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What You Need to Know About the New Pay Reporting Requirements – HR Unlimited, Inc

https://hrunlimitedincblog.wordpress.com/2016/07/21/what-you-need-to-know-about-the-new-pay-reporting-requirements/

Fifty years ago – give or take—the United States set out to eradicate discrimination. As a nation, we’ve made great strides in ensuring equal opportunity for all, without regard to race, religion, national origin, sex, disability, as well as sexual orientation and gender identity. We now see greater workplace diversity, and equal employment opportunity, which seemed all but nonexistent 50 years ago. That is not to say, however that we do not still have a long way to go. In particular, our President, and by extension, the EEOC and OFCCP have targeted pay equity as one area in need of improvement. “More than 50 years after it became illegal, it [pay discrimination] remains a persistent problem for many Americans”, says EEOC Chair Jenny R. Yang. While it’s all well and good to identify a problem, what, if anything do the EEOC and OFCCP propose to do about it? The short answer: a joint effort to collect pay data. The reason, according to Ms. Yang: “This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws.”

How will the two agencies go about collecting the data—and from where exactly will they get it? Recently they announced their not-so-secret weapon: the EEO-1. For those of you who already file EEO-1’s, you may be wondering, “How will the EEO-1 help, when there is nowhere on the form to report such information?” You need not fear! Forms were made to be updated and this one is no exception. The EEO-1 will be updated to include fields or sections for providing this information. If you are required to file these forms you can see this as a good-news/bad news scenario. The “bad” news is that you may now have to report even more information to the EEOC/OFCCP, which in turn usually means more record keeping. The “good” news is that: a) the additional information simply gets added to an additional form with which you are already familiar, i.e. you don’t have to fill out and learn a separate form; and b) if you aren’t required now to file an EEO-1 you won’t be by reason of this new requirement; and c) not everyone who must file an EEO-1 will have to provide pay data, and you may be one of those who does not have to do so.

In and of itself, the pay reporting requirements are nothing new. The EEOC had already advanced this proposal, with an initial public comment period of February 1 through April 1, 2016. The EEOC received over 300 public comments in response, held a public meeting at EEOC headquarters on March 16, 2016 and listened to testimony and collected information from studies and academic literature on compensation, discrimination and collecting pay data. In response, the EEOC adopted certain suggestions, made some revisions and has published its revised proposal to change the EEO-1 and pay reporting requirements, and has provided a thirty-day public comment period. Interested parties have until August 15 to comment. Let’s take a look at the key changes, whether you are impacted by them, and if so, what they mean for you.

First, who will now have to report pay data? Bottom line: only federal contractors with 100 or more employees have to file the EEO-1 and provide the pay information. As you can see, while this new requirement only applies to federal contractors, it does not apply to all contractors. Therefore: private employers with fewer than 100 employees do and will not to file an EEO-1 or report pay data. Federal contractors with 50-99 employees will still have to file the EEO-1, but will not have to report pay data. Federal contractors with 1-49 employees do not file the EEO-1 or report pay data.

Next, assuming you are required to file the “new and improved” EEO-1, what information must you provide? In a nutshell, you must provide W-2 income data and hours worked data. You will report the number of employees within certain “pay bands” (more on that in just a moment) using W-2 Box 1 income data. In addition to wages and salary, this information will include commissions, tips, bonuses, overtime and other supplemental pay. How will you report “hours worked”? For non-exempt employees you will report their hours worked as you would under the FLSA. What about those of your employees exempt from the FLSA’s minimum wage and overtime requirements? You have two choices. You may either:

Report 40 hours a week for full-time exempt employees, and 20 hours a week for exempt part-time employees, multiplied by the number of weeks they were employed during the EEO-1 reporting year; or

Provide actual hours worked by the exempt employees during the EEO-1 reporting year, if you already maintain accurate hours of those records.

You Didn’t Discriminate in Your Hiring? Prove It! – HR Unlimited, Inc

https://hrunlimitedincblog.wordpress.com/2016/07/07/you-didnt-discriminate-in-your-hiring-prove-it/

Last week, the OFCCP reached a settlement of hiring discrimination charges with Jennie-O Turkey Stores. Jennie-O Turkey is the second-largest turkey processor in the country and holds a $360 million contract with the U.S. Department of Agriculture, which in turn supplies food to schools and food banks. The OFCCP alleged that Jennie-O Turkey Stores’ selection practices discriminated against qualified female applicants for laborer positions between February 2009 and February 2010. Applicants did not undergo any pre-employment testing as part of the selection procedures. The OFCCP found that Jennie-O disproportionately granted interviews to men over women applicants during one phase of the hiring process.

In addition to its proactive cooperation with the OFCCP to settle the matter, Jennie-O agreed to offer laborer positions to 53 qualified female applicants and to pay $491,861 in back wages to 339 applicants denied entry-level jobs at its turkey-processing facility, located in Wilmar, Minnesota. Jennie-O also agreed to train its hiring personnel to prevent any such discriminatory hiring practices going forward. As with many such settlements, Jennie-O did not admit liability and it made a statement that it disagrees with the OFCCP’s findings and is committed to promoting and maintaining a discrimination-free workplace, and that the settlement was “a way to avoid costly litigation and move forward with our business”.

How did the parties arrive at the numbers it did? The figures are based on OFCCP estimates. The OFCCP argued that if there were no discrimination involved, the selection rate would be 35% women. That rate would have yielded 53 women. As for the back pay amounts, are based on what the female applicants would have earned if hired by Jennie-O minus what they would likely have earned working elsewhere, leading to a minimum payout of $1450 a person. The OFCCP will send notices to women who applied for the laborer positions between February 2009 and February 2010 and Jennie-O will offer positions within that group of previously rejected female candidates.

We have written before about large settlements with large federal contractors and have made recommendations to our readers as to how to avoid ending up in those same situations. Those recommendations have included training, reviewing policies and procedures, beefing up outreach and recruitment. Those recommendations are still sound and we stand by them. These recommendations, however assume that the contractor did in fact discriminate or at the very least failed to take appropriate steps to ensure that it didn’t do anything discriminatory.

What if the contractor didn’t actually discriminate though? What if the contractor in fact made all the efforts it should have made to ensure appropriate representation of all protected classes under Affirmative Action laws? What if discrepancies are caused by factors not attributable to any action or omission on the contractor’s part? If that were so, how would the OFCCP be achieving these types of settlements? Perhaps, some of these cases are indicative of something else…

If the contractor didn’t actually discriminate or fail to take steps to avoid discriminating, and if the contractor in fact took all the steps it should have in its outreach and recruiting efforts, where could it have gone wrong? If you are asking that question and you don’t know the answer, then you, like these other contractors have one major, though often overlooked area that you will want to re-visit immediately: recordkeeping.

You may well know that OFCCP regulations already require, sometimes implicitly, sometimes explicitly that you create and maintain records related to your Affirmative Action Program. If you are lax with your recordkeeping, you may already be in violation of those regulations, but that is not really our focus right now. You can review the regulations about recordkeeping in order to know which records are required by regulation. You can also review the current scheduling letter that the OFCCP sends to contractors prior to the commencement of a Compliance Evaluation and see what documents you should create and maintain in preparation for such an eventuality. Putting aside these requirements, you still need to create and maintain records or you can find yourself in the same position in which Jennie-O and a number of other similarly situated contractors find themselves.

Let’s assume for the moment that Jennie-O did everything it should have done to recruit and hire qualified female applicants. Let’s assume it offered laborer positions to the appropriate percentage of qualified female applicants. What if those applicants turned down the job offers or what if they tried finding the right percentage of qualified female applicants, and their recruiting and outreach efforts were everything they should have been? What if they trained their hiring personnel accordingly? What would be the problem, then? What if there is no record of any of that?

Here’s the nauseating conclusion. Even if they did everything they should have done, if they didn’t document those efforts, if they didn’t document the results and the reasons, if they didn’t document why they hired or rejected certain candidates, they have no proof. As far as the OFCCP is concerned, there is a discrepancy in hiring, and the contractor didn’t do what it was supposed to do to ensure an appropriate number of hires among qualified female candidates, and/or the contractor discriminated. Why is that? Because there is no proof that the contractor did in fact do what it was supposed to do. If you are an H.R. practitioner, you have probably heard sayings, such as “If it’s not in writing it didn’t happen”, or “If you didn’t document it you didn’t do it”. Literally that may not be true, but practically it is—because if the OFCCP comes knocking and finds a statistical disparity that you cannot explain or refute, then, you will likely be found to have discriminated – even though you didn’t really.

Yes, you should engage in appropriate outreach and recruitment efforts to attract, hire, retain and promote qualified female, minority, veteran and disabled candidates. Yes, you should train your hiring personnel in appropriate recruitment and hiring practices. Yes, you should, of course, have your Affirmative Action Plans and all required statistical analyses readily available. You should also document all the efforts you have made to recruit and hire qualified female, minority, disabled and veteran candidates. You should document who you hired, who you rejected and why. If there are other reasons why, despite doing everything you should have there are still discrepancies between what the OFCCP says your numbers should be and what they are, you’ll be able to explain it. That documentation may well be enough to save you from an audit or a lawsuit. At the very least, if you do have to make a statement to the media, it will be credible, because your documentation will support it.

For more information contact Ahmed Younies at (714) 426-2918, x 1 or ayounies@hrunlimitedinc.com.

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Remembering Jose Franco, Champion of Affirmative Action and Equal Employment Opportunity – HR Unlimited, Inc

https://hrunlimitedincblog.wordpress.com/2016/06/30/remembering-jose-franco-champion-of-affirmative-action-and-equal-employment-opportunity/

The Equal Employment Opportunity/Affirmative Action community has suffered a terrible loss with the passing of José Franco last week-end. I offer this eulogy for not only to remember José, but also to convey the magnitude of this loss to those who did not have the privilege to know him.

José was the consummate advocate for civil rights, who worked tirelessly to eradicate workplace discrimination against women, minorities, veterans and the disabled and many of us looked to him as a mentor and role model. Jose was born in Brooklyn to a Spanish immigrant father and a coal miner’s daughter. In New York City he was considered a gifted student. That changed, and José experienced the effects of discrimination for the first time when in fifth grade he moved with his family to Arizona, where his teacher’s perception of him as Mexican and therefore less capable of learning rendered him a barely passable student. Only after a fresh start in another school, where he registered as “Joseph” did his grades once again reflect his superior abilities. Conversely, José also experienced the benefits of Affirmative Action when he was recruited by and admitted to Duke University and went on to earn his Bachelor’s Degree in Political Science in 1972. From that time on, as Jose described it, he was “baptized into the civil rights movement”.

From 1972 until 2001, José worked for the office that eventually became known as the Office of Federal Contract Compliance Programs (OFCCP), working his way up to Regional Director of Operations of the OFCCP’s San Francisco office. In his almost 30 years working for the OFCCP, Jose functioned as a training coordinator, technical expert on operating procedures and policies, conducted countless compliance reviews and investigating complaints of employment discrimination by federal contractors. Jose also became involved in enforcing the requirements of Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act and numerous investigations of complaints of discrimination based on race, religion, national origin, sex, veteran status and disability, and several precedent-setting systemic discrimination cases.

Although José retired from the OFCCP in 2001, his work on behalf of the EEO/AA community never stopped. Jose became an EEO Consultant. In fact he was known as the EEO Doctor, working with federal contractors to design, implement and update administrator-friendly affirmative action programs, and assisting them in responding to external audits and investigations of their personnel practices. José was elected and set to serve as a member of the American Association for Access Equity and Diversity’s (AAAED)’s nominating and elections committee for the coming 2016-2018 term. I for one will mourn the loss of the opportunity to serve with him in that capacity on the AAAED. I also know that these accomplishments, impressive as they are, do not begin to describe the extent and depth of what José gave the EEO/AA community and the unbelievable void now created by his passing. It will take many of us together to even begin to fill his shoes.

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Is it Time for a New Approach to Workplace Harassment Prevention? The EEOC Says “Yes” – HR Unlimited, Inc

https://hrunlimitedincblog.wordpress.com/2016/06/28/is-it-time-for-a-new-approach-to-workplace-harassment-prevention-the-eeoc-says-yes/

The EEOC issued a multi-pronged call to action in the Final Report of its Select Task Force on the Study of Harassment in the Workplace on June 20, 2016. The Task Force acknowledged that in the thirty years since the landmark case, Meritor Savings Bank v Vinson (holding that workplace harassment is an actionable form of discrimination under Title VII of the Civil Rights Act) “we have come a far way…but sadly and too often still have far to go”. In thirty years, workplace harassment persists, and it continues, too often, to go unreported. The EEOC therefore convened a Task Force in January 2015 and set out to answer, among other questions, “[I]s there something we’ve been missing?”

So, who was on this Task Force, what exactly did it do and what did it find out? If workplace harassment remains a problem, why did the Task Force need to meet for 18 months, hold many meetings and issue a 120-page report to tell us that? Presumably many of us could have come up with the same conclusions. To be fair, the focus of the report was not merely to see what if any progress has occurred, and what if any problems remain, but rather on prevention. In Commissioners’ Feldblum and Lipnic’s own words:

As commissioners of an enforcement agency, we could have taken a cynical approach. We could have assumed that some people will always engage in harassment and that we cannot expect to control how people behave in increasingly diverse workplaces. That is especially so in an environment where every manner of rude, crude, or offensive material can be accessed and shared with others with a few strokes on a phone. We could have suggested that the Commission simply continue to do what it has done well for decades – investigate and settle charges, bring litigation, provide legal guidance, hear complaints from federal employees, and provide outreach and education.

We set cynicism to the side. We want to reboot workplace harassment prevention efforts.

-Feldblum, Chai, and Victoria Lipnic. Select Task Force on the Study of Harassment in the Workplace Report. Rep. EEOC, 20 June 2016. Web.

We know the Task Force ultimately convened to find out what more could – and should—be done to prevent workplace harassment. Its 16 members consisted of representatives of academia from various social science disciplines, legal practitioners on both the plaintiff and defendants’ sides, employers and employee advocacy groups and organized labor, from all parts of the country.

Wait a minute. If harassment continues to go unreported so often, doesn’t that suggest that the issue is not as big a priority to employees as we thought? If so, do we need to be so concerned about improved response or prevention methods? The EEOC answers that question as well in Part II, Section D of its report, arguing “There is a Compelling Business Case for Stopping and Preventing Harassment”.

What is the business case? Workplace harassment, like so many phenomena, triggers direct and indirect costs. The direct costs are as follows:

Steering Clear of the OFCCP in Your Hiring and Pay Practices – HR Unlimited, Inc

https://hrunlimitedincblog.wordpress.com/2016/06/16/steering-clear-of-the-ofccp-in-your-hiring-and-pay-practices/

The OFCCP promised to focus on ensuring pay equity by federal contractors. Not only has it delivered, but it has gone at least one step further, in a very creative, innovative and proactive approach. Starting at least as far back as late 2013 the OFCCP began rooting out contractors that engage in steering practices. No, we are not referring to the operation of motor vehicles. Steering in the world of the OFCCP –and, to be fair, the EEOC as well—refers to a practice in which an employer steers people belonging to legally protected classes to certain types of jobs, which in turn leads to pay disparities among certain groups of people. In late 2013, the OFCCP issued Directive 307, designed to help Compliance Officers find evidence of that very practice when conducting Compliance Evaluations.

Now, many expect to see this theory used in hiring discrimination cases. It makes sense, and it’s fairly obvious: steering certain groups of people to certain types of jobs and away from others, without regard to actual qualification is classic hiring discrimination. But pay discrimination? Really? Is the OFCCP overreaching here? Well, maybe not. Let’s take a look.

We have heard and read many statistics that tend to prove that a significant pay gap between similarly situated, similarly qualified men and women continues. Certain types of jobs tend to pay better than others. Men tend to be more highly concentrated in more highly paid jobs. Women tend to be more highly concentrated in lower paying jobs. If an employer is steering women toward jobs that tend to pay less and men toward jobs that tend to pay more, then Voilà that employer is likely guilty of both hiring and pay discrimination. We have heard of similar occurrences of pay gaps between similarly situated, similarly qualified African American and Caucasian workers.

Before the OFCCP can assert a claim of steering in either the hiring or compensation context, it must meet two criteria:

Promotions without internal posting: It must channel certain employees/applicants to certain jobs, such that the choice/decision to apply for a specific job is taken away from the applicant/employee. For example, a contractor does not post internal positions, but leaves it to management to promote existing employees or moves applicants or employees between requisitions.

Target channeling: The channeling must result in a lack of diversity in jobs and/or pay discrepancies between certain classes of people. The placement decision(s) results in jobs that are segregated or held by a specific gender, race, ethnic group, etc., and pay differences exist among those jobs that were subject to the employer’s decision(s)

Stereotyping: Think Fast, Think Slow – HR Unlimited, Inc

https://hrunlimitedincblog.wordpress.com/2016/06/02/stereotyping-think-fast-think-slow/

Strangers will sometimes look at my family and try to work out the relationships. My mother is Scottish and my father is Chinese. My husband’s heritage is Irish, our three biological sons look Scotch-Irish, and our daughter, who was adopted from China, looks like her Chinese grandfather. We clearly are a family unit, but people wonder how the pieces fit together. This is a basic human tendency – trying to make sense of others.

Social Cognition is an area of psychology that focuses on how people judge or make sense of social situations and of others’ behavior. However, the judgments that we make about others are frequently flawed. Human brains are wired for efficiency, for quick, but not necessarily accurate, judgments. In addition, when we first encounter new people, we usually know very little about them. When we make quick judgments based on very little information we often rely on stereotypes. These are beliefs that certain attributes are typical of members of particular groups.

Stereotypes can be positive or negative or true or false. For example, strangers sometimes assume because my daughter is Chinese that she is good at math (she is) and that she is a gifted musician (she is not). Several years ago a parent at an ice skating event commented to me that my daughter must be a good ice skater because she is Chinese. But surely 1.4 billion people (the population of China) cannot all be talented ice skaters.

The problem with stereotypes is that they ignore or discount a person’s individuality. The perceiver projects what s/he thinks about a particular group onto an individual. This tendency to stereotype is troublesome, especially in employment situations, because it may result in ineffective and unfair hiring decisions.

Consider the typical resume review situation in which HR personnel or hiring managers have a large number of applications/resumes to review in a short period of time. Quick judgments based on limited information are conditions that increase the likelihood of stereotyping, and these are common conditions under which resume screening occurs.

Below are some steps that may reduce the tendency to stereotype.

Time and Cognitive Resources. The activation of stereotypes is typically an automatic process. Taking a few extra moments to resist stereotyping may result in more accurate, fairer decisions. Set aside enough time for resume screening. In addition, work in a quiet place and avoid distractions and multi-tasking. These can drain one’s cognitive resources.

Sufficient Information. Generally, the more information that we have about a person the less likely we are to stereotype him or her. Obtain as much information as is possible and practical when making selection decisions.

Motivation. People who are motivated to resist stereotyping and to make fair employment decisions are more likely to meet this goal than those who are not. Placing an emphasis on selection decision fairness and holding employees accountable for fair decisions, may increase the motivation to be fair.

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