida has updated its Discrimination poster to include pregnancy as a protected class. The state’s Civil Rights Act was amended earlier this year to prohibit discrimination on the basis of pregnancy. The amended law took effect July 1.

You are required to post this revised notice. Update your posters today!

With 50 mandatory changes throughout the U.S. in 2014 and 39 so far in 2015, keeping posters current is more crucial than ever.
 

OFCCP Sets Release of Unified Agenda for April 2013

Federal contractors and subcontractors long-awaiting finalized regulations of the OFCCP’s Unified Agenda can set April 2013 on their calendars. The OFCCP’s Unified Agenda will outline aggressive new rules and regulations in the coming year, increasing the enforcement of equal employment opportunity for protected veterans and individuals with disabilities with respect to hiring, worker retention, and data collection. The proposed rulemaking would amend the nondiscrimination and affirmative action provisions; consequently upping affirmative action requirements.

Among the new requirements imposed by the proposed regulations, the new rule would increase data collection and recordkeeping requirements, as well as establish new analysis and retention criteria. The rule will also incorporate changes to the nondiscrimination provisions as it relates to hiring of individuals with disabilities, requiring federal contractors and subcontractors to establish 7% employment for individuals with disabilities across the entire workforce, along with making adjustments to reasonable accommodation procedures, data collection requirements, and compliance procedures.

Along with the above revisions, the OFCCP also has also proposed:

• A compensation data collection tool to collect and sort compensation data by race, gender and national origin, further enforcing equal pay laws, scheduled for release in June;
• New sex discrimination regulations, which set forth contractors’ obligations not to discriminate on the basis of sex (sex discrimination guidelines have not been updated since 1978), scheduled for release August 2013; and
• Updated regulations impacting the obligations of construction contractors, scheduled for an October release date.

While all of the specifics of the above proposed regulations will not be confirmed until April, contractors will need to pay close attention on how these new rules will impact their existing OFCCP compliance initiatives, and should anticipate increased enforcement activities in all aspects of affirmative action.

Source: America's Job Exchange

This information is intended to be educational and should not be considered legal advice on any specific matter.

Department of Labor seeks submissions for disability employment app challenge

Source:  ODEP News Release

The Department of Labor's (DOL) Office of Disability Employment Policy (ODEP) today announced the launch of its first disability-related application challenge, which is designed to generate innovative tools that will improve employment opportunities and outcomes for people with disabilities.

The goal of the app challenge is to promote recruitment resources for employers, develop job training and skill-building tools for job seekers, facilitate employment-related transportation options and expand information communication technology accessibility.

Submissions should provide access to important data and resources; attract users with different skill sets and language preferences; be accessible (that is, compatible and interoperable with assistive technology commonly used by individuals with disabilities, such as screen reading and speech recognition software); and consider partnerships that will ensure sustainability of the app. In addition, they should be targeted toward a variety of audiences such as students, teachers, employers, career counselors and workforce professionals, as well as individuals with disabilities working or seeking work at all levels in a variety of salaried and hourly jobs.

Awards with cash prizes — totaling $10,000 — will be given to the top three submissions, including the grand prize Innovation Award, the second prize People's Choice Award, and the third prize Above and Beyond Accessibility Award. The winners will be featured prominently on ODEP's website, http://www.dol.gov/odep/, as well as at http://disability.gov and through other public outreach vehicles.

Contestants must register for the contest on the Challenge.gov website by creating an account at http://challenge.gov/users/login. Each registrant will receive a confirmation email and may then enter a submission via the "Post a Submission" tab at http://disability.challenge.gov. Submissions must be entered between May 23 at 12 a.m. EDT and Aug. 23 at 11:59 p.m. EDT. Late entries will not be eligible for prizes.

Read the full news release

This information is intended to be educational and should not be considered legal advice on any specific matter.

A Picture is Worth a Thousand Words

Source:  OFCCP Equal Pay Enforcement Fact Sheet

The OFCCP has substantially increased the number of enforcement actions addressing pay discrimination: conciliation agreements with pay remedies have more than doubled between FY 2010 and 2011. In fact, about 20% of the agency's financial settlements addressed compensation issues in FY 2011, a substantial increase over prior years.

The President has made "Fair Pay" one of his top priorities:

• Signed the Lilly Ledbetter Fair Pay Act 9 days after taking office;
• Launched National Equal Pay Task Force (an interagency coordinating body of enforcement/oversight agencies);
• Mentioned fair pay in every State of the Union Address; and,
• Lobbied for legislation on Capitol Hill to strengthen enforcement.

The OFCCP has stepped-up its enforcement - evaluating the compensation practices of over 10,000 businesses (and recovering $1.4 million dollars in back pay) since January 2010, and looking for novel means to review employer compensation across business entities, states and even regions. An example may be found in the current round of Corporate Scheduling Announcement Letters (CSAL):

"This notification is not all-inclusive; therefore, it is possible that other establishments within your company may be selected for a supply-and-service compliance evaluation during this scheduling cycle."

Just last month, Secretary of Labor Solis announced the winners of the President's Equal Pay App Challenge - an initiative to bring tools to remedy pay inequities to one's smart phone, laptop or tablet. The winners (Aequitas, Close the Wage Gap, Demand Equal Pay for Women, and Gender Gap App) designed Apps designed to help women negotiate starting salaries, as well as a pay raise, or promotion.

Federal contractors and grant recipients have an obligation to monitor compensation practices, and all employers are encouraged to routinely review their procedures to ensure they are being implemented fairly and that systems are working well for all.

Top Ten Tips to Monitoring Compensation . . .

1. Review initial job placements to ensure that equally-qualified minority group members/women are not disproportionately steered into lower-level or less desirable positions, product lines, routes, etc.;
2. Ensure compensation monitoring is conducted utilizing substantially equal positions (Equal Pay Act);
3. Monitor starting salaries amongst peer groups to ensure valid, legal rationale(s) for differentials in salary at time of hire;
4. Monitor the use of "sub-salary grades" to ensure nondiscrimination in treatment;
5. Review underlying performance management system(s) to ensure consistency in application and nondiscrimination;
6. Ensure managers are utilizing compensation vehicles properly such as not to undermine the entire system (i.e., retention bonuses as one-time lump sums rather than as large salary increases, etc.);
7. Review all out-of-guideline compensation decisions to ensure nondiscrimination in treatment;
8. Perform annual review of merit increases;
9. Review compensation annually utilizing the OFCCP mean (average) approach; and,
10. Review all other forms of compensation - bonuses, long-term incentives, requisites and benefits - to ensure nondiscrimination.

Need more information?

Don't wait until a complaint has been filed or an OFCCP Scheduling Letter arrives; contact THOMAS HOUSTON today.

For information on the services offered by THOMAS HOUSTON associates, inc., please call (800) 330-9000 or click here to schedule a convenient time to receive a call from a member of our Sales Team.

This information is intended to be educational and should not be considered legal advice on any specific matter.

Is a Corporate Management Compliance Evaluation (CMCE) in Your Future?

Posts to LinkedIn have discussed a third version of the recent Corporate Scheduling Announcement Letters (CSAL) sent by the Office of Federal Contract Compliance Programs (OFCCP); a letter indicating that the establishment should expect a Corporate Management Compliance Evaluation (CMCE).  A CMCE (fka Corporate Management Review) focuses on whether there is discrimination in the selection process for mid-level and senior corporate management positions.

Supply and service contractors with 4,000 or more employees in the organization and more than one reporting subordinate establishment are included on the CMCE List. The headquarters establishments of contractors with fewer than 4,000 employees are included on the Federal Contractor Selection System (FCSS) lists for compliance evaluations.

The CMCE List is developed in two ways:

1. The results of the FCSS model is applied to the list of companies who completed corporate headquarters information in their most current EEO-1 Report and have never undergone a CMCE in the past. These facilities are rank ordered based on the criteria used to rank non-headquarters establishments.
2. Those corporate headquarters that have been reviewed at any time more than 24 months before the list was developed are next on the list, ranked from earliest date of evaluation completion to most recent date of evaluation completion.

The term "Corporate Management Compliance Evaluation" was adopted to reflect the overall compliance assessment process and the combination of investigative procedures authorized in 41 CFR 60-1.20. In that light, the term "Corporate Management Review" was renamed "Corporate Management Compliance Evaluation." In all other respects, the CMCE is the same as the Corporate Management Review.

Read FAQs about the CMCE

This information is intended to be educational and should not be considered legal advice on any specific matter.

OFCCP Comment Request - Approval of Information Collection Requirements for FAAP Application Process

The Office of Federal Contract Compliance Programs (OFCCP) is soliciting comments on its proposal to implement standard procedures for supply and service contractors seeking approval to develop affirmative action programs based on functional or business units.

Functional affirmative action programs (FAAPs) are designed to provide contractors with the option of creating AAPs that better fit their business needs. To develop and implement a FAAP, Federal contractors must receive written approval from the Director  of OFCCP. On March 21, 2002, OFCCP issued guidance outlining procedures for approving contractors' requests to use functional AAPs.  Subsequently, on June 14, 2011, OFCCP issued new guidance and established standard procedures for FAAP approvals.

This Information Collection Request (ICR) addresses the collection of information associated with the process for obtaining, modifying, updating, and renewing an agreement that allows contractors to develop and use functional AAPs.

Written comments must be submitted on or before July 23, 2012.

View the notice

View the Supporting Statement

OFCCP Leaves No Stone Unturned with Detailed Applicant Documentation Requests

Recent desk audits conducted by the Office of Federal Contract Compliance Programs (OFCCP) include broad follow up requests to provide extensive detail regarding the applicant selection process.

 

Following is an example of one follow up request for one position:

"All documentation (including any hand written notes and or emails)" regarding:

• who made determinations during the selection process (i.e. who made the determination to phone screen);
• interview decisions (i.e. who to forward, who would receive an offer);
• applicant decisions (i.e. not to be considered, to be considered for other positions, to withdraw from the selection process)

"All documentation (including any hand written notes and or emails)" taken during:

• screening
• interviews

"All documentation (including any hand written notes and or emails)" to show that [specified applicants]:

• did not want to be considered;
• did not meet the salary requirements;
• were not a good fit;
• were overqualified;
• did not meet minimum qualifications;
• refused work hours; and/or
• were unable to be contacted.

In anticipation of responding to a similar request, it is important to keep the following objectives in mind:

• Use control measures to ensure all records of selection activity and related documentation are objective and centrally contained; with no extraneous e-mails or personal notes;
• Use position requisition numbers to clearly identify applicants related to each position;
• Follow a consistent process* that includes disposition codes to manage the size and accuracy of applicant flow;
• Use applicant disposition codes that are related to the stated position qualifications;
• After a position is filled, review all applicant records for the position to ensure a disposition code as been assigned.

THOMAS HOUSTON associates, inc. can assist you in meeting the challenges that will arise as a result of the upcoming OFCCP's regulatory efforts. We offer pro-active and proven compliance tools and methods.

*Click Here to request a copy of our "Recommended Applicant Process Flow Chart"

For information on the Affirmative Action Program services offered by THOMAS HOUSTON associates, inc., please call (800) 330-9000 or click here to schedule a convenient time to receive a call from a member of our Sales Team.

This information is intended to be educational and should not be considered legal advice on any specific matter.

OFCCP Directive 293 rescinded - TRICARE Jurisdiction "on hold"

During the Office of Federal Contract Compliance Programs (OFCCP) webinar "Status of Pending Compliance Evaluations of Entities that Participate in TRICARE Networks" held on April 25th, it was announced that Directive 293,  "Coverage of Health Care Providers and Insurers" was rescinded due to  "recent legislation and related developments in pending litigation."   

Recent legislation passed; the National Defense Authorization Act (NDAA)  specifically removes TRICARE network providers from being designated as Federal subcontractors for purposes of OFCCP jurisdiction.  The OFCCP has advised that scheduled compliance evaluations where the sole basis for jurisdiction is participation in TRICARE will be "put on hold".  OFCCP will continue to use a case-by-case approach to make coverage determinations. 

For information on the services offered by THOMAS HOUSTON associates, inc., call (800) 330-9000 or click here to schedule a convenient time to receive a call from a member of our Sales Team.

Affirmative Action 101 - Pop Quiz

1. Which of the following is NOT true of affirmative action? a. Includes positive steps to remedy the effects of past discrimination. b. Includes placement quotas to ensure equal employment. c. Serves as a management tool to ensure equal employment. d. Includes a diagnostic component that compares minority/female workforce to relevant labor pools. 　2. True or False: Title VII of the Civil Rights Act of 1964 protects white males from discrimination on the basis of race. 　 3. Affirmative Action is required because it: a. Is the law. b. Is a contractual agreement. c. Promotes "best" practices through Action Oriented Programs. d. Optimizes utilization of available labor pools. e. Enhances recruiting efforts. f. All of the aboveA written Affirmative Action Plan (AAP) documents your company's compliance in accordance with applicable Federal regulations. Developing an AAP can be a tedious and often frustrating process. The Project Teams of THOMAS HOUSTON function with a great understanding of these issues. Extensive experience with the concerns and processes of combining government compliance with astute human resource management allows us to alleviate the pressures involved in developing your AAP. For information on the affirmative action preparation services offered by THOMAS HOUSTON associates, inc., call (800) 330-9000 or click here to schedule a convenient time to receive a call from a member of our Sales Team. This information is intended to be educational and should not be considered legal advice on any specific matter.

Answers 1. b. Quotas are forbidden. Placement Goals are required in an affirmative action plan. Placement Goals serve as objectives/targets reasonably attainable and to measure progress toward achieving equal employment. 2. True - All races and both sexes are granted protection under Title VII of the Civil Rights Act of 1964. This is illustrated in the October 2010 OFCCP settlement with Tyson Refrigerated Processed Meats. 3. b. Affirmative action is a contractual agreement with a customer - the Federal government. The Office of Federal Contractor Compliance Programs (OFCCP) requires that Federal contractors and subcontractors take affirmative action to ensure that all individuals have an equal opportunity for employment. Although affirmative action itself is not a law, the objectives of civil rights laws are achieved through the practice of affirmative action. Promoting "best" practices through action-oriented programs, optimizing utilization of available labor pools and enhancing recruiting efforts are all important benefits of affirmative action.

What the OFCCP Director Knows and Believes - Speech delivered to AAPD

Following is the speech delivered by OFCCP Director, Patricia Shui, on Wednesday, March 21, to the leadership and staff of the American Association of People with Disabilities (AAPD):  

It's a great honor for me to speak with you this evening.

Here's what I know:

I know that disabled doesn't mean unable.

I know that there are qualified workers with disabilities all over this country who simply want a fair shot to find, compete for, secure and succeed in good jobs.

I know that too many of these workers are unemployed, underemployed and discouraged from seeking meaningful work. It's an issue we confront at the Department of Labor every day.

I know that we've "admired" the problem for too long. We've analyzed it and fretted over it enough.

I know that it is a persistent, intractable and insidious problem. But it is also an eminently solvable one.

In the 2 ½ years since President Obama appointed me to this job, I've come to know that this town can be – let's be honest – a little dysfunctional. But I know that where there is political will and civil discourse, we can close the disability employment gap.

I know that progress doesn't happen in a moment. It happens in a movement. And tackling the challenges of disability employment will require a full-scale movement that marshals the resources of government agencies like mine and engages the participation of employers, advocates, experts and individual workers like you.

We cannot do this alone.

I know that corporations are not the enemy any more than workers are all victims.

Looking around this atrium, it is clear that we have incredible business leaders who are committed to opening their doors of opportunity to this community.

We are grateful for your leadership.

As a point of privilege, I'd like to make a special note of Greg Babe, the President and CEO of Bayer Corporation. Last month, he sent my office a letter in response to a regulation we are proposing which seeks to improve employment opportunities for qualified workers with disabilities.  Greg wrote the following:  "I can tell you from experience that hiring, promoting, and retaining workers with disabilities is good for our business, good for our shareholders, and good for the communities in which we do business."

I know Greg could not be here tonight, but we want to thank him and to recognize the leadership team from Bayer who are here.

I know this sentiment is shared by so many of the sponsors of tonight's gala and by thousands of federal contractors who want to comply with the laws we enforce at the Office of Federal Contract Compliance Programs.

I know we need more Greg Babes who will not only show this sort of leadership in their own companies, but who will also serve as models to other employers.

As someone who has hired many people in my career, I can tell you that when people with disabilities apply for jobs, when they come in for that interview, they are not there in spite of their challenges. They are there because they refuse to let those challenges define them. In my experience they are exactly the kind of motivated employees we should all want to have in our workplaces.

You see, I know that work is not just about a paycheck. It's about self worth, dignity and financial stability.

I know that workers want to be treated fairly. They want to be respected in their jobs. But above all, they want to work.

Thirty years after the passage of the Rehab Act and two decades after the ADA, we have made much progress, but we have more to do.

I know that both Republicans and Democrats have taken leadership in this area. After all, the Rehab Act was passed by a Democratic Congress and signed by a Republican President.

I'm a parent. My daughter Aviva is here with me tonight. And what I know is that Republican parents of children with disabilities share the same hopes and aspirations as Democratic parents and, really, all parents: that their children will grow up to be capable, self-reliant, working members of society – and that they will be recognized for their inherent worth and value.

That's why the regulatory and enforcement work of the OFCCP is so important.

We know that telling federal contractors what they could do and should do, without giving them a way to measure success, doesn't work.

I know that what gets measured gets done. And this administration is in the business of getting things done.

Good faith is how we come to the table, but accountability is going to be the way we define our enforcement.

I know that the only way to level the playing field for employers and for workers is to provide clarity about what is required under the law. And that is our commitment.

Finally, I know that reasonable people can see a problem and come up with different approaches to solving it. We won't always agree, but we must strive to be agreeable.

I know that civil discourse is vital to our success and those who seek to inflame public opinion through demeaning rhetoric only end up demeaning themselves.

Our economy is recovering. But in order for it to be a truly "American" recovery, it must benefit the many and not just the few.

So, let me tell you what I believe:

I believe the efforts we are undertaking at the Department of Labor – to strengthen the affirmative action for people with disabilities – those efforts are not just going to make history…

I believe we are going to make possibility for 33 million working-age Americans with disabilities who deserve the opportunity to find their good jobs.

Thank you.

USCIS Seeks Public Comment on Revisions to Employment Eligibility Verification Form I-9

From the USCIS website: 


 WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today published a notice in the Federal Register inviting public comment on a revised Form I-9, Employment Eligibility Verification. Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States. The public is invited to comment on the revisions until May 29, 2012.
 Key revisions to the form include:

• Expanded Form I-9 instructions and a revised layout.
• New, optionaldata fields to collect the employee’s email address and telephone number.
• New data fields to collect the foreign passport number and country of issuance.  Only aliens authorized to work in the U.S. who have also recorded their I-94 admission number on Form I-9 will need to provide the foreign passport number and country of issuance.

The public may comment on the revisions by visiting http://www.regulations.gov/, which provides instructions on how to comment on the proposed revisions to Form I-9. The comment period runs for 60 days, beginning today and ending May 29, 2012. 

The current version of Form I-9 is available on USCIS’s online I-9 resource center at www.uscis.gov/I-9central. I-9 Central includes information about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. 
USCIS will post information regarding a new Form I-9 on I-9 Central once the form has been finalized.Until a new version is approved and posted, employers must continue to use the current version of the form.


 For more information on USCIS and its programs, visit http://www.uscis.gov/ .

ADA May Soon Require Disabled Employees Be Given Super Preference for Internal Vacancies

An employer should have to place a disabled worker into an open position, even if far more qualified employees are seeking the same vacancy. Sound like a legal requirement? It could be. In a recent case involving an employer’s obligation to accommodate a disabled employee by transferring her to a vacant position, the U.S. Court of Appeals for the Seventh Circuit appeared to indicate that the ADA required such an accommodation. However, because the three-judge panel’s belief was at odds with previous decisions, the Court affirmed dismissal of the case, but not without first inviting the entire appeals court to adopt a more employee-friendly standard.  
  
In E.E.O.C. v. United Airlines, Inc., the employer adopted new reasonable accommodation guidelines. Those guidelines specified that while transferring a disabled employee no longer able to perform the essential functions of his or her job to a vacant position could be an appropriate accommodation, the transfer process is competitive, meaning that though disabled employees will receive priority consideration, they will not be guaranteed the vacancy over superior candidates seeking the same position. The EEOC took exception and filed suit, asserting that the ADA requires the disabled employee be given the vacancy as long as the disabled individual is minimally qualified for the position. Because the Seventh Circuit had addressed this same issue in 2000, the district court granted the employer’s motion to dismiss. The EEOC then appealed, arguing that the Seventh Circuit should overturn its previous decision.

While the Court declined the EEOC’s request and reaffirmed the previous ruling — that the ADA does not require disabled employees receive preferential treatment for vacancies when a more qualified candidate seeks the same position — its endorsement of that ruling was tepid at best. While the Court noted, “the EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that is likely,” the Court stated that it could not overturn a previous decision absent a change in the governing statutory language or an intervening Supreme Court decision directly undermining the previous decision. Because neither had occurred, the panel was constrained by the 2000 decision and thus affirmed dismissal. However, after noting that other U.S. Courts of Appeals had reached different conclusions and again suggesting that the EEOC’s position was persuasive, the panel closed its opinion by “strongly” recommending that the full Seventh Circuit reconsider the issue on an en banc basis — the only mechanism for reversal of the Seventh Circuit’s current precedent short of Supreme Court reversal.

While the recent decision does not render any immediate change to the ADA landscape, it does portend both that the EEOC will continue pushing this issue and that a national rule of law requiring super-preferential treatment for disabled employees may be on the horizon. In light of the Seventh Circuit’s language, the likelihood that the EEOC will seek en banc review from the Seventh Circuit is high, and if that effort is unsuccessful, the EEOC also is likely to petition the Supreme Court for review. The EEOC also is likely to push the issue in jurisdictions where the circuit court of appeals has not opined on this issue and, in light of the Seventh Circuit’s tepid decision, it may find other circuits to be receptive. Employers looking to avoid the risks presented by this uncertainty — particularly in areas where the governing circuit has yet to weigh in on this issue — might be wise to give preferential treatment to disabled employees seeking internal transfers, and if better qualified candidates for the same position exist, employers should seek legal counsel to assist with making an appropriate decision.

·         Employment & Labor,

·         Foley & Lardner LLP

Lexology (03/19/12) Christopher Ward

This information is intended to be educational and should not be considered legal advice on any specific matter.

$3 million in back wages part of Fed Ex and OFCCP Settlement

From the OFCCP:  This morning U.S. Secretary of Labor Hilda L. Solis and OFCCP Director Patricia A. Shiu announced a major settlement in a discrimination case against shipping giant FedEx.

Following a seven-year investigation, OFCCP and FedEx have resolved allegations that the company’s hiring practices resulted in systematic discrimination against 21,635 workers who applied for entry-level positions at FedEx shipping centers in 15 states.

FedEx has agreed to pay $3 million in back wages and make 1,703 job offers to the affected applicants. The company has also agreed to undertake corporate-wide reforms to improve the way it conducts hiring at more than 500 FedEx Ground facilities across the county.

For more details, please see the press release which is attached here and available online. You can also check out this story in the New York Times.

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Under the current administration, OFCCP compliance officers have reviewed more than 12,000 companies that do business with the U.S. Government. In the past three years, OFCCP has recovered $33 million in back wages and almost 7,000 potential job offers for over 70,000 workers. 

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THOMAS HOUSTON associates, inc. can assist you in meeting the challenges that will arise as a result of the upcoming OFCCP's regulatory efforts. We offer pro-active and proven compliance tools and methods.

For more information on the services offered by THOMAS HOUSTON associates, inc., call (800) 330-9000 or click here to schedule a convenient time to receive a call from a member of our Sales Team.

This information is intended to be educational and should not be considered legal advice on any specific matter.

Statement by Secretary of Labor Hilda L. Solis on unemployment among veterans

From a March 20 statement by Secretary of Labor Hilda L. Solis:

"President Obama has put into place critical programs that will help our veterans. They include the Vow to Hire Heroes Act, which provides unemployed veterans with additional GI Bill benefits to qualify for jobs in high-demand sectors; the Returning Heroes Tax Credit, which provides incentives to businesses to hire unemployed veterans; and the Wounded Warrior Tax Credit, to encourage the hiring of veterans with service-connected disabilities.

"At the Labor Department, we have introduced the Veterans Gold Card to provide veterans with enhanced, priority services at 3,000 One-Stop Career Centers across the country; My Next Move for Veterans, so that veterans may go online and match their military occupations with civilian jobs; and the Veterans Job Bank Resource Directory, which allows veterans to search more than 500,000 job postings by companies.

"Our veterans have made sacrifices on behalf of the nation, and I ask all employers to renew their commitment to veterans, because the best way to honor our veterans is to employ them. No veteran should have to fight for a job at home after fighting to protect our nation."

For more information on the services offered by THOMAS HOUSTON associates, inc., call (800) 330-9000 or click here to schedule a convenient time to receive a call from a member of our Sales Team.

THOMAS HOUSTON associates, inc. can assist you in meeting the challenges that will arise as a result of the upcoming OFCCP's regulatory efforts. We offer pro-active and proven compliance tools and methods.

This information is intended to be educational and should not be considered legal advice on any specific matter.

American Job Center proposed to unify One-Stop Career Centers

On March 12, an announcement was made by the White House, Office of the Press Secretary that details of a streamlined re-employment system are being unveiled. 

One of the streamlining mechanisms of the President’s proposal is the creation of an American Job Center network to unify all Federally-supported One-Stop Career Centers and electronic resources.  The President’s Budget proposes a $50 million investment to improve and expand these workforce centers, and the President will launch part of this effort through executive authority.

Click here to read the full announcement

Status of Pending Compliance Evaluations of Entities that Participate in TRICARE Networks

On March 27, 2012, OFCCP Director of Program Operations Tom Dowd and Counsel Consuela Pinto will conduct a webinar to explain how the OFCCP is moving forward with compliance evaluations of entities that participate in TRICARE and also hold another federal contract or subcontract.

The webinar also will explain how OFCCP is putting compliance evaluations of those entities for which a TRICARE subcontract is the only basis of jurisdiction “on hold,” in light of the fact that this issue is currently being litigated in the Florida Hospital case.

Click here for more information and to register.

What's my List?

For each of the items below, identify the appropriate Form I-9 list of acceptable documents for a hire on March 14, 2012:

1. An unexpired, but cancelled US Passport.
2. A school ID card with no expiration date for the school year 2010-2011.
3. A Social Security card with the annotation "For Social Security and Tax Purposes Only".
4. A Social Security card with the annotation "Valid for work only with INS Authorization".
5. An expired driver's license with a paper document from the state department of motor vehicles (DMV) stating that the paper document serves as a temporary license.

(answers below)

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Form I-9 Acceptable Documents

List A - The documents on List A show both identity and employment authorization. Employees presenting a List A document should not be asked to present any other document.

List B - The documents in List B show identity only.

List C - The documents in List C show employment authorization only.

Some individuals who present a List A document, such as certain nonimmigrant students and exchange visitors, must also present additional documentation in order to prove their work authorization in the United States.

Generally, employers may choose whether or not to retain copies of documents employees present when completing Form I-9. Employers should uniformly apply the decision to avoid discrimination. However, employers/Federal Contractors who are enrolled in E-Verify are required by the terms of the E-Verify Memorandum of Understanding (MOU) to retain photocopies of employees' EAD cards (Form I-766) and Permanent Resident Cards (Form I-551) with employees' Forms I-9. (Article II.C.5.)

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Answers

1.     List A.  A U.S. Passport is acceptable for Form I-9 purposes if it is unexpired. Therefore, a U.S. passport that has been cancelled may still be acceptable for Form I-9 purposes, provided the document is unexpired. The U.S. Department of State cancels otherwise valid and unexpired U.S. passports when issuing renewals.

2.     This school ID card is not an acceptable document for any list for a hire on March 14, 2012. If the document contains no expiration date other than the school year, the school ID expires at the end of the school year printed on the document. All Form I-9 documents must be unexpired.

3.     List C. A Social Security Number is intended to be used for Social Security and tax purposes only (employment deductions), not for identification.

4.     This social security card is not an acceptable document. On September 14, 1992, SSA began printing the legend "VALID FOR WORK ONLY WITH INS AUTHORIZATION" on cards issued to noncitizens lawfully in the U.S. with temporary authority to work. In these cases, employers must look at the noncitizen's INS document to determine if the noncitizen has current authorization to work.

5.   List B. A state-issued temporary driver's license is acceptable provided it contains a photograph or identifying information including name, date of birth, gender, height, eye color, and address. If the temporary driver's license has conditions, such as that the expired license must accompany the temporary driver's license for it to be valid, then those conditions must be followed.

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Click here for more Q&As on acceptable Form I-9 documents.

THOMAS HOUSTON associates, inc. provides assistance in Form I-9 compliance. For more information on our Form I-9 Audit/Assessment, Self-Paced On-line training or Form I-9 Toolkit, please call 1 (800) 330-9000 or click here to schedule a convenient time to receive a call from a member of our Sales Team.

This information is intended to be educational and should not be considered legal advice on any specific matter.