The refocused and recharged lean and mean OFCCP: what it means for contractors in practical terms.

Posted June 1, 2011 by hamptoncm
Categories: Business Strategy, Compliance, Engagement, Legal Trends

Tags: , , , , ,

You have heard the old adages, “Put your money where your mouth is” and “Walk the talk.” With the release of its 2011 Budget, OFCCP is poised and ready to do both. The evidence shows that the agency intends to keep its promise of moving from a compliance-based agency to one focused primarily on enforcement of the laws and regulations that mandate Affirmative Action.

To highlight this fact, the Obama Administration has been aggressively expanding federal contractors’ affirmative action obligations, including:
• Signing into law the American Recovery and Reinvestment Act of 2009, which had the effect of greatly increasing the number of federal contractors, rendering many unsuspecting companies subject to affirmative action requirements.
• Issuing two Executive Orders imposing additional burdens on federal contractors, including the requirement that covered contractors post the “anti-Beck” notice advising employees of their rights under federal labor laws.
• Publishing interim regulations that require covered federal contractors and first-tier subcontractors to publish information about their executives’ compensation.
• Announcing its intention to rescind its guidelines to contractors on analyzing compensation and issuing a new directive on the way that it will conduct compliance reviews.
• Issuing a directive outlining its new expanded approach toward jurisdiction over health care providers.
• OFCCP seeks to further strengthen federal contractor’s affirmative action obligations towards Veterans by proposing to amend its regulations regarding a contractor’s and subcontractor’s affirmative action and nondiscrimination obligations towards protected veterans.
• Finally, OFCCP recently published a notice of its intent to change its Scheduling Letter, used in connection with its compliance evaluations. With these changes, OFCCP intends to broaden the type and nature of data it seeks in an evaluation, imposing significant new burdens on the contractor community.

When thinking about what this means for the federal contractor and subcontractors, another adage comes to mind: “Rise to the challenge.” Simply put, contractors need to understand that a shift in the meaning of the phrase “being in compliance” has occurred.

Maintaining and continuing to develop annual AAPs will remain an important first step. But, in and of itself, the AAP will not go the distance in this enforcement environment. OFCCP is looking at all the systems, policies and procedures that support equal employment opportunity, and they are looking for proof that contractors are “walking the talk” and “talking the walk.”

For example, most AAPs indicate various levels of support for the AAP within the contractor’s workplace, including ongoing communication. When on site, OFCCP will interview stakeholders to gauge what they think the firm’s true level of commitment to EEO/Affirmative Action policies and procedures is. Stakeholders will include supervisors, employees, and even applicants who were not selected for hire (if the data streams warrant it) as well as recently terminated employees.

In essence, federal contractors and subcontractors will need to commit themselves to a long-term compliance strategy, one that focuses on true implementation and communication strategies, not just AA plan development.

The rather obvious question then, is what contractors can do now to ready themselves for the implementation of these changes. In general, it starts with the content of the Affirmative Action Plan and the employer’s accountability under those requirements.
• It’s time to review for accountability, many construction contractors and health care providers were quite surprised to find they were now contractors, know for sure if you are.
• Review AAP in detail, become familiar with problem areas and strengths and be prepared to address decisions both narratively and quantitatively.
• Look very closely at all admissions of problems, especially those involving adverse impact; not only should you be able to address, but you must be able to demonstrate your effort to resolve issues systematically.
• If affirmative action efforts were not successful, be prepared to explain before asked.

To be prepared, proactive is best. What this means is that contractors should take this opportunity to review their policies, as well as their affirmative action plans and procedures, to ensure they comply with legal requirements. What we do know is that OFCCP is going to be seeking information that codifies corporate practice in a more substantial way. So, it is also going to be important to evaluate employment practices against affirmative action plan data and actions at least once partway through the plan year, so that any deficiencies can be identified and corrected at the earliest possible opportunity.

From a policy perspective, it’s a good idea to review the content of each policy, the procedures established for administering the policy as well as how it is communicated. This is very important since OFCCP will also be requiring the entire handbook as part of their data requests moving forward. OFCCP believes that by reviewing this information will allow them to better enforce the prohibitions on sex and religious discrimination (and, presumably, the requirement to accommodate disabilities). So check now to ensure consistency between what you say, what you actually do and what is communicated across the organization.

It’s also important that a diligent effort be made to capture and manage employment data during the full life-cycle of employment in a systematic manner. The content of the proposed scheduling letter is a good place to start when deciding what to capture and manage.

We do know that how an organization comes about making employment and pay decisions are going to be vital to your success in an audit. All contractors would be required to submit data by employee level compensation for all employees (including but not limited to full-time, part-time, contract, per diem or day labor, temporary) as of the most recent February 1st date. This one requirement changes the typical snapshot we normally use for AAP compilation and requires that we have a system in place that can accurately collect and analyze that data in a more consistent and thorough process.

In the proposed scheduling letter, contractors are going to be required to provide more demographic information for applicants, hires, promotions and terminations. Specifically, OFCCP wants data for the entire pool of candidates by certain sub-minority groups, by job group as well as job title.

OFCCP believes this change will provide more accurate data to allow it to identify discrimination indicators. This highlights the need to ensure that ALL employee decisions are well documented in a concise and objective manner. So a review of data collection practices as well as the documentation regarding decisions affecting employment actions is necessary to ensure information is collected in a clear and concise manner that supports decisions in a quantifiable manner.

Therefore, we must codify all compensation information including base salary, wage rate and hours worked. Other compensation or adjustments to salaries such as bonuses, incentives, commissions, merit increases, locality pay or overtime should also be identified separately for each employee.
It is also important to be prepared to do the following at the investigator’s request:
• Describe application process, not just in detail, but quantitatively.
• Describe your application recordkeeping system.
• Describe retrieval system for applicants to be reconsidered if no job can be offered at the time of application.
• Provide copies of written job descriptions for all positions.
• Discuss and provide evidence of job description review system.
• Describe the selection process, including the identification of all recruiting sources.
• Identify methods used for external job recruitment and describe how they are evaluated.
• Provide explanation for failure to attract representative numbers of applicants, if applicable. Be sure you are able to quantify your assumptions at the very least.
• Confirm listing with applicable state agency or agencies.

All applicants should be reviewed according to Affirmative Action guidelines. Information that needs to be included for applicants are: Number of persons applied; how many of those met the minimum qualifications? What is the breakdown by race and gender who met the minimum qualifications? Who are the top three candidates by name, education or employment, gender and race?

According to the agency, “perhaps the most significant substantive changes in the proposed veteran rules address the scope of the contractor’s recruitment efforts and the dissemination of its affirmative action policies.”

For example, the current Veterans proposal would require a contractor to engage in a minimum number of outreach and recruitment efforts, and quantify the success of such outreach efforts. As a part of this effort at quantifying good faith efforts, the contractor would be required to enter into linkage agreements and establish ongoing relationships with the Local Veterans’ Employment Representative in the local employment service office nearest the contractor’s establishment and at least one of several other listed organizations and agencies for purposes of recruitment and developing training opportunities.

In addition, the contractor would be required to consult the Employer Resources section of the National Resource Directory, an online database. The proposed rule would require the contractor, on an annual basis, to review the outreach and recruitment efforts it has undertaken over the previous twelve months and evaluate their effectiveness in identifying and recruiting qualified protected veterans, and document its review.

Something quite simple to review would be the EEO content used in job postings. You want to be sure it includes an enhanced EEO statement such as “We are an equal opportunity/affirmative action employer. Applications from women, minority persons, handicapped persons and special disabled or Vietnam era veterans are especially welcome.”

Review the avenues employees have for lodging a concern or complain. Any employee, who believes that he or she has been the victim of discrimination, should have the ability to report this problem to management within 24 hours of the alleged event.

Did you know that to not do an effective and efficient investigation is a violation of OSHA. So make sure that there is a verifiable mechanism in place to investigate all complaints in a timely and confidential manner. When the investigation discloses a violation of this policy, you also need to be able to verify and validate that appropriate disciplinary action was taken.

Of utmost importance would be to ensure that supervisors are properly informed about key employment-related laws, how they apply to the workplace, and their specific responsibilities for communicating and implementing the associated workplace practices. It is advisable that a comprehensive “how to” manual be developed that is coordinated with the organization’s employee handbook.

Another key area of consideration for review is the documentation habits employed by your managers and supervisors. OFCCP is also seeking to review documentation and policies related to compensation practices of the contractor particularly those that explain the factors and reasoning used to determine compensation. This means that pay decisions based on performance and merit reviews will play a key part in how OFCCP determines a potential for discriminatory activity. So make sure your process for performance and merit reviews are sound and that the justification for the decisions is written in an objective manner.

But don’t just stop at what one manager says or does. You will want to review current performance management practices and ensure that all information and other employment activities are thoroughly documented in an objective manner so that resulting decisions can be easily validated as consistent across the entire organization.

This will require that managers and supervisors be fully trained on how to do an effective performance appraisal using a rating scale that makes sense so that such determinations can be quantified. Begin by questioning when and how often do you review the content of those decisions and how often you compare that data across the organization for consistency.

While much discussed results from proposed regulations at this point, the changes do represent the focus of enforcement vs. compliance and federal contractors should be familiar with their requirements. Even if the proposed regulations are modified in the future, they demonstrate the OFCCP’s efforts to address both working conditions and unemployment rates in a more meaningful way than the current regulations provide. One thing is for sure, we will likely see many of the proposed concepts implemented during the audit process, even before the OFCCP issues final regulations.

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US Labor Department launches website for public feedback on regulations

Posted March 18, 2011 by hamptoncm
Categories: Uncategorized

On January 18, 2011, President Obama issued Executive Order 13563, “Improving Regulation and Regulatory Review” and two related Memoranda on Regulatory Compliance and Regulatory Flexibility, Small Business and Job Creation.

Executive Order 13563 reaffirms the principles of Executive Order 12866 and aims to create a regulatory process that “strikes the right balance” between what is needed to protect health, welfare, safety, and the environment for all Americans, and what we need to foster economic growth, job creation, and competitiveness.  Executive Order 13563 provides several guiding principles for achieving that balance and urges that regulations:

  • take into account costs and benefits to society;
  • are developed in a manner that allows public participation;
  • are coordinated among agencies and simplified;
  • use the least burdensome methods to achieve regulatory goals; and
  • are based on the best available science.

The Executive Order also requires agencies to develop protocols for periodic review of significant regulations to determine whether they are outmoded, ineffective, insufficient, or excessively burdensome.  To ensure that the Department develops protocols that meet the objectives of the Executive Order, we invite you to participate in the discussion. Information obtained in response to this notice is not determinative of outcome because these questions are a vehicle for facilitating public dialogue rather than reaching consensus.

In compliance with this order, the U.S. Department of Labor today announced the availability of a new online tool to collect public feedback on ways to improve regulations and the department’s regulatory review process.

The online tool is part of the department’s compliance with Executive Order 13563, which calls for federal agencies to detail how they will review existing significant regulations to identify whether regulations may be made more effective or less burdensome.

Members of the public who wish to provide comments or suggestions to improve Department of Labor regulations by modifying, streamlining, expanding or repealing them are encouraged to visit http://www.dol.gov/regulations/regreview.htm.

In addressing these questions or others, the Department requests that participants identify with the regulation or reporting requirement at issue and provide legal citation(s) where available. 

The Department also requests that submitters provide, in as much detail as possible, an explanation of why a regulation or reporting requirement should be modified, streamlined, expanded, or repealed, as well as specific suggestions of ways the Department can better achieve Comments must be received no later than March 31.

its regulatory objectives. Whenever possible, please provide empirical evidence and data to support your response.

To add your comments and see what others are saying, visit http://dolregs.ideascale.com

Change is in the hands of the employers who actively hire and retain

Posted March 18, 2011 by hamptoncm
Categories: Business Strategy, Compliance, Engagement, Legal Trends

On February 16 of this year, the EEOC held a hearing to discuss the growing number of reports that some U.S. employers were posting job notices with job specifications that included “must be currently employed.”

It is difficult to understand why an employer would only want to hire from the currently employed.  The only thought that comes to mind is that some employers may feel that the unemployed are not qualified for the job or are poor performers, an idea suggested also in the EEOC hearings.

Is it illegal to exclude the unemployed from applying for jobs? In the strictest sense no it is not illegal to exclude the unemployed. Being unemployed is not a protected class under Title VII of the Civil Rights Act, so employers can require this if they choose (just like they can exclude smokers, overweight people, etc.). However, it is also true that a disproportionate number of unemployed are black, Hispanic, disabled, or older workers, etc.  Asians are also among the highly unemployed.

Therefore, if you exclude the unemployed from your applicant pool, you run the risk of escalating disparate treatment claims (when an employer treats some people less favorably than others because of race, religion, color, sex, national origin, or age) and possibly adverse impact claims (when women and minorities are not hired at the rate of at least 80 percent of the best achieving group). So, while it is not technically illegal, excluding the unemployed may indirectly open you up to disparate treatment and adverse impact claims, creating a legal headache that you probably don’t want to deal with. 

However, in addition to the legal implications of such a policy, there is a practical implication to the issue. Simply put, employers may also be overlooking very qualified individuals. Assuming that the end goal of the recruiting and selection process is to hire the employee that has the potential for the best performance in the job and the greatest commitment to the company, it seems foolish to limit the pool before actually reviewing candidate qualifications. 

Considering that a good number of high performers are currently in the unemployed ranks, not because of poor performance, but because of circumstances outside of their control like companies that have shut their doors, had major lay-offs, or simply due to the uncertainty of the economy, for example. It is safe to say then, that to not consider the unemployed shows a lack of foresight.

And, for employers who think they are able to work with the select few they did not lay off, what about those that remain employed? There are equally growing reports that show roughly one third, or about 77.5 million employees, are currently looking for or are open to new opportunities.  Simply put, that means that those employees, about one third of your workforce, are disenfranchised and unhappy about their current work environment.   

We all know how that in a tough economy, many employees feel forced to stay in jobs that they might have already bailed out on in the past.  Equally true, is that when economic times are hard, employers tend to rely on fiscal techniques to mitigate the lack of revenue such as a cut or freeze in salaries, furloughs, trimmed benefits, and wholesale layoffs. Generally though, employees who survive the fiscal hammer wielded by their employer are pushed to do a lot more with a whole lot less and the longer it lasts, the greater their penchant for employment change.

As an employer, you are trying everything possible to retain existing employees, but, if necessary, replacing those that leave. So, employers who are ‘waiting for the right candidate’ who is already working, stand a good chance of acquiring a disenfranchised or already unhappy individual and are quite possibly looking past a great candidate that can be in position should another employee leave.

For employers to survive, it is important to understand what employment strategies need to be changed, both from a recruitment and retention perspective as well as from a motivational perspective.

It is well known that employees do not leave organizations; they leave managers and work groups.  It is equally important to remember that those that are in the ranks of the unemployed may be there due to forces beyond their control and could, quite possibly, help to increase motivation in the organization.  A company that is growing, hires, and a company that hires motivated and excited employees is seen as strong despite the economy.

It is important to review traditional human resource efforts, from those that limit the employment pool to those that limit employee engagement.  Such patterns to exclude fail largely because they are limited by outmoded bias, resources and money … and they are also based on past conditions that allowed for exclusion to become the norm.  One thing is for sure, organizational actions are watched, noted, and acted upon.

A Review of the US Supreme Court Seen as Split when it comes to Employer/Employee Lawsuits

Posted October 4, 2010 by hamptoncm
Categories: Compliance, Legal Trends

Tags: , , ,

July 27, 2010

As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court. Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice.

While his majority percentage may suggest to some willingness to compromise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term. Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.

This view, however, does not accurately characterize the Court’s labor and employment decisions, which demonstrate a far more even split between employer and employee interests. The nine employment-related decisions issued by the Court this term included:

  • Two ERISA cases (Conkright, Hardt);
  • Two attorneys’ fees cases (Perdue, Hardt);
  • Three arbitration cases (Stolt-Nielsen, Rent-a-Center West, Granite Rock); and
  • Important proclamations regarding: authority of the two member National Labor Relations Board (New Process Steel), timeliness of discrimination charges (Lewis), and privacy rights (Quon).

These decisions demonstrated that the Court’s conservative justices continue to play a dominant role, a trend that will likely continue at least through the next term with the pending retirement of Justice Stevens. Of these nine decisions, five were decided 5-4 or 5-3, with the conservative block constituting the majority in all but one.

The remaining four decisions were generally unanimous, with the exception of a partial dissent in Granite Rock. Of the nine decisions, five are viewed as generally favorable to employers; of the remaining four, viewed as favorable to employees, three were essentially unanimous, including the Granite Rock ruling against the viability of a new federal cause of action for tortious interference under § 301(a) of the Labor Management and Relations Act.

One landmark unanimous decision, Lewis v. City of Chicago, Case No. 08-976 (May 24, 2010), held that a plaintiff who does not file a timely charge challenging employment practice may nevertheless assert a disparate impact claim. The opinion marks a notable departure from Scalia’s concurrence in Ricci v. DeStefano, 129 S. Ct. 2658, 2682 (2009) during the Court’s 2008-2009 term.

At that time, Justice Scalia flirted with the notion that disparate impact claims were inherently in conflict with the “disparate treatment” prohibition of Title VII and the Equal Protection guarantees of the United States Constitution which prohibit intentional race-based decision making. He noted that Title VII’s disparate impact provisions often require “employers to evaluate the racial outcomes of their policies, and to make decisions (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory.” Id. at 2682.

Scalia’s unanimous opinion in Lewis makes no mention of his prior comments in Ricci and expresses no misgivings about the viability of disparate impact claims generally, where there is no issue or claim pending that an employer’s attempt to remedy or protect against a disparate impact has resulted in potentially discriminatory race-based decision.

Retaliation Claims Take Number One Spot in EEOC Complaints

Posted October 4, 2010 by hamptoncm
Categories: Business Strategy, Compliance

Tags: , , ,

July 27, 2010

Employers beware, the need for credible complaint procedures underscored as current trends show a marked increase in complaints related to retaliation in filings with the Equal Employment Opportunity Commission (EEOC) has raised exponentially and workplace audits have ramped up to levels we’ve not seen in years.

According to EEOC data, retaliation charges more than tripled between 1992 and 2009 and now comprise 36% (93,277) of the total charges filed, making it the number one complaint filed with the EEOC.  The EEOC is the federal agency responsible for enforcing employment discrimination laws including Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). 

The reason for the rise in retaliation claims is simple – they are easier to prove and the damage awards are often higher than claims of discrimination.  Retaliation claims typically assert that an employer took some adverse action against an employee because the employee exercised a legal right, such as filing a discrimination claim.  Courts often rule in favor of employees in the retaliation part of their lawsuits, even when the underlying discrimination claim is dismissed. 

Generally, unlawful retaliation occurs when an employer treats an employee differently for exercising rights under one or more of the various state or federal statutes. To prove unlawful retaliation an employee is required to establish that (1) the employee engaged in a protected activity, (2) the employer took some adverse employment action against the employee, and (3) a casual connection existed between the protected activity and the adverse employment action.  

To establish that an employee engaged in a protected activity, an employee must show that he or she (a) participated in an activity protected by law (Such as, filed a charge of discrimination, testified in support of another employee, or participated in an investigation.) or (b) opposed an unlawful employment practice.

A common example of retaliation is when an employee bypasses the company, and files an EEOC claim that accuses the supervisor of being a discriminatory behavior.  The law requires that the company treat the subordinate employee as if nothing happened, and as if the accusation was never lodged.  Obviously, a supervisor who feels unfairly accused will want to strike back at the employee that made the accusation. “Striking back” constitutes retaliation. 

The criteria for making retaliation claims follow a relatively low standard as established by the Supreme Court in the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White.  The Supreme Court held that an “adverse action” is any action by an employer that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court noted that, unlike discrimination which focuses on characteristics of a group, retaliation claims focus on the conduct of the individual.  The Court’s expansive view of what constitutes an “adverse action” allows employees to claim that almost any action taken by an employer is retaliatory, if that action deters a reasonable employee from coming forward with a complaint. 

Proactive and preventative measures taken by the employer limits even the illusion of systemic retaliatory actions.  Through meaningful and consistent management practices, the following guidelines serve to protect employers and provide a meaningful solutions-oriented workplace when issues arise:

  1. Prepare and disseminate to every employee a written internal procedure for filing a complaint.  If the current anti-discrimination policies do not address retaliation, then amend to include a non-retaliation statement that encourages employees to come forward with complaints of unlawful conduct without fear of reprisal.
  2. Train Supervisors on what constitutes retaliation and how to avoid treating employees differently.  Managers, team leaders, supervisors, etc., must be regularly trained and should understand that negative reaction to a complaint will only make the problem worse and may lead to a retaliation claim. 
  3. Conduct a thorough and unbiased investigation of every claim.  Employees should not be ignored or ostracized and the absence of an investigation has been found to be a form of retaliation.  Therefore the employer should explain the policy against retaliation and procedures for resolving a complaint to include continued assistance if the employee experiences additional problems.  All discussions with the employee should be documented — one meeting may not be enough.  It is a good practice for employers to follow up with the employee and ask whether there have been any further problems after an employee comes forward.
  4. Properly Document Complaints.  Regardless of where or how the complaint was received, it is vital that the employer document when the complaint occurred and when the supervisor became aware of the complaint, who was involved, and what the complaint entails (for example, when documenting the conversation get direct quotes from the employee if possible.)  It should be the employer’s general practice to thoroughly document all employee performance issues.  This practice also allows the employer to demonstrate that any subsequent performance problems are justified and not as a result of alleged retaliation.

Accommodating an employee that has made a complaint can sometimes be difficult, especially when that employee is believed to be a “problem employee” or the employee’s claim has no merit.  Many management teams are made up of top technical talent; however, most are not properly developed to manage people. Such a serious gap poses risk as evidenced by the marked increase in workplace audits relating to employee management. By consistently following written procedures and policies, training management teams, and by exercising caution and restraint, employers can effectively reduce the risks associated with the rise of retaliation claims.

President Issues Executive Order to Increase Federal Employment of Individuals with Disabilities

Posted October 4, 2010 by hamptoncm
Categories: Compliance

Tags: , , ,

July 27, 2010

Despite a strong economy, the passage of landmark legislation, the Americans With Disabilities Act (ADA), government tax incentives, and a record low unemployment in the 1990s, the employment rate of individuals with disabilities actually decreased. Now, with unemployment looking to be a continuing issue for the American worker, individuals with disabilities may find it even more difficult to obtain employment.

According to the U.S. Census Bureau, about 54 million Americans—or approximately one out of five—have some kind of disability and 26 million of those individuals—or approximately one out of 10—have a severe disability. In the prime employable years of 21 to 64, 82% of Americans without a disability have a job or business compared with 77% of those with a non-severe disability and 26% of those with a severe disability.

To address the issue, July 26, 2010, President Obama addressed a ceremony honoring the 20th anniversary of the Americans With Disabilities Act, calling it “one of the most comprehensive civil rights bills in the history of this country.”

“Not dependence, but independence,” Obama said. He then signed an Executive Order intended to establish the Federal Government as a model employer of individuals with disabilities. The order directs several federal agencies to design model recruitment and hiring strategies for agencies seeking to increase their employment of people with disabilities, as well as mandatory training programs for both human resources personnel and hiring managers on the employment of individuals with disabilities.

The White House described the new order as a means of fulfilling a “… pledge by the President to have the federal government be a model employer of people with disabilities.  … and establishes mechanisms such as mandatory training for hiring managers, requires preparing of strategic plans by agencies to be approved by OPM and OMB, requires OPM to develop model guidelines and assistance for hiring people with disabilities, reporting to the President about progress, and publicizing results on a website as a way to promote transparency.”

The Fair Labor Standards Act (FLSA), which establishes the federal minimum wage and overtime pay requirements, contains a provision allowing for the employment of individuals with disabilities at special minimum wages (SMW).

A SMW is a commensurate wage paid a worker with a disability that is commensurate with that worker’s individual productivity as compared to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the vicinity where the worker with a disability is employed. Payment at SMWs is only permitted under certificates issued by the Wage and Hour Division (WHD) of the DOLs Employment Standards Administration.

Title I of the Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees, including state and local governments, employment agencies, and labor organizations from discriminating in employment against qualified individuals with disabilities.

Title II of the ADA prohibits state and local governments from discriminating against qualified individuals with disabilities in programs, activities, and services. As a matter of practice, each agency requires federal contractors to comply with these provisions in all qualified contracts.

ADA is primarily enforced by the Equal Employment Opportunity Commission (EEOC), an independent federal agency.

Good News! Managing Innovation as a core business strategy has bottom-line benefits

Posted October 4, 2010 by hamptoncm
Categories: Business Strategy

Tags: , ,

U.S. Commerce Secretary Gary Locke said “America’s innovation engine is not as efficient or as effective as it needs to be, and we are not creating as many jobs as we should. We must get better at connecting the great ideas to the great company builders.”

Throughout U.S. history, basic research in public and private sector research labs has spawned new technologies and inventions that led to new businesses. Those entrepreneurial businesses have been important drivers of the economy and ultimate job creation. Firms less than five years old have accounted for nearly all net new jobs in America over the last 30 years. Yet, as a share of gross domestic product, American federal investment in the physical sciences and engineering research has dropped by half since 1970.

While federal investment may be important to the long-term capability of improving the economy, a key point highlighted here is that entrepreneurial impetus is a direct result of innovative thought, and a solid strategy for both short and long-term viability. 

According to Bill Ezell of Client Success Group, Inc., impetus is developed at the early stage of corporate development. “It’s more than about new products or services; it is about creating business processes to enable a company to enter new markets.” He continued the thought by saying that his role is about helping companies focus on the business processes that surround a product or service rather than the product itself. This enables risk to be assessed, strengths identified, and alignment developed in concert with market uncertainties. “Certainly innovation is about more than the product itself; it is about the ability to enable entry into new and emerging markets as opportunities arise. “

The dilemma lies in the strategy. “The creation of jobs should not be the focus; rather it should be about the strategy of innovation.”  For economic viability, stated Ezell, “it is important to develop a broader strategy to spur innovation and enable breakthrough technologies and dynamic companies to develop and grow.” Ezell continued by saying that “the value lies in the development of a culture that embraces and understands uncertainty, takes a serious look at innovation as a strategic focus, and develops a product or service for a profit for which jobs become the net outcome.”

The vehicle of innovation lies in the organization through surrounding human capital principles. “We must understand how human capital is managed and developed and what can be done to increase the focus” says Julie Lenzer Kirk at the Path Forward Center for Innovation and Entrepreneurship in Damascus, Maryland.  “Innovation is the most important impetus to creating opportunity and jobs.”  Kirk maintains that “by definition, innovative strategy creates value and is done best when embedded in the culture.”

Hiring the right people and developing strong cross-functional teams are vital to success. The best innovators have removed “can’t” from their language and consistently and constantly seek ways to bend the traditional knowledge curve.  Although, as Kirk stated, “Flexibility is a key indicator of success; conflict is good for innovative and productive outcomes.”  She continued by saying that “It’s an art not a science” and that innovative thought requires focus and balance to prevent tangent ideas from taking over rational business thinking.

“You have to keep going back to the process” says Kirk.  “Getting sparked” begins with idea generation and is kept in check by consistently reviewing ideas against the goals and objectives of the organization.  The process of “getting real” requires metrics that identify key indicators of success at milestone touch points. This allows for opportunity to be consistently rechecked and aligned with business objectives so that all good ideas are given credence and consideration at the right moment.

Practically thinking, “people need time to think, innovation comes from within and is enabled best when groups are allowed to share and develop ideas” according to Kerri Morehart of Pragmatics in McLean, VA. The objective for Pragmatics is to create an environment where innovation can happen. 

The challenge is in enabling continuous opportunities for idea generation through systematic communication coupled with the removal of the fear many associate with leading-edge thought.  “The value of face to face communication will never be replaced with technology.” In fact, at Pragmatics, employees are encouraged not to hide behind technology and to allow for the integration of solid ‘old school’ principles of face to face communication with ‘new school’ technologies.  By doing so, employees are encouraged and excited about possibilities. When they are, idea generation is increased and the bottom-line is that it becomes a win-win for both the company and the employee.

Morehart added that risk is not a blank piece of paper and without the ability to remain flexible and liquid, the ‘real meat’ of an idea that considers all possibilities is often missed.  Employees are encouraged to constantly think about and develop ideas.  CEO, Dr. Long Nguyen makes innovation very personal and helps employees to keep focus by allowing for and encouraging one-on-one meetings that are focused and real for each employee individually.

By “sticking to the knitting” and developing employee management programs that provide an environment of innovative thinking is proven to be a positive enhancement to the bottom-line. Pragmatics has experienced a 30% growth year over year despite the economy and forecasts the pace of growth to continue.  “Let’s face it, employees love their work and our clients love our outcome” says Morehart.

That simple fact was easily proven through Sean Cohan, Head of Agile Development at Pragmatics. He enthusiastically discussed how innovation enabled agile development to take root at Pragmatics. His passion and excitement for agile was evident in the discussion and his clients are definitely pleased with the outcome. Largely due to his passion for innovative technology and the flexibility of his company to allow development of his ideas, clients of Pragmatics have reaped the benefits of solutions using agile.

Agile development refers to a methodologies based on iterative development, where requirements and solutions evolve through collaboration between self-organizing cross-functional teams. Through Pragmatics, clients were provided the opportunity to embrace agile practices.  With each success, the practice was enlarged through increased funding and space so that enhanced technologies could be developed.  Each stage of development along with the success realized with the end-client has proven to consistently increase customer support for agile development.

According to Cohan, “the impetus for development began internally with the need to support web development for a client.  With a need, came ideas, from the ideas, came solutions.” As a result of the success, a whole new business wheel was born and “we were able to expand our reach by launching agile related services with other clients”

According to Morehart, the framework for innovative thinking is embedded in the culture and begins before the employee comes to Pragmatics.  This allows for innovative thought to be fully leveraged in the hiring strategies that consistently source and retain critical thinkers.  This is certainly good news for Leslie Sorg Ramsay of the McCormick Group in Arlington, VA.  According to Sorg Ramsay, “bottom line, we want our clients to do better and retaining the right Human Capital is the answer. In the Human Capital world, we understand how people create success, and the company that embraces innovation is the key factor that enables personal success.  It’s a win-win for all concerned.”  She quoted the head of Pixar’s Training and Development as saying “people are more important than strategy, people create strategy.”

According to Sorg Ramsay, when working with hiring managers,” it’s necessary to fully understand what the company is doing, wants to do, and how they plan to develop their business model.”  By doing so, she is better able to focus her search on the “right fit” and to provide candidates who not only meet short-term needs, but who are also aligned with the long-term goals of the organization.

“It’s a fallacy to think that the talented most innovative people are looking for jobs, they focus on the long-term and want careers” says Sorg Ramsay. “So by working with the Leaders of an organization, we work to bring the best career minded folks to the most innovatively enabled environment.”  To do so “it is important to calibrate requirements with one or two hiring considerations.  This allows us to help streamline the process and ultimately provide only those candidates worth considering for hire.” It’s about partnership and, says Sorg Ramsay, “our ability to enter into a substantive discussion with our clients enables us to develop that vital partnership.”  

The economy is at risk, job growth is anemic at best. Yet, innovation is proof that organizations are dealing with today’s environment without losing focus on their long-term strategy.  As quoted from Dr. Long Nguyen of Pragmatics, “my objective in establishing Pragmatics was to build an organization highly skilled at developing technology-oriented solutions for information management requirements. “  He chose not to develop an organization that could do everything, but to focus on the quality of the service provided. At 30% growth, strategic innovation that is aligned with organizational goals and its processes is a key indicator of success.

For questions and comments, please feel free to contact the contributors to this article:

Bill Ezell, CEO and Founder of Client Success Group, Inc., a management consulting group focused on market and business development and revenue acceleration strategies. Headquartered in San Francisco with offices worldwide, Bill can be reached at (408) 531-1907, bezel@clientsuccessgoup.com, www.clientsuccessgroup.com

Julie Lenzer Kirk, CEO and Chief Muse at Path Forward Center for Innovation and Entrepreneurship, a nonprofit that helps women expand economic opportunity by starting and building growth-oriented businesses.  Located in Damascus Maryland, Julie can be reached at (301) 916-5126, julie.kirk@pathforwardcenter.org, or visit their website at: www.pathforwardcenter.org

Leslie Sorg Ramsay, Principal at The McCormick Group, One of the top 25 search firms in the country and the largest independent executive search and consulting firm based in the Washington, DC, metropolitan area. Leslie can be reached at (703) 841-1700 lramsay@tmg-dc.com, or visit their website at: www.mccormickgroup.com

Pragmatics, solving mission-critical government technology challenges by incorporating technical expertise, process improvement, and innovation to deliver quality solutions that give customers what they need – real results.

–   Kerri Ross Morehart, Vice President, Human Resources at Pragmatics, (703) 761-4033, morehartk@pragmatics.com,

–   Sean Cohan, Agile Development, Pragmatics, (703) 761-4033, choans@pragmatics.com,

–   Or visit their website at: www.pragmatics.com