How to Put Action into Your Affirmative Action Workshop

Three Day Affirmative Action Workshop presented by EAF Services, Inc.

Stepping Through the Affirmative Action & Audit Process

October 27, 2015
This program is designed to provide a fundamental understanding of the components, technical requirements and objectives of a compliant written Affirmative Action Plan and critical program elements.
Full agenda

Implementing an Effective Affirmative Action Program

October 28, 2015
This program will provide a high level approach to the implementation of an organization's Affirmative Action (AA) Program. It will answer the question, "Now that our Affirmative Action Plans are written, what do we do next?"
Full agenda

Affirmative Action Data Collection Techniques

October 29, 2015
This program is designed for HR and IT professionals and system users responsible for the preparation and maintenance of employment data as related to Affirmative Action Program requirements.
Full agenda

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HR Certifications

EAF is an HR Certification Institute Approved Provider. It means that this program has met the HR Certification Institute's criteria to be pre-approved for recertification credit.

Supreme Court Hears Arbitration Case, Accepts Affirmative Action Case

The U.S. Supreme Court, on March 25, 2013, weighed whether a party to a commercial arbitration agreement can be compelled to submit to class arbitration when the agreement does not authorize such proceedings. A ruling in that decision is expected by June 2013.

Also on March 25, the court agreed to decide in the 2013-14 term whether a state can constitutionally ban the use of race in public college admissions decisions.

Although neither case arises in an employment setting, both decisions will potentially have implications for the workplace.

Permissibility of Class Arbitration

Can an arbitrator interpret an arbitration agreement to allow for class arbitration? That was the question before the court when it heard oral arguments in Oxford Health Plans v. Sutter. The high court’s decision is likely to impact how many employment disputes are resolved in arbitration—as class actions or as individual claims.

Sutter involves an arbitration agreement in a commercial context between a doctor and an insurer that covers “all disputes” without any reference to class actions. The arbitrator interpreted the agreement to allow the case to proceed as a class action even though it was silent on that subject, and the lower federal courts refused to reverse the arbitrator. The Supreme Court will decide whether the arbitrator could interpret the agreement to allow for class arbitration or whether the dispute could only proceed as an individual claim.

The case is important to employers, according to attorney Richard Alfred, chair of Seyfarth Shaw LLP’s national wage and hour litigation practice, because the past 10 years have seen an explosion of class-action lawsuits by employees against employers. However, “class actions do not serve the interests of employers or employees—they are extremely costly for employers and take many years without resolution for employees,” he said.

Alfred noted that many employers have agreements with employees that all disputes will be resolved in arbitration on an individual basis, a procedure far less expensive and much faster than court litigation—similar to the way disputes are usually resolved under union contracts.

But he said lawyers representing employees have argued that even though their clients agreed to individual arbitration, they should still be allowed to litigate employment claims as class actions in arbitration if not in court.

The decision issued by the high court will apply to arbitration in the employment context as well as to commercial arbitration.

Use of Affirmative Action in Public University Admissions

Although the court has one affirmative action case pending—questioning the constitutionality of an admissions plan at the University of Texas that makes some use of race—it chose not to await the outcome of that action before deciding to hear another case next term.

At issue in Schuette v. Michigan Coalition to Defend Affirmative Action is the validity of Michigan’s Proposal 2, adopted by the state’s voters in 2006 by a 58 percent to 42 percent margin. The Michigan law bans preferential treatment toward any candidates in public university admissions. A federal appellate court struck down the law by an 8-7 vote.

The majority of the appeals court said the Equal Protection Clause of the 14th Amendment does more than guarantee equal treatment under the law. It also prevents laws from being passed that change the political process to impose extra burdens on minorities.

The case will be decided by only eight members of the Supreme Court because Justice Elena Kagan is not taking part.

In a friend-of-the-court brief filed in the Texas case, the Equal Employment Advisory Council (EEAC), a nonprofit association that provides guidance on equal employment and affirmative action compliance, discussed the significance for employers of universities’ use of affirmative action: “Any decision that prevents our nation’s public universities from utilizing race- or gender-conscious measures to attract, admit, educate and graduate diverse student bodies will have a direct, negative impact on the ability of federal contractors to satisfy their federally imposed affirmative action mandates,” the EEAC said. It “will pose significant hurdles for all employers seeking to derive a competitive business advantage by matching the diversity of their skilled workforces to the diversity of their customers and markets.”

The EEAC urged the Supreme Court “to be cognizant of these business needs and announce clear standards that allow colleges and universities some means of continuing to supply America’s business with qualified diverse candidates.”

Source: SHRM

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

Affirmative Action Good Faith Efforts Webinar

Affirmative Action Good Faith Efforts—Understanding the Impact on Your Organization

Wednesday, February 27, 2013 2:00 PM - 3:00 PM (Eastern Time)

Genesys Conferencing Webinar
Room entrance begins at 1:45p.m. EST
Presenter: Sybil Randolph
Webinar

Registration Site: http://www.regonline.com/builder/site/Default.aspx?EventID=1175292

  
The Office of Federal Contract Compliance Programs (OFCCP) is increasingly reinforcing federal contractors’ obligations to make good faith efforts to meet their affirmative action placement goals. Affirmative action plans (AAPs) must show good faith efforts were realized in advertisement, recruitment, promotions, terminations, and trainings. In her informative webinar, Diversity Expert and Managing Human Resource Consultant, Sybil Randolph, PHR, will discuss the requirements surrounding AAP good faith efforts, and provide resources and insight on how to effectively meet these standards in today’s changing compliance environment.

Source: AAAA

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

American Association for Affirmative Action 2013 Conference

This year’s event will be held Tuesday, May 07, 2013 – Friday, May 10, 2013 in San Antonio, Texas.

John Quiñones and Patricia Shiu to lead cast of speakers at the 39th Annual American Association for Affirmative Action Conference.
 
This event is designed for professionals who are responsible for diversity and EEO/AA administration within organizations of all sizes. Equal opportunity directors, affirmative action officers, human resource professionals, diversity consultants and managers, industrial relations specialists, labor relations advisors, career planning specialists, prospective managers, labor and employment lawyers and other professionals will benefit from attending this conference.

Register for the conference at: aaaaconference.org
 
Source: AAAA

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

Are the Changes to the Scheduling Letter A Formality?

When the Office of Federal Contract Compliance Programs (OFCCP) published its notice of proposed changes to the Scheduling Letter and Itemized Listing over a year ago (May 2011), the reaction from the contractor community was clear; the reality of the burden and risks involved with the proposed changes were far greater than the estimates made by the OFCCP. That reaction and legitimate employer confidentiality concern were disregarded by the OFCCP as the Office of Management and Budget received the revision request from the OFCCP in September of 2011 with little to no change.

To date there has been no conclusion on this matter as the expiration date of the previously approved Scheduling Letter and Itemized Listing is extended on a monthly basis.

It the meantime compliance evaluations have become increasingly detailed and burdensome. As one legal analyst recently wrote, "OFCCP is taking the position it can get anything it wishes at Desk Audit upon showing a contractor has failed a test for an "indicator", even if most contractors fail the indicator test OFCCP designs." (John Fox, May 2012, The Frito-Lay ARB Decision: Trouble Ahead for Contractors).

This statement brings to mind the rescission of the Voluntary Guidelines for Self-Evaluation of Pay Practices by the OFCCP. This action / notice included this statement in the Federal Register:

"OFCCP believes it is unnecessary to issue new Federal Register notices articulating its interpretations of Title VII principles related to compensation discrimination"

Adding these things together with the recent Frito Lay decision itself gives the impression that the OFCCP does not need a revised Scheduling Letter to obtain as much information as a contractor is willing to provide during the Desk Audit. The OFCCP does, in fact, seem to be receiving volumes of data simply by asking: perhaps due to uncertainty in the contractor community as to what the agency is legally entitled to during a Desk Audit; and perhaps in an attempt to stave off an on-site meeting - something many contractors avoid at all costs.

While the revisions to the Scheduling Letter include administrative issues such as leave policies and accommodations, one of the major differences would be the vast amount of compensation data required to be submitted based upon a February 1 snapshot date (reportedly due to January 31 W-2 filing requirements) in electronic format. But while there was a unified uproar against such a year ago, one-by-one contractors are acquiescing to the OFCCP's data requests as a matter of course.

The current practice of providing additional data as requested may require more investigative effort on the part of Compliance Officers and perhaps longer audits for contractors; however, it does seem a more appropriate course to follow as it also provides contractors the opportunity to explain their internal system(s) and how they operate in a nondiscriminatory fashion. This is something annual data alone simply cannot provide.

Do we really need a new Scheduling Letter and Itemized Listing as the agency appears to receive the information requested once they establish the legal nexus? Or is it possible to carry-on working in a collegial fashion - each side understanding the other has a job to do and respecting the other's time, effort and responsibilities. Only time will tell...

For information on our Affirmative Action and Compliance Evaluation Preparation and Representation Services, 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.

The OFCCP's Early Warning System - Did You Get One?

Corporate Scheduling Announcement Letters (CSAL), dated June 29th, have been sent by the Office of Federal Contract Compliance Programs (OFCCP).

The OFCCP has developed the CSAL to keep federal contractors informed in the event of a potential compliance evaluation. If there is an actual compliance evaluation, federal contractors will receive a scheduling letter, with detailed submission instructions on what to submit for evaluation within a 30 day timeframe.

The CSAL, generally addressed to the Chief Executive Officer, is notification to a corporation that one or more of its establishments are on the list of contractor establishments selected to undergo a compliance evaluation during the scheduling cycle. The CSAL should be considered an "early warning" of a compliance evaluation at ANY establishment within your company. If your company has received a CSAL, it is critical that preparations begin now.

To gain more information on what is involved in preparing for a Compliance Evaluation, visit our Learning Library and select

"Understanding Compliance Evaluations"

You will learn what to do when an actual Scheduling Letter is received, the various types of compliance evaluations, best practices in preparation for your audit and the most frequently cited violations by the OFCCP.

For more information on our COMPLIANCE EVALUATION preparation and representation services or a better understanding of what you should do if your company received a CSAL, please call (800) 330-9000, or click here to schedule a convenient time to receive a call from a member of our Sales Team.

See a sample CSAL

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

Home Depot settlement with DOJ includes revisions to Military Leave of Absence Policy

Source:  Justice News

The Justice Department announced today that it has reached a settlement with Home Depot U.S.A. Inc., to resolve allegations that the company violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) when it terminated the employment of an Army National Guard soldier.  

The department’s complaint alleged that Home Depot willfully violated USERRA by terminating the soldier's employment because of his military service obligations.   The Iraq War veteran, worked as a department supervisor while at the same time serving in the Army National Guard.   Throughout his employment with Home Depot the soldier took periodic leave from work to fulfill military obligations with the National Guard.   According to the Justice Department’s complaint, the soldier was removed from his position as a department supervisor after Home Depot management officials openly expressed their displeasure with his periodic absences from work due to his military obligations and further indicated their desire to remove him from his position because of those absences.  

Under the terms of the settlement, embodied in a consent decree that has been submitted for approval to the federal district court, Home Depot will provide the soldier with $45,000 in monetary relief and make changes to its Military Leaves of Absence policy.   The settlement further mandates that Home Depot review its Military Leaves of Absence policy with managers from the district where Mr. Bailey worked.

Read the full news release

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.

Affirmative Action or Equal Employment Opportunity?

Which of the following statements apply to Affirmative Action (AA) and which apply to Equal Employment Opportunity (EEO)? (Answers Below)

1. Includes non-discrimination laws that cover most employers with at least 15 employees, most labor union and employment agencies.
2. Includes policies, and procedures, going beyond compliance with non-discrimination laws, that include (1) thorough, systematic efforts to prevent discrimination from occurring or to detect it and eliminate it as promptly as possible, and (2) recruitment and outreach measures.
3. Required for nonconstruction contractors with 50 or more employees and (i) a Federal contract of $50,000 or more or (ii) Government bills of lading which in any 12 month period, total or can reasonably be expected to total $50,000 or more or (iii) serves as a depository of Government funds in any amount or (iv) is a financial institution which is an issuing and paying agent for US savings bonds and savings notes in any amount.
4. Related protections are guaranteed by Federal and state fair employment laws.
5. The Office of Federal Contract Compliance Programs enforces the contractual promises of those who do business with the Federal government.
6. Violations may result in cancellation, termination or suspension of contracts in whole or in part and debarment from further contracts for an indefinite or fixed term.
7. The central premise is that, absent discrimination, over time a workforce, generally, will reflect the gender, racial and ethnic profile of the labor pools from which recruitment and selection occurs.
8. Includes a Private Sector Enforcement program that resolves charges of discrimination.

Generally speaking, EEO means freedom from discrimination on the basis of sex, color, religion, national origin, disability and age. EEO rights are guaranteed by Federal and state fair employment laws and are enforced by the Equal Employment Opportunity Commission (EEOC) and its state counterparts.

Affirmative action, established through a written plan (AAP), policies and procedures, is an employer's standard for proactively recruiting, hiring and promoting women, minorities, disabled individuals and veterans. Affirmative action is intended to amend historical wrongs and eliminate the present effects of past discrimination. AAPs include numerical measures with the intent of increasing the representation of minorities. Federal contractors above certain dollar limits are required to institute AAPs under Executive Order 11246 and its regulations. The Office of Federal Contract Compliance Programs is charged with enforcing contractor affirmative action mandates.*

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

EEO related statements: Numbers 1, 4, and 8

AA related statements: Numbers 2, 3, 5, 6, and 7

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.

__________________________________________________________________
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. 

__________________________________________________________________

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.

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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.