Statistical Analysis in Employment Law: OFCCP

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March Installments of "The Proactive Employer" Podcast

We have more great installments of "The Proactive Employer" scheduled for the next few weeks. We have another live installment and a special one hour episode. We'll be talking about the use of statistics in reduction in force and other employment decisions, compensation self-auditing, OFCCP requirements and compliance, calculation of economic damages in wrongful termination, and the elements of a comprehensive employment litigation risk management plan.

Friday, 2/26: In this LIVE installment, our guest will be Jonathan Hyman, a Partner in the Labor and Employment Group of Kohrman Jackson and Krantz. We will be discussing the use of statistics in reduction in force matters, and how statistical analysis factors into employment law. Mr. Hyman is the author of the Ohio Employer's Law Blog.

Friday, 3/5: In this installment, I will be providing five standards for conducting an OFCCP-compliant compensation self-evaluation with respect to gender race, and ethnicity. We'll cover construction of similarly situated employee groupings (SSEGs), statistical analysis and multiple regression analysis, practical versus statistical significance, investigation and remediation of statistically significant disparities, and contemporaneous creation and retention of required data.

Friday, 3/12: We'll continue our discussion of compensation self-auditing. I'll be providing a recap of my webinar, "Understanding the Compensation Self-Audit". Topics include reasons to conduct a self audit, the self-audit framework, similarly situated employee groupings, edge factors, data measurability, availability and collection, multiple regression analysis, practical and statistical significance, and follow up investigations. The webinar will take place on Thursday, March 4 at 2PM Eastern. You can register for the webinar here.

Friday, 3/19: In this installment, I will be discussing proactive statistical analyses. These analyses span the entire employment life cycle, from initial hiring, initial assignment and initial pay, to compensation, promotions, and reductions in force. These proactive statistical analyses will not only help you assess your risk of employment-related litigation, they can lead to operational efficiencies, more streamlined processes, and can help you transform your organization into a best-practices firm that can attract and retain top talent.

Friday, 3/26: In this installment, I will be providing an overview of the calculation of damages in wrongful termination litigation. My presentation will focus on the key issues and concepts, and will be non-mathematical in nature. We'll talk about mitigation, duration of unemployment and job search, and estimation of earnings streams but-for the alleged wrongful termination and given the alleged wrongful termination.

March should be a very exciting month at The Proactive Employer. I hope you'll be able to join me for these upcoming installments. You can listen online or download these podcasts at The Proactive Employer, or you can subscribe (free of charge) via iTunes.

Recap of Wednesday's Webinar 'Using Social Media for Recruiting? Beware Disparate Impact"

Today's installment on The Proactive Employer podcast is a 15-minute recap of the webinar from 2/9/10. To go along with that podcast, I thought I'd make the handout from my webinar available to everyone. Enjoy!

Using Social Media For Recruiting Handout ( S Thomas)

View more documents from Equal Employment Advisory and Litigation Support Division of Minimax Consulting.

March Installments of "The Proactive Employer" Podcast

Newton Software and Minimax Consulting Enter a Joint Marketing Initiative

Newton Software, a leading provider of on-demand applicant tracking and recruiting software solutions, and Minimax Consulting, a leading provider of expert statistical analysis of employment decisions and employment litigation risk management, are pleased to announce a joint marketing agreement that will provide significant benefits to customers.

Stephanie R. Thomas, Ph.D., Director of the Equal Employment Advisory and Litigation Support Division (EEA/LS) of Minimax Consulting stated, “Our agreement with Newton will position both organizations to enhance service offerings to new and existing customers. We’re looking forward to introducing our clients to Newton, and to providing expert insights and analysis of EEOC and OFCCP compliance for Newton’s customers.”

“The services offered by Minimax’s Equal Employment Advisory and Litigation Support Division are a perfect complement to Newton’s capabilities,” said Joel Passen, Newton Software’s Co-Founder and VP of Marketing. “We have a growing number of customers that are relying on our EEO and OFCCP Compliance feature to capture, track and report critical employment data. Dr. Thomas and the Minimax team will now offer our customers the ability to analyze this data to make better employment decisions and to manage employment litigation risks.

About Newton Software:

Newton Software is a leading provider of on-demand applicant tracking and recruiting software solutions. Newton software delivers an easy to use, fast-to-deploy, affordable solution for creating, managing and improving corporate recruiting programs with no hardware to buy or software to license. With deep domain knowledge in corporate recruiting, a best-in-class software-as-a-service platform and a fast-growing community of customers, Newton enables smarter recruiting practices that allow for companies to quickly become more competitive, compliant, and efficient.

www.newtonsoftware.com

About Minimax Consulting:

Minimax Consulting is a full service consulting firm providing quantitative services across a wide variety of industries. The Equal Employment Advisory and Litigation Support Division of Minimax Consulting brings more than ten years of experience in expert statistical analysis of employment decisions and employment litigation risk management. Headed by Stephanie R. Thomas, Ph.D., the EEA/LS Division provides consulting services, dispute resolution support, and expert testimony to small businesses, Fortune 500 companies, major law firms, and local, state, and federal governments and agencies. The EEA/LS Division specializes in labor and employment issues in both advisory and litigation contexts.

www.minimaxconsulting.com

OFCCP Compliance Guidance for Small Businesses from the US DOL

More and more small businesses are becoming involved in 'service and supply' contracting with the US government. Navigating the waters of requirements and regulations can be difficult for those new to the process of government contracting. The exact requirements and regulations that apply depend on the characteristics of your business, the types of contracts you have been awarded, etc. Legal counsel is best positioned to advise you of your obligations, and any legal or regulatory questions should be posed to your attorney. However, there are six Equal Employment Opportunity requirements that 'supply and service' Federal contractors must satisfy.

Don't Discriminate : Federal contractors and subcontractors are prohibited from engaging in workplace employment discrimination on the basis of race, color, religion, sex, or national origin. Employment discrimination takes different forms. Employment discrimination is illegal and generally results when a person is treated differently (usually less favorably) because of his or her race, color, religion, sex, or national origin. In addition, employment discrimination can result when a neutral policy or practice has an adverse impact on the members of any race, sex, or ethnic group and the policy or practice is not job related or required by business necessity.

Post EEO Posters : Federal contractors are required to post OFCCP's Equal Employment Opportunity Poster in a conspicuous place. A good place to post it is in a locker or lunchroom or an area where employees can take breaks. You can obtain the Equal Employment Opportunity Poster by contacting the nearest OFCCP office.

Include the EEO Tag Line in employment advertising : Federal contractors are required to state in all solicitations or advertisements for employment that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.

Keep Records : Federal contractors are required to maintain any personnel or employment records made or kept by the contractor. Examples of records that must be maintained include:

job descriptions;
job postings and advertisements;
record of job offers;
applications and resumes;
interview notes;
tests and test results;
written employment policies and procedures;
personnel files.

Federal contractors must keep these records for a period of two years from the date of the personnel action or the creation of the personnel record, whichever occurs later. If contractors have fewer than 150 employees or a contract of less than $150,000, records must be kept for only one year.

Permit OFCCP access to books and records during a complaint investigation or compliance investigation : When a complaint is filed against a Federal contractor, or when a Federal contractor is selected to undergo a compliance evaluation, the contractor is obligated to allow OFCCP access to its premised for the purpose of conducting an on-site investigation. The contractor must permit OFCCP to inspect and copy the books and records that may be relevant to the matter under investigation and pertinent to compliance with the requirements of Executive Order 11246.

File an Annual EEO-1 Report : The Standard Form 100, Employer Identification Report (EEO-1 Report) requires that employers report on the number of employees by race, ethnicity and gender by job category. The EEO-1 Report must be filed annually by contractors who meet any of the following criteria:

All private employers that are subject to Title VII and have 100 or more employees;
All Federal contractors with 50 or more employees that have either:

a contract, subcontract, or purchase order of $50,000 or more;
serve as a depository of Government funds in any amount;
a financial institution that serves as issuing and paying agent of U.S. Savings Bonds and Savings Notes.

These six Equal Employment Opportunity requirements apply to all 'supply and service' Federal contractors. For additional information on your obligations as a Federal contractor, consult your legal counsel.

* The US Department of Labor has prepared a guide to assist small businesses with OFCCP compliance. The information summarized in this post is taken from "OFCCP's Guide for Small Businesses with Federal Contracts"; the PDF version of this guide can be found here.

OFCCP to Host Series of One-Hour Web Listening Sessions

On Monday, December 7, 2009, the Department of Labor issued its Semiannual Regulatory Agenda, announcing the Department’s anticipated regulatory activities and priorities for the upcoming year. Included in the Department’s Agenda are three regulatory activities from the Office of Federal Contract Compliance Programs (OFCCP).

OFCCP’s mission is to enforce three equal employment opportunity laws: Executive Order 11246, as amended (EO); Section 503 of the Rehabilitation Act of 1973, as amended (503); and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA). These laws prohibit federal contractors and subcontractors from discriminating on the bases of race, color, religion, sex, national origin, disability, and veteran status. They also require affirmative action in employment by federal contractors and subcontractors. OFCCP accomplishes its mission by conducting compliance evaluations, investigating complaints filed, and hosting compliance assistance events for federal contractors and subcontractors.

In late 2010 and early 2011, OFCCP plans to publish a series of proposals that will seek to enhance the agency’s existing regulations and improve compliance with the laws that OFCCP enforces. To help inform the development of these proposals, OFCCP is seeking input from stakeholders.

Please join OFCCP Director Patricia A. Shiu, as she hosts a series of one-hour Web Listening Sessions that:

highlight OFCCP's anticipated regulatory activities;
offer a critical opportunity for stakeholders to provide suggestions and recommendations to OFCCP;
provide information on how stakeholders can participate in the official rulemaking process.

Register for the listening session you're interested in by clicking the applicable date below. Register early, as space is limited!

Tue, Jan 12, 2010 2:00 PM - 3:00 PM EST - - Affirmative Action & Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results under Section 503 of the Rehabilitation Act. This regulation protects individuals with disabilities from employment discrimination by federal contractors and subcontractors. Projected Publication date for Advance Notice of Proposed Rulemaking (ANPRM): 12/2010

For the audio portion of this listening session, please call 800-369-1722, (outside United States call 517-308-9423). This passcode will be required to join the call: 6341500. (Restrictions may exist when using a mobile telephone.) To submit comments, suggestions, or feedback please email:OFCCP-Regulatory-Agenda-503@dol.gov

Thu, Jan 14, 2010 2:00 PM - 3:00 PM EST - - Affirmative Action & Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Under VEVRAA, federal contractors and subcontractors are prohibited from discrimination on the basis of veteran status. Projected Publication date for Notice of Proposed Rulemaking (NPRM): 12/2010 For the audio portion of this listening session, please call 800-369-1722, (outside United States call 517-308-9423). This passcode will be required to join the call: 6341500. (Restrictions may exist when using a mobile telephone.) To submit comments, suggestions, or feedback please email:OFCCP-Regulatory-Agenda-VEVRAA@dol.gov

Wed, Jan 20, 2010 2:00 PM - 3:00 PM EST - - Construction Contractor Affirmative Action Requirements. OFCCP regulations at 41 CFR Part 60-4, require Federal and federally assisted construction contractors to provide equal opportunity in all construction trades. Projected Publication date for Notice of Proposed Rulemaking (NPRM): 1/2011

OFCCP values stakeholders’ engagement in the rulemaking process and encourages all interested parties to provide suggestions and feedback on the current regulations. Please note however, that these sessions will take place prior to the publication of any official proposals, and will not be considered regulatory comments. For this reason, OFCCP will not be making a presentation with respect to the planned content of any of the forthcoming regulatory proposals and will be unable to answer specific questions regarding the planned content. These listening sessions are intended to be just one of many steps that OFCCP will take as it begins the process of developing the proposals. OFCCP has allotted 45 minutes for suggestions and feedback and each caller that wishes to make a statement will be provided with two minutes to present until the available time is exhausted.

*reprinted from US Department of Labor