EEO-1 Form Reporting for 2012 [Read-Only] · EEO-1 Form: Reporting for 2012 Presented By: Eric J....
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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
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© 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.
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© 2012 Jackson Lewis LLP
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.
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© 2012 Jackson Lewis LLP
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.
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© 2012 Jackson Lewis LLP
ABOUT ERIC FELSBERG, ESQ.
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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.
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© 2012 Jackson Lewis LLP
AGENDA
Eeo-1 Form: Reporting for 2012
__________
OFCCP Audits: What You Need to
Know
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© 2012 Jackson Lewis LLP
EEO-1 Form: Reporting for 2012
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© 2012 Jackson Lewis LLP
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
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© 2012 Jackson Lewis LLP
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
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© 2012 Jackson Lewis LLP
EEO-1 Filing Deadline is Sept. 30, 2012
What Should I Do?!?
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© 2012 Jackson Lewis LLP
A Strategic Approach For Last Minute Filers
1. Make Job Category Changes
2. Locate Your Company’s Log-In ID and
Password
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© 2012 Jackson Lewis LLP
3. Use Race and Ethnicity Information
Already on Record
4. To Survey or Not to Survey
A Strategic Approach For Last Minute Filers
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© 2012 Jackson Lewis LLP
• 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
A Strategic Approach For Last Minute Filers
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© 2012 Jackson Lewis LLP
• 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
A Strategic Approach For Last Minute Filers
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© 2012 Jackson Lewis LLP
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?
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© 2012 Jackson Lewis LLP
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
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© 2012 Jackson Lewis LLP
OFCCP’S ACTIVE CASE
ENFORCEMENT INITIATIVE
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© 2012 Jackson Lewis LLP
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
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© 2012 Jackson Lewis LLP
HOW TO PREPARE FOR AN OFCCP AUDIT
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© 2012 Jackson Lewis LLP
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
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© 2012 Jackson Lewis LLP
• 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
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THEY’RE BACK – DON’T FORGET ABOUT GOOD FAITH OUTREACH EFFORTS
© 2012 Jackson Lewis LLP
• 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
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HOW TO BOLSTER YOUR GOOD FAITH OUTREACH EFFORTS
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© 2012 Jackson Lewis LLP
TIP-TOEING THROUGH THE
COMPENSATION MINEFIELD
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© 2012 Jackson Lewis LLP
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
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© 2012 Jackson Lewis LLP
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
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© 2012 Jackson Lewis LLP
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…
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COHORTMultiple Regression
2% or $2K difference
by “pay division”
Anecdotal with Statistics
Anecdotal without
Statistics
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© 2012 Jackson Lewis LLP
• Settlements for alleged discriminatory
compensation are on the rise. . .
• FY 2008 – 0 compensation settlements
• FY 2009 – 2 compensation settlements
• FY 2010 – 10 compensation settlements
• FY 2011 – 27 – 33% of all CAs involved
comp
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Compensation: The OFCCP’s New Hot Spot
© 2012 Jackson Lewis LLP
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
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JOB TITLES need to tell the real story of who truly ought to be compared
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© 2012 Jackson Lewis LLP
• 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
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Ok, So the Rules Have Changed . . .What Can I Do NOW
© 2012 Jackson Lewis LLP
• 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
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Ok, So the Rules Have Changed . . .What Can I Do NOW
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© 2012 Jackson Lewis LLP
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
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© 2012 Jackson Lewis LLP
OFCCP’S
BREAD AND BUTTER –
INVESTIGATING ADVERSE
IMPACT
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© 2012 Jackson Lewis LLP
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…
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© 2012 Jackson Lewis LLP
•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
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© 2012 Jackson Lewis LLP
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.
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SAMPLE ADVERSE IMPACT ANALYSIS
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
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Now, the OFCCP would further investigate the -2.596standard deviation above as evidence of adverseimpact against non-minorities.
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© 2012 Jackson Lewis LLP
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
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
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© 2012 Jackson Lewis LLP
• 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
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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
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© 2012 Jackson Lewis LLP
•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
• 10 job groups: 320 analyses
• 15 job groups: 480 analyses
• 20 job groups: 640 analyses!!
OFCCP Adverse Impact Analyses
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© 2012 Jackson Lewis LLP
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
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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.
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© 2012 Jackson Lewis LLP
Examples of poor disposition codes:
• More qualified applicant selected
• Not chosen
• Interviewed/screened
• Applicant disqualified
• Blank
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Disposition Codes: What Not To Use
© 2012 Jackson Lewis LLP
• 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
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© 2012 Jackson Lewis LLP
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• 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
© 2012 Jackson Lewis LLP
Questions?
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© 2012 Jackson Lewis LLP
Thank you for attending!
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Please contact us with any questions:
Eric Felsberg, [email protected]
P: (631) 247-4640
Jackson Lewis LLPwww.jacksonlewis.com
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Notes