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

EEOC Chair Issues Statement on Equal Pay Day 2013

Tuesday, April 9, 2013 is Equal Pay Day, the day that marks the end of the extra period of time that the average woman in the U.S. must work in order to earn what the average man earned during the previous year.

In 1963, a year before the enactment of Title VII of the Civil Rights Act, Congress passed the Equal Pay Act (EPA) to end wage disparities among employees who performed work requiring substantially equal skill, effort and responsibility under similar working conditions. At the time, Congress found that sex-based wage discrimination contributed to underutilization of the labor force and unfair competition. On signing the EPA, President John F. Kennedy said that the EPA "affirms our determination that when women enter the labor force, they will find equality in their pay envelope."

Ever since the passage of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, race, color, national origin, and religion, the EEOC has been at the forefront of the battle for equal pay. In 1978, the EEOC assumed responsibility of enforcing the Equal Pay Act. In addition to enforcing Title VII and the EPA, the EEOC also works to stop and remedy illegal pay discrimination under the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Non-discrimination Act.

This year will mark the 50th anniversary of the passage of the Equal Pay Act. Although we have come a long way since the days when gender-based salary inequities were explicitly condoned by law and corporate policies, vestiges of the past persist. Women continue to earn significantly less than men, even controlling for factors such as occupation, educational level, and hours worked. The gender pay gap is even larger when race and national origin are factored in for African American and Latina women.

In the EEOC's Strategic Enforcement Plan (FY 2013-2016), the Commission prioritized the enforcement of equal pay laws, and committed to enhanced enforcement of equal pay laws to eliminate compensation systems and practices that discriminate based on gender. In Fiscal Year 2012, EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation. The EEOC also continues to serve as a key member of the National Equal Pay Enforcement Task Force, a federal government initiative focused on ending the gender pay gap.

As we commemorate Equal Pay Day, we acknowledge the progress achieved in five decades since the Equal Pay Act took effect, but we also recommit ourselves to the goal of ensuring, once and for all, that the promise of the Equal Pay Act is realized for every worker in the United States of America. As President Barack Obama observed in his Proclamation for National Equal Pay Day, 2013: "Our country has come a long way toward ensuring everyone gets a fair shot at opportunity, no matter who you are or where you come from. But our journey will not be complete until our mothers, our wives, our sisters, and our daughters are treated equally in the workplace and always see an honest day's work rewarded with honest wages."

Source: EEOC

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

Closing the Equal Pay Gap: 50 Years and Counting

Today, April 9, represents the day in 2013 that women finally make up the difference in wages paid to their male counterparts during 2012. That’s right: Women have to work almost four more months than men in the same jobs to bring home the same amount of income.

Equal pay for equal work is, and should always have been, common sense. But in 2013 − 50 years after the signing of the Equal Pay Act − true parity is still elusive even though women currently make up nearly half the workforce and their earnings account for a significant portion of household income.

By one measure, the gap stands at about 18 cents difference per dollar, a figure based on an approach that uses weekly earnings data. The most common estimate is based on differences in annual earnings, about 23 cents per dollar. Whichever figure you look at, what’s truly troubling is that when women start at a disadvantage, they stay at a disadvantage. Over the course of a woman’s career, those lost wages can add up to hundreds of thousands of dollars. For women of color, the wage gap is even larger.

For millions of working women, the gap means less income to pay for necessities like housing, clothes and food. It’s less income to pay for their children’s education. And it’s less to go toward retirement. All of these reasons make equal pay more than just a women’s issue; it impacts families, communities − the whole economy.

Some people say that the pay gap is a myth, or it can be explained away entirely. But the reality is that it persists, even when other factors are accounted for. That’s why our work to inform employers about impact of pay inequality, and our efforts to equip working women with the tools they need to access accurate information about pay, is so critical.

To help accomplish this, we’ve created brochures to educate employees about their rights under the existing equal pay laws and enable employers to understand their obligations. To meet the diverse needs of today’s workforce, we translated the brochures into Spanish, Chinese, Vietnamese and French.

With the help of the Bureau of Labor Statistics, we also updated fact sheets that highlight women’s earnings nationally and by region. Additionally, we hosted a competition last year to develop smartphone apps to empower women to stand up for their right to equal pay.

To learn more about steps to close the pay gap taken by the department’s Women’s Bureau and its Office of Federal Contract Compliance Programs, join us for a Web chat this Friday, April 12, at 1 p.m. EDT. The department’s chief economist, Dr. Jennifer Hunt, also will be available to answer questions about current statistics and the gap’s economic impact.

You can also join us at 4 p.m. EDT today for an Equal Pay Day webinar with special guest speaker Martha Burk. If you live near Boston, join us April 10 for a forum to raise awareness about the current wage gap and the importance of women’s economic security and self-sufficiency.

Let us use this day as an opportunity to renew our commitment to ending the real and persistent problem of wage discrimination. Let’s use our voices to speak up and speak out for fairness and equality in all of our workplaces and for all of our communities.

Source: DOL

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

70% of Highest-Paid Obama White House Staffers Are Men

Seventy-percent of the White House staffers who made the top annual salary of $172,200 in 2012 were men and 30 percent were women, according to a White House report on staff compensation.

In addition, men on the White House staff are paid, on average, $86,260.89 and women are paid, on average, $76,162.65. That means the average man on the White House staff is paid about $10,098--about 13 percent--more than the average woman.

In Obama's White House, women on average earn only 88.3 percent of what the men earn.

Those numbers conflict with the pay-equity philosophy espoused by the president and his administration.

In signing legislation into law -- the Lilly Ledbetter Fair Pay Restoration Act -- in 2009, which was designed in part to help ensure pay equity between men and women, President Obama said, "So, in signing this bill, I intend to send a clear message: That making our economy work means making sure it works for everyone. That there are no second class citizens in our workplaces, and that it's not just unfair and illegal--but bad for business--to pay someone less because of their gender, age, race, ethnicity, religion or disability."

"And I sign this bill for my daughters, and all those who will come after us, because I want them to grow up in a nation that values their contributions," said Obama, "where there are no limits to their dreams and they have opportunities their mothers and grandmothers never could have imagined."

The current gender disparity in Obama White House compensation is similar to the gender disparity in compensation that was evident in Obama's Senate staff.

In 2008, CNSNews.com reported that Obama, on average, paid women on his Senate staff only 78 percent of what he paid men--with the average man on Obama's Senate staff getting an annual salary of $57,425.00 and the average woman getting an annual salary or $44,953.21.

In 2012, according to a report to Congress on White House staff salaries, there were 466 total paid White House Office employees (there were also two unpaid staffers) -- 234 were women and 232 were men.
The highest annual compensation for any White House staffers in 2012 was $172,200, and a total of 20 people earned that top salary.

Among those 20 employees, 14 were men and 6 were women--making 70 percent of the highest-paid White House staffers men, and 30 percent women. (White House Top 20 Salaries Male and Female.pdf)

Among the men making $172,200 a year at the White House, for example, were Chief of Staff Jacob Lew, Press Secretary Jay Carney, Senior Adviser David Plouffe, Assistant to the President for Economic Policy Eugene Sperling; Director of Speechwriting Jonathan Favreau, and John Brennan, assistant to the president for homeland security and counterterrorism.

The six women making $172,200 were senior adviser Valerie Jarrett, Chief of Staff to the First Lady Christina Tchen; Deputy Chief of Staff for Policy Nancy-Ann DeParle, Deputy Chief of Staff for Operations Alyssa Mastromonaco, Director of the Domestic Policy Council Cecilia Munoz, and Counsel to the President Kathryn Ruemmler. (White House Top 20 Salaries Male and Female.pdf)

For the total 234 women who worked one the White House staff, salaries ranged from $172,200 to $41,000. The average for all of them was $76,162.65. (WH Office Employees, Female, 2012.xls)

For the 232 men on the White House staff, salaries also ranged between $172,200 and $41,000. The average salary for them was $86,260.89. (WH Office Employees, Male, 2012.xls)

On average, in the Obama White House, men make 13.26 percent more than women, and women are paid only 88.29 percent of what the men are paid.
The male employees make an average of $10,098 more than the female employees make.

CNSNews.com sent several e-mail and telephone inquiries to the White House for comment on this story but the White House press office did not respond.

The White House has been required since 1995 to submit a report to Congress detailing the title and salary of every employee at its office. As part of President Obama's "commitment to transparency," the 2012 White House Office report is available to the public on the White House's website, as are reports from the first three years of the president's first term.

In November 2010, President Obama, who earns $400,000 annually, froze the salaries of every White House staffer who makes over $100,000, meaning the only way for an employee over that benchmark to receive a raise would be through increased responsibilities or a different job. The maximum salary has been $172,200 since 2008, when it was increased by 2.5% from $168,000.

Source: SNSNews.com

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.