Archive for the ‘Compliance’ category

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

June 1, 2011

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

March 18, 2011

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

October 4, 2010

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

October 4, 2010

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

October 4, 2010

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.

US Labor Department pay equity and workplace flexibility initiatives announced as part of White House Middle Class Task Force forum

October 4, 2010

Initiatives enhance work/life balance data and wage discrimination enforcement

WASHINGTON — A House Middle Class Task Force forum hosted by Vice President Joe Biden, U.S. Secretary of Labor Hilda L. Solis July 20th, where several department initiatives designed to end wage discrimination while improving pay equity and work/life balance were announced. Among the attendees were U.S. Attorney General Eric Holder, Senior Adviser to the President Valerie Jarrett and Lily Ledbetter.

“Pay equity is a core family issue,” said Secretary Solis. “More money in a woman’s paycheck means a working family not having to choose between paying the mortgage, buying groceries, or buying necessary school supplies.”

Task force Chair Joe Biden noted that “Women make up nearly half of all workers on U.S. payrolls, and two-thirds of families with children are headed either by two working parents or by a single parent who works. Yet, the workplace has, for the most part, not changed to reflect these realities — and it must. Closing the gender pay gap, helping parents keep their jobs while balancing family responsibilities, and increasing workplace flexibility — these are not only women’s issues, they are issues of middle-class economic security.”

To implement Pres. Obama’s pledge in his State of the Union address, the administration created the National Equal Pay Enforcement Task Force, bringing together the Equal Employment Opportunity Commission (EEOC), the Dept. of Justice (DOJ), the Dept. of Labor (DOL), and the Office of Personnel Management (OPM).

The National Equal Pay Enforcement Task Force identified five persistent challenges in the area of equal pay enforcement, then made recommendations to address each challenge and developed an action plan to implement those recommendations:

  • Improve interagency coordination and enforcement efforts to maximize effectiveness of existing authorities
  • Collect data on the private workforce to better understand the scope of the pay gap and target enforcement efforts
  • Undertake a public education campaign to educate employers on their obligations and employees on their rights
  • Implement a strategy to improve the federal government’s role as a model employer
  • Work with Congress to pass the Paycheck Fairness Act.

The White House Council on Women and Girls also announced the White House’s launch of a Work-Flex Event Starter Kit to encourage more dialogue around workplace flexibility at the community level.

Through a collaborative effort among the Labor Department’s Office of Federal Contract Compliance Programs, the Department of Justice and the Equal Employment Opportunity Commission, the administration will ensure strategic enforcement of pay discrimination cases. In addition to hiring nearly 200 additional enforcement staff, OFCCP will publish an Advanced Notice of Proposed Rulemaking early next year that will seek input from stakeholders on how to improve the Equal Opportunity survey. The Labor Department’s Women’s Bureau will also launch new public education efforts including an Equal Pay Checklist, a revamped Equal Pay Employer Self-Audit tool, and an Equal Pay Research Summit.

“In addition to closing the gender pay gap, we must also increase workplace flexibility,” added Secretary Solis. “America’s families have evolved, so helping parents and other caregivers keep their jobs while balancing their responsibilities in the home is key to our long-term economic success.”

To address issues related to work/life balance, the Labor Department’s Wage and Hour Division will conduct a new Family and Medical Leave Act survey in 2011 to provide insight into how families use leave. The survey will provide a baseline data collection of current family workplace policies and practices, as well as information on regulatory changes. In addition, the Women’s Bureau intends to sponsor a supplement to the Bureau of Labor Statistics’ American Time Use Survey in 2011. The supplement will gather more information on parental leave, child care, family leave insurance program usage, and other issues related to the intersection of work and family responsibilities. The Women’s Bureau will also build on the White House’s Flexibility Forum by hosting a series of “National Dialogue on Workplace Flexibility” forums across the country.

For more information on the Middle Class Task Force, visit http://www.whitehouse.gov/strongmiddleclass/

Department of Labor reaffirms commitment to the ADA’s principles

October 4, 2010

The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection in employment, public services, public accommodations, and services operated by private entities, transportation, and telecommunications for individuals with disabilities. As stated in the act, its purpose is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”

According to Sheridan Walker, President HirePotential, Inc., a study to understand the effect of accessible technology for the general population (with or without disabilities) was conducted by Forrester Research Inc. (2003) “In the United States, 60% (101.4 million) of working-age adults who range from 18 to 64 years old are likely or very likely to benefit from the use of accessible technology.”

With the enactment of the Health Information Technology for Economic and Clinical Health (HITECH) Act as part of P.L. 111-5, the economic stimulus bill that the President signed into law on February 17, 2009, Internet accessibility issues are about to become increasingly topical. Last week the President and Department of Labor demonstrated this fact as they announced initiatives to begin a systematic focus on ADA accommodations and accessibility progress since the law went into effect twenty years ago.

An event on Friday to celebrate the 20-year anniversary of ADA provided a unique opportunity for the Department of Labor to reaffirm its commitment to the ADA’s principles of equality, access, and inclusion; and to commit itself to ensuring that the goals of a diverse workforce and good jobs for everyone includes workers with disabilities. The keynote speaker for the event was former United States Congressman Tony Coelho, an author and sponsor of the ADA and Board Chair of the American Association of People with Disabilities (AAPD), who shared his thoughts on the impact of the ADA and the importance of initiatives designed to increase the effectiveness of the Act.

Congressman Coelho’s comments are further substantiated by a recent poll conducted to learn more about the opinions of people with disabilities, their family members and individuals who work with people with disabilities, the government sought information about how well the ADA is being implemented in their communities. Overall the results indicated that the majority of the more than 3500 respondents indicated that while they saw progress over the past 20 years, barriers to community participation and employment continue.

When asked if accessibility will become a part of the OFCCP assessment as it relates to the on-line application process, Patricia Shiu, Director of OFCCP responded, “Yes – on-line accessibility is one of the OFCCP’s focus initiatives. We consider it a critical element in ensuring that all applicants and employees have equal access to employment opportunities.” Currently, all Federal Agencies must have Section-508 Compliant web sites, and that includes anyone the Federal Government uses as a supplier/vendor.

In response, Naomi Levin from OFCCP said that “OFCCP will retain and investigate individual complaints involving a contractor’s online application system.”

The focus on accessibility is given credence by the DoJ who have long affirmed that web sites can be “places of public accommodation” and the lower courts have held that inaccessible web sites can give rise to ADA violations. A consistent argument holds that it is not economically un-feasible to make web site functions accessible.

However, the ADA, enacted on July 26, 1990, prior to widespread use of the Internet, did not specifically cover the Internet and the issue of coverage has not been definitively resolved. Although the Supreme Court has not addressed this issue there are some lower court case decisions that directly discuss the ADA’s application to the Internet.  Yet those decisions vary in their conclusions about coverage.

In Martin v. MARTA, Judge Thomas W. Thrash, Jr. stated in his order that “MARTA can do a better job of making information available in accessible formats.” The judge stated that although MARTA did provide information to people with visual impairments over the telephone, this service was not equivalent to that provided over the Internet to non-disabled passengers. Although MARTA is attempting to correct accessibility issues on its Internet site, Judge Thrash found that “MARTA must deliver on its promises”. “Until these deficiencies are corrected,” the judge stated, “MARTA is violating the ADA.” 

To attend to the shortcomings of compliance efforts, a directive for Evaluation of Online Application Systems was issued requiring online application systems to be accessible to persons with disabilities last month.  Although there is no current guidance from OFCCP, it is clear that they may ultimately require extensive redesign of websites to increase accessibility. The obvious take away is that OFCCP scrutiny can, and very likely will, lead to an increase in ADA suits for web accessibility.

OFCCP intends to publish new regulations late in 2010 for Veterans and Persons with Disabilities The Proposal is likely to strengthen requirements in AAP(s) for veterans and persons with disabilities and may include placement goals for veterans and persons with disabilities (even though no data on these groups exists!)

According to Walker, “it is clear what the courts are saying, if your company does business over the web, you need to consider if your website or web based applications give a person with disabilities the same access to information as a person  without disabilities?” She further states that “just as you provide ramp access to a building, you would provide a ramp access to your on-line site.”

Walker emphasizes that there is an upside for businesses working to increase accessibility of their on-line applications.  As a result of a technical review and upgrade, businesses also increase the on-line search and document management capability of their sites, as well as to ensure consistent branding capacity and meta-data quality.

To accomplish a system review, it is important that key transactional paths are tested and all functional pages sampled to ensure full documentation towards a plan to resolve, and implement solutions for accessibility issues.

Doing a review allows a baseline document to demonstrate “good faith efforts at compliance” with accessibility requirements, and also helps to achieve a more technical and user friendly environment with a software lifecycle enhancement through:

  • The ability to map to Internal Content Standards
  • Accessibility testing built into the QA & Development Cycle
  • Integration of accessibility into Content Management System work-flow processes

One thing is for sure, to not document, results in conciliation agreements issued by OFCCP and no longer will a more generalized outreach be sufficient.

You can connect with HirePotential by contacting Kelly Egan, Vice President Business Development or by visiting their website www.hirepotential.com, The Leader in Integrating the Untapped Workforce