EEO-1 Form Reporting for 2012 [Read-Only] · EEO-1 Form: Reporting for 2012 Presented By: Eric J....

EEO-1 Form:Reporting for 2012

Presented By:Eric J. Felsberg

Jackson Lewis LLP

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EEO-1 Form:Reporting for 2012

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mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-833-3953email: [email protected] • website: www.lorman.com • seminar id: 390173

Prepared By:Eric J. Felsberg

Jackson Lewis LLP

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EEO-1 FORM: REPORTING FOR 2012

Presented by

Eric Felsberg, [email protected]

Jackson Lewis LLPwww.jacksonlewis.com

www.jacksonlewis.com

Sponsored by:

Lorman Educational Services

1

© 2012 Jackson Lewis LLP

INTRODUCTORY STATEMENT

THE MATERIALS CONTAINED IN THIS PRESENTATION WERE

PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR

THE PARTICIPANTS’ OWN REFERENCE IN CONNECTION WITH

EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS

LLP. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE

TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE

MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR

OTHER ADVICE.

2


ABOUT JACKSON LEWIS LLP

Jackson Lewis LLP is dedicated to representing

management exclusively in workplace law and related

litigation. With nearly 50 offices and more than 700

attorneys nationwide, the firm has a national perspective

and sensitivity to the nuances of regional business

environments.

Guided by the principle that a positive work environment

results in enhanced morale and increased productivity, the

firm devotes a significant portion of its practice to

management education and preventive programs. This

approach helps limit exposure to grievances, charges and

lawsuits.

3

3


ABOUT THE AFFIRMATIVE PRACTICE GROUP

We have unparalleled experience preparing AAPs and

defending them before the OFCCP in all industries and

areas of the country. Our diverse team of 35 attorneys,

analysts, statisticians, and support staff prepares

approximately 2,500 AAPs a year.

Since 2009, we have defended over 250 OFCCP audits,

including successful defense of Corporate Management

(“Glass Ceiling”) Compliance Evaluations. As a law firm, we

offer more than consulting services, we offer strategic

thinking and sophisticated legal representation.

4


ABOUT ERIC FELSBERG, ESQ.

5

Eric J. Felsberg is a Partner in the Affirmative Action Practice Group of

Jackson Lewis LLP. He provides training and counsel to employers in

various industries on day-to-day employment issues and all aspects of

federal, state and local affirmative action compliance. Mr. Felsberg is

a practice resource on the Office of Federal Contract Compliance

Programs’ (OFCCP) Internet Applicant Rule. He has in-depth

experience in the analysis of AAP structures, EEO-1 classifications, job

group structures, availability and utilization analyses, etc.

Furthermore, Mr. Felsberg works closely with firm clients to prepare

AAPs for submission to the OFCCP. He routinely analyzes and

investigates adverse impact trends and compensation disparities as

part of the AAP preparation process. Mr. Felsberg has successfully

defended numerous OFCCP compliance reviews, including a glass

ceiling review of a major national corporation. He also represents

employers in failure to hire cases before the OFCCP.

4


AGENDA

Eeo-1 Form: Reporting for 2012

__________

OFCCP Audits: What You Need to

Know

6


EEO-1 Form: Reporting for 2012

7

5


Ethnicity and Race Categories

• Hispanic or Latino - A person of Cuban, Mexican, Puerto Rican, Southor Central American, or other Spanish culture or origin, regardless ofrace

• White (Not Hispanic or Latino) – A person having origins in any of theoriginal peoples of Europe, the Middle East, or North Africa

• Black or African-American (Not Hispanic or Latino) - A person havingorigins in any of the black racial groups of Africa

• Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) - Aperson having origins in any of the original peoples of Hawaii, Guam,Samoa, or other Pacific Islands

• Asian (Not Hispanic or Latino) - A person having origins in any of theoriginal peoples of the Far East, Southeast Asia, or the IndianSubcontinent, including, for example, Cambodia, China, India, Japan,Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, andVietnam

• American Indian or Alaska Native (Not Hispanic or Latino) - A personhaving origins in any of the original peoples of North and SouthAmerica (including Central America), and who maintain tribal affiliationor community attachment

• Two or More Races – All persons who identify with more than one ofthe above five races

8


Job Categories

“Officials and Managers” divided into two levels:

• 1.1 Executive/Senior Level Officials and Managers

• 1.2 First/Mid Level Officials and Managers

Professionals

Technicians

Sales Workers

Administrative Support Workers

Craft Workers

Operatives

Laborers and Helpers

Service Workers9

6

10


EEO-1 Filing Deadline is Sept. 30, 2012

What Should I Do?!?

11

7


A Strategic Approach For Last Minute Filers

1. Make Job Category Changes

2. Locate Your Company’s Log-In ID and

Password

12


3. Use Race and Ethnicity Information

Already on Record

4. To Survey or Not to Survey


13

8


• Distribute to all employees invitation to self-

identify race and gender -- ASAP

― Set return deadline – 24 hours

• Obtain race/gender info of employees who

decline to self-ID

― Visual Determination

― Existing Employment Records


14


• Invitation to Self-Identify Race and Gender

− To comply with governmental record-keeping

and reporting requirements

− Voluntary

− Confidential

− Kept separate from personnel file

− Not considered for employment purposes


15

9


For the Die-Hard Procrastinator

• Requests for Extension of Time

― Before September 30, 2012

― Send to [email protected]

― Include company name, company number,

address, and contact information for person

responsible for the report

• Acquisition/Merger/Spin-Off?

― [email protected]

― [email protected]

16


It Will Not Go Away If You Ignore It

• Failure to file or late filing could result in

EEOC motion to compel

― If successful, EEOC could seek attorneys’ fees

and costs

• Willfully making false statements

punishable by fine or up to 5 years’

imprisonment

17

10


OFCCP’S ACTIVE CASE

ENFORCEMENT INITIATIVE

18


OFCCP’S ACTIVE CASE ENFORCEMENT INITIATIVE

• In 2010, OFCCP rescinded Active CaseManagement (ACM) and replaced it with ActiveCase Enforcement (ACE). Under ACE:

• All reviews include full desk audits

• Audits are “more thorough, more in-depth”

• Focus no longer solely on systemic discrimination – agency

will review individual discrimination and technical

affirmative action requirements

• Previously, OFCCP focused on systemic discrimination

impacting 10 or more individuals; under ACE, “classes” may

be 2 or more

• “1-in-25” and “Focused” Onsite Reviews

19

11


HOW TO PREPARE FOR AN OFCCP AUDIT

20


THEY’RE BACK – DON’T FORGET ABOUT GOOD FAITH OUTREACH EFFORTS

• For the past several years, OFCCP only gave

cursory attention to the programmatic aspects

of AAP compliance, like good faith outreach

efforts

• But, under the current administration, all this

has changed . . .

• OFCCP is now aggressively scrutinizing

employer’s good faith outreach efforts to the

female, minority, veteran, and disabled

communities

21

12


• Employers must be able to demonstrate

commitment to outreach

• OFCCP now regularly demands detailed

information on how many applicants were

referred by diversity recruitment sources and

of these, how many were interviewed, hired,

etc.

• If OFCCP finds the contractor was deficient in

recordkeeping and/or outreach, the Agency

will issue technical violations

22

THEY’RE BACK – DON’T FORGET ABOUT GOOD FAITH OUTREACH EFFORTS


• Identify at least one strong diversity source for

females, minorities, disabled and veterans

• Monitor the number and quality of applicants

referred by diversity recruitment sources and,

as appropriate, change these sources

• File timely EEO-1 and Vets 100/100A reports

• Post jobs with the state delivery system

• Send annual letters to vendors and

subcontractors

• Review and revise your purchase order

23

HOW TO BOLSTER YOUR GOOD FAITH OUTREACH EFFORTS

13


TIP-TOEING THROUGH THE

COMPENSATION MINEFIELD

24


Navigating the Rapidly Evolving Compensation Minefield

• For years, OFCCP reviewed pay data for discrimination

but had little to show for it

• In 2006, OFCCP issued the Systemic Pay Discrimination

Standards and Voluntary Self-Audit Guidelines

• OFCCP said it would vigorously find and eradicate pay

discrimination throughout the land

• The result . . . very few large systemic pay discrimination

findings or settlements

25

14


Old OFCCP Compensation Analyses

Under the 2006 Standards…

OFCCP would initially run the 30-10-3 tipping point test on job groups

If 30-10-3 “red flag”, OFCCP would require submission of “12-Factor” data to conduct “mini-regression” analysis

OFCCP would conduct a “deep dive” class-action style investigation including on-site investigations, wide-ranging review of personnel documents and policies and extensive interviews

26


OFCCP Wants Options . . . Lots of ‘em

• Now, OFCCP uses a variety of statistical and non-statistical tools and will seek to enforce both individual and systemic compensation cases…

27

COHORTMultiple Regression

2% or $2K difference

by “pay division”

Anecdotal with Statistics

Anecdotal without

Statistics

15


• Settlements for alleged discriminatory

compensation are on the rise. . .

• FY 2008 – 0 compensation settlements



• FY 2011 – 27 – 33% of all CAs involved

comp

28

Compensation: The OFCCP’s New Hot Spot


How to be Proactive Amidst the Uncertainty . . .

• OFCCP’S FIRST STEP IN AUDIT IS

• 2% or $2,000 disparity by pay groupings that

employer submits

• SO, NEED TO BE STRATEGIC ABOUT JOB TITLES

• Important pay groupings are as clear and

meaningful as possible

Should mirror your pay process

Who truly is similarly situated for pay purposes

29

JOB TITLES need to tell the real story of who truly ought to be compared

16


• Always conduct statistical analyses on trend data

before submitting to OFCCP

• Know what the data will show before the agency

does

• Arguments regarding scope of data to be

submitted should be based on the statistical

results

• Conduct the same standard deviation analysis the

agency will and determine if there is a statistical

basis for a claim

• If the data generates statistical “red flags”, refine the

data before submission or negotiate to reduce scope

of data submitted (location, decision maker, etc.)30

Ok, So the Rules Have Changed . . .What Can I Do NOW


• Conduct periodic preventative self-audits of your

pay practices

• Formal Self-Audits

Statisticians, Counsel, 3rd Party Vendor

• Internal Self-Audit

Review compensation between individuals with

the same job title

Investigate underlying pay disparities to ensure

you can defend it as being job-related and

consistent with business necessity

If you find an issue you cannot explain, consider

making pay adjustments

31

Ok, So the Rules Have Changed . . .What Can I Do NOW

17


Protect Your Self-Audits

• You should take every precaution to ensure the

highest degree of protection and confidentiality

possible when conducting self-audits

• Types of Protections include:

• The Attorney-Client Privilege

• The Attorney Work Product Privilege

• Self-Critical Analysis Privilege

32


OFCCP’S

BREAD AND BUTTER –

INVESTIGATING ADVERSE

IMPACT

33

18


Introduction: OFCCP’s Changing Approach

• In the past, the OFCCP focused on goals and good faith

efforts to address areas of underutilization

• Then, the Agency began to focus more on adverse impact

trends (especially applicant-to-hire adverse impact)

• Through more robust software and training, the

Agency became good at identifying areas of adverse

impact

• Traditionally, the Agency analyzed how minorities and

females fared in the employer’s hiring process as

compared to non-minorities and males

• But over the past few years, it all changed again…

34


•Recent enforcement activity by the OFCCP is catching

employers unaware, including:

• “Reverse” adverse impact;* and,

• Sub-minority adverse impact

• Bottom Line: The OFCCP is “going where the numbers

take them.” The OFCCP is no longer focusing on just

minorities and females, but rather investigates any

alleged race and/or gender discrimination

* Of course, “reverse” discrimination is discrimination -- this is just a way of

characterizing when the trend is against non-minorities or males.

Adverse Impact Recent Developments

35

19


AnalysisRate for

Protected Group

Rate for Non-

ProtectedGroup

IRAStandardDeviation

Minority v. Non-Minority 9/100.09

1/100.01

9.0 -2.596

Female v. Male 4/100.04

6/100.06

0.67 0.649

Traditional Adverse Impact Analysis

Traditionally, these are good adverse impact results.

36


SAMPLE ADVERSE IMPACT ANALYSIS

AnalysisRate for

Protected Group

Rate for Non-

ProtectedGroup


Minority v. Non-Minority

9/100.09

1/100.01

9.0 -2.596


6/100.06

0.67 0.649

37

Now, the OFCCP would further investigate the -2.596standard deviation above as evidence of adverseimpact against non-minorities.

20


AnalysisRate for

Protected Group

Rate for Non-

ProtectedGroup


Minority v. Non-Minority 9/100.09

1/100.01

9.0 -2.596


6/100.06

0.67 0.649

Black v. All Others 1/80.01

9/120.08

.17 1.987

Black v. Hispanic 1/80.01

8/20.40

.03 5.416

Sample “Reverse” and Sub-Minority Analyses

38


• 4 Traditional Analyses:

• Male v. Female

• Female v. Male

• Minority v. Non-Minority

• Non-Minority v. Minority

• 8 “All Other” Analyses

• Black v. All Other

• Hispanic v. All Other

• Asian v. All Other

• Native American v. All Other

• All Other v. Black

• All Other v. Hispanic

• All Other v. Asian

• All Other v. Native American

Adverse Impact Analyses Per Job Group

39

21


Adverse Impact Analyses Per Job Group

20 Sub-Minority Analyses

White v. Black Black v. White

White v. Hispanic Hispanic v. White

White v. Asian Asian v. White

White v. Native American Native American v. White

Black v. Hispanic Hispanic v. Black

Black v. Asian Asian v. Black

Black v. Native American Native American v. Black

Hispanic v. Asian Asian v. Hispanic

Hispanic v. Native American Native American v. Hispanic

Asian v. Native American Native American v. Asian

40


•That’s 32 ways to trigger in each job group!

•This number will increase with additional race

codes (new race codes, Two or more races, etc.).

•Take a moment to think about how many job

groups you have… If you have ___ job groups, the

OFCCP will run:

• 5 job groups: 160 analyses



• 20 job groups: 640 analyses!!

OFCCP Adverse Impact Analyses

41

22


Strategic disposition codes should helpemployers clarify:

• When? When did the candidate fall out?

• Why? Why did they fall out?

• What? What was wrong with the candidate?

This is especially helpful for employersundergoing an audit several years later

42

Purposes of Applicant Disposition Codes

© 2012 Jackson Lewis LLP 43

Selection Stage Adverse Impact Analyses

• If statistically significant adverse impact is

found in an audit, OFCCP will analyze the

individual “components” of the hiring process,

such as:

• Online pre-screen and assessment tools

• HR screening of employment applications

• Managers’ in-person interview

• Background check, drug screen, etc.

• As a result, it’s imperative to utilize Strategic

Disposition Codes to identify the stage each

applicant fell out of the hiring process.

23


Examples of poor disposition codes:

• More qualified applicant selected

• Not chosen

• Interviewed/screened

• Applicant disqualified

• Blank

44

Disposition Codes: What Not To Use


• Examples of strategic disposition codes:

• Resume Screen – Better Qualified Candidate–Industry Exp.

• Pre-Screen Questions - Not willing to work for compensation

• Resume Screen – Did Not Possess Basic Qualifications –

Education

• Phone Screen – Better Qualified Candidate–Education

• Phone Screen - Not willing to work hours

• Test – Failed Test

• Interview - No show to interview

• Drug Test – Did Not Show for Drug Test

• Background Check – Failed Background Check

• Offer – Declined Offer

Disposition Codes: What To Use

45

24


46

• Where there is an indicator of adverse

impact, employer must demonstrate

selection criteria is:• job-related

• consistent with business necessity

• uniformly applied

• Mission Critical!

• Without accurate disposition information,

employers are unable to demonstrate job

relatedness or consistency and likely will

have to negotiate a monetary settlement

with the OFCCP

Effective Use of Applicant Data to Monitor for Adverse Impact and Defend Hiring Process


Questions?

47

25


Thank you for attending!

48

Please contact us with any questions:

Eric Felsberg, [email protected]

P: (631) 247-4640

Jackson Lewis LLPwww.jacksonlewis.com

26

EEO-1 Form Reporting for 2012 [Read-Only] · EEO-1 Form: Reporting for 2012 Presented By: Eric J....

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