Desmond, who is a partner in the New Orleans office of national employment law firm Jackson Lewis, made her comments at BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas.
About Goals and Achievement
Under OFCCP (Office of Federal Contract Compliance Programs) rules, where the company’s representation of protected class members is significantly lower than availability, a goal is created. For measuring goal achievement, a placement analysis will show the placement of minorities/females into each job group, including new hire and promotions.
An annual report will document the achievement of goals. This report should be shared with the CEO.
What Obligations May Be Created
A goal creates a company obligation to pay additional attention to recruitment efforts to attract diverse candidates. It is for this process that OFCCP is now demanding more proactive outreach from employers.
Goals are recalculated every year, and may change depending on the placement activity and other changes in minority/female representation in the workforce.
Penalties/Sanctions
OFCCP investigates for violations either through compliance evaluations or in response to complaints. If a violation is found, OFCCP may ask the federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor or subcontractor.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days to request a review by an Administrative Law Judge (ALJ), who hears the case and recommends a decision. The Department of Labor’s Administrative Review Board issues final decisions. If the contractor or subcontractor is dissatisfied with the ALJ’s decision, it may appeal the decision to the Board.
If the Board finds that the contractor or subcontractor in violation, it may order the contractor or subcontractor to provide appropriate relief, which may include restoration of back pay and employment status and benefits for the victim(s) of discrimination.
Depending upon the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, and debarment.
Are class action lawyers peering at your pay practices? It’s likely, but you can keep them at bay by finding and eliminating any wage and hour violations yourself. Our editors recommend BLR’s easy-to-use FLSA Wage & Hour Self-Audit Guide. Try it for 30 days … on us.
Roles in Maintaining Affirmative Action Compliance
It’s important for everyone involved to know his or her roles with regard to affirmative action, says Desmond. She outlines the roles as follows:
Recruiters
- Launch and coordinate company-wide diversity recruitment efforts
- Aid in the implementation of applicant tracking
HR generalists
- Investigate adverse impact and compensation disparities
- Compile materials documenting the company’s diversity recruitment and outreach efforts
- Oversee applicant tracking and self-identification
- Retain applicant/hiring process documentation
Management
- Spearhead and oversee investigation of adverse impact and compensation disparities
- Ensure the adequacy of company-wide EEO/anti-discrimination and anti-harassment policies, complaint procedures, and training for managers and employees
- Design and communicate an affirmative action compliance strategy.
Affirmative action and pay discrimination issues—How can you be sure your operations will pass muster when inspected? Only one way—audit before ”they” do.
"They," in this case, might be the feds, your employees’ lawyers, or even bankers deciding you don’t get that loan because improperly classified workers represent a huge potential liability.
Experts say that it’s always better to do your own audit, and fix what needs fixing, before authorities do their audit. Most employers agree, but they get bogged down in how to start, and in the end, they do nothing. There are, however, aids to making FLSA self-auditing relatively easy.
What our editors strongly recommend is BLR’s FLSA Wage & Hour Self-Audit Guide. It is both effective and easy to use, and even won an award for those features. Here’s what customers like about it:
- Plain English. Drawing on 30 years of experience in creating plain-English compliance guides, our editors have translated the FLSA’s endless legalese into understandable terms.
- Step-by-step. The book begins with a clear narrative of what the FLSA is all about. That’s followed by a series of checklists that utilize a simple question-and-answer pattern about employee duties to find the appropriate classification.
All you need to avoid exempt/nonexempt classification and overtime errors, now in BLR’s award-winning FLSA Wage & Hour Self-Audit Guide. Plus receive the special report Top 100 FLSA Overtime Q&As for a limited time. Find out more.
- Complete. Many self-audit programs focus on determining exempt/nonexempt status. BLR’s also adds checklists on your policies and procedures and includes questioning such practices as whether your break time and travel time are properly accounted for. Nothing falls through the cracks because the cracks are covered.
- Convenient. Our personal favorite feature: A list of common job titles marked “E” or “NE” for exempt/nonexempt status. It’s a huge work saver.
- Up to Date. If you are using an old self-auditing program, you could be in for trouble. Substantial revisions in the FLSA went into effect in 2004. Anything written before that date is hopelessly—and expensively—obsolete. BLR’s FLSA Wage & Hour Self-Audit Guide includes all the changes.
You can examine BLR’s FLSA Wage & Hour Self-Audit Guide for up to 30 days at no cost or obligation. Go here and we’ll be glad to arrange it.
I’m curious if some would-be or former contractors just found these requirements too onerous and decided to stick or switch to nongovernment work. Or if having complied with these obligations can help defend against discrimination cases.