HRACC 2011
Susan K. Krell
Jackson Lewis LLP
krells@jacksonlewis.com
Margaret J. Strange
Jackson Lewis LLP
strangem@jacksonlewis.com
1
TOPICS
 Paid Sick Leave Law
 Ban on Gender Identity Discrimination
 Ban on Use of Credit Reports as a
Condition of Employment
 Procedural Changes at the CHRO
 Increased Penalties for Violations of
Personnel Files Act
2
Paid Sick Leave Law: The Basics
 Effective January 1, 2012
 CT will become first state in U.S. to
mandate paid sick leave for employees
 Mandates 40 hours paid leave per
calendar year for covered absences
 Prohibits retaliation against employees
who request or use sick leave
3
Paid Sick Leave Law: Covered Employers
 Public and private employers:

With 50+ employees in the state in any
one quarter in the previous calendar year
 Exemptions:

Manufacturers (as defined in the North
American Industrial Classification
System)

Any nationally-chartered non-profit which
provides recreation, child care and
education (e.g., YMCA)
4
Paid Sick Leave Law: Covered Employees
 “Service Workers”

Hourly and salaried employees not exempt from
the federal Fair Labor Standards Act

Primarily engaged in any one of a number of
listed occupations

68 occupations listed in statute include: waiters
and waitresses, home health aides, social
workers, dental hygienists, physician assistants,
cashiers, receptionists, secretaries and
administrative assistants, bus drivers, librarians,
pharmacists, retail clerks and tellers.
 Does not include “day or temporary workers”
5
Paid Sick Leave Law: Covered Reasons
 Illness, injury or health condition
 Medical diagnosis, care or treatment of
mental or physical illness, injury or
health condition
 Preventive Care
 For service worker or child or spouse of
service worker
 Leave related to family violence or
sexual assault
6
Paid Sick Leave Law: Accrual and Eligibility
 Beginning January 1, 2012 (or date of
hire)
 One hour of leave for each 40 hours
worked
 Up to 40 hours per calendar year
 Employees are eligible to use leave after
working 680 hours starting January 1,
2012 (or date of hire)
7
Paid Sick Leave Law: Accrual and Eligibility
 Part time employees accrue paid sick
leave, but must have worked average of
10+ hours per week in preceding
quarter to use the leave
 Carryover of up to 40 hours of leave
permitted, but may not use more than
40 hours in any one calendar year
8
Paid Sick Leave Law: Notice from Employee
 If leave foreseeable, up to 7 days notice
 If leave unforeseeable, as soon as
practicable
 If leave is 3 or more consecutive days,
employer may require that employee
provide documentation to support that
leave being taken for covered purpose
9
Retaliation Prohibited
 Applies to all employees, not just covered
service workers
 No employer shall take retaliatory personnel
action or discriminate against an employee
because the employee:
 Requests or uses paid sick leave under the
paid sick leave law or under the employer’s
policies
 Files a complaint with the Dept. of Labor
alleging a violation of paid sick leave law
10
Safe Harbor For Existing PTO Policies
 Safe Harbor Provision: An employer
that provides paid sick leave or “other
paid leave,” such as vacation, personal
days or paid time off (PTO) is deemed to
be in compliance with the law if
employer’s PTO policy mirrors or
exceeds, the requirements of the paid
sick leave law for 40 hours of leave per
calendar year.
11
Safe Harbor For Existing PTO Policies
 To take advantage of “safe harbor,” an
employer’s PTO policy must:
 Accrue at a rate equal to or greater than
the rate under the law
 Allow use of accrued hours for reasons
allowed by the law
 Allow use as necessary, without regard to
any minimum increment requirements
(legislative history suggests 1 hr)
12
Safe Harbor For Existing PTO Policies
 To take advantage of “safe harbor,” an
employer’s PTO policy must:
 Allow carry over of accrued, unused
time up to 40 hours to next calendar
year
 Satisfy employer’s notice
requirements under the law
13
Paid Sick Leave Law: Penalties and
Enforcement
 Enforced by DOL
 Civil fine of $500 per violation of antiretaliation provision
 Civil fine of $100 per violation of any other
provision
 All appropriate relief, including payment of
used paid sick leave, rehiring or reinstatement
to previously held job, back wages, lost
benefits.
 Commissioner’s decision may be appealed to
the Superior Court
14
Paid Sick Leave Law: Posting Requirement
 Employer must provide notice to all employees
at time of hire that:
 Employee entitled to paid sick leave,
including amount available and terms of
use
 That retaliation for requesting or using
leave is prohibited
 That the employee can file a complaint with
the Labor Commissioner for any violation
 May comply by displaying poster in both
English and Spanish
15
Paid Sick Leave Law: What To Do Now?
 Determine if you are a covered employer
 Determine if you employ covered service
workers
 focus on duties, not titles
 Review existing PTO policy to see if safe harbor
provision applies
 Many unknowns, including:
 Interaction with FMLA
 Minimum increments of leave
16
Ban on Gender Identity Discrimination
 Effective October 1, 2011
 Applies to any public or private
employer with 3 or more employees
 Applies to employment agencies and
labor organizations
 Broader coverage than under Title VII
 Enforced by Commission on Human
Rights and Opportunities (CHRO)
17
Definition of Gender Identity or Expression
 “Gender–related identity, appearance or
behavior, whether or not that genderrelated identity, appearance or behavior
is different from that traditionally
associated with the person’s physiology
or assigned sex at birth.”
18
Definition of Gender Identity or Expression
 Can be shown by:
 Medical history, care or treatment of
the gender-related i.d.
 Consistent and uniform assertion of
gender-related i.d.
 Any other evidence that gender-
related i.d. is sincerely held, part of
person’s core i.d. or not being
asserted for improper purpose
19
Ban on Gender Identity Discrimination:
What to Do Now?
 Review and revise employee handbook
and non-discrimination policies to make
sure that gender identity is included
 Make sure HR professionals are aware
of change in law so that they can help
disseminate information and provide
appropriate training/ information
 Make sure supervisors, managers are
aware of change in law
20
Ban on Use of Credit Scores as Condition of
Employment
 Effective October 1, 2011
 Applies to public and private employers
of 1+ employees, except for financial
institutions
 Prohibits employers and their agents,
representatives or designees from
requiring an employee or prospective
employee to consent to a request for a
credit report as a condition of
employment, with certain exceptions
21
Ban on Use of Credit Scores as Condition
of Employment: Financial Institutions
“Financial Institutions” means any entity or
affiliate of a state bank and trust
company; national banking association;
state or federally chartered savings
bank, savings and loan association, or
credit union; insurance company;
investment advisor; broker-dealer; or
entity registered with the federal
Securities and Exchange Commission
22
Ban on Use of Credit Scores as Condition
of Employment: Exceptions
 Report is required by law
 Employer reasonably believes employee
committed a violation of the law related to
employee’s job
 Report is substantially related to employee’s
current or potential job
 Employer has a bona fide purpose to request
or use information in the report that is
substantially job-related and is disclosed to the
employee or applicant in writing
23
Substantially Related to the Employee’s
Current or Potential Job
 Is a managerial position that involves setting
direction or control of business, division, unit or
agency or business;
 Involves access to customers’, employees’ or the
employer’s personal or financial information;
 Involves a fiduciary responsibility to the employer;
 Provides an expense account or corporate debit or
credit card;
 Provides access to confidential or proprietary
business information;
24
Substantially Related to the Employee’s
Current or Potential Job
 Provides access to information which has actual
or potential independent economic value
because it is not generally known or readily
ascertainable and there are reasonable efforts to
keep the information secret;
 Involves access to employer’s nonfinancial
assets of at least $2,005 in value including, but
not limited to, museum and library collections
and prescription drugs and pharmaceuticals.
25
Ban on Use of Credit Scores as Condition
of Employment: Enforcement
 Employee or prospective employee may
file complaint with the Labor
Commissioner
 Labor Dept. may impose penalty of
$300 for each inquiry made in violation
of ban
 Even if exceptions apply, employer must
comply with federal Fair Credit
Reporting Act
26
Procedural Changes at the CHRO
 Effective October 1, 2011
 If complaint is dismissed during the
Merit Assessment Review process,
provides automatic, internal review
27
Procedural Changes at the CHRO
 If complaint is not dismissed during
Merit Assessment Review process:

Requires mandatory mediation
conference within 60 days

Permits request for early legal
intervention
 Shortens time period that a complainant
must wait to request a release of
jurisdiction from 210 to 180 days
28
Increased Penalties for Repeat Violators of
Personnel Files Act
 Personnel Files Act

Requires employers to provide
employee with access to his or her
personnel files or medical records; and

Prohibits employers from disclosing the
file or records without the employee’s
consent
29
Increased Penalties for Repeat Violators of
Personnel Files Act
 Effective October 1, 2011, penalties for
violations of Act increased from $300 to
$500 for a first violation and to $1,000 for
any subsequent violation related to the
same employee
 No private cause of action
30
Significant Judicial Decisions
31
Dukes v. Wal-mart (2011)
_ U.S. _,131 S.Ct. 2541
Salaried and hourly female employees alleging
systemic practice of gender discrimination
Wide range of positions
3,400 stores nationwide
1.5+ M member class
Ninth Circuit upheld District Court certification
•
Relied on Plaintiffs statistical and anecdotal
evidence to satisfy commonality
requirement
32
Dukes v. Wal-mart
Supreme Court reverses Ninth Circuit
Lack of commonality under Rule 23(a)(2)
•
No evidence employer had a general policy
of discrimination
•
Local discretion by supervisors couldn’t
establish inference of discrimination
•
Court rejected Plaintiffs’ statistical and
anecdotal evidence
Unanimously held back pay claims could not be
certified under Rule 23 (b)(2)
33
Dukes v. Wal-mart
Class actions are still viable, but harder to certify
•
Plaintiffs seeking monetary relief may still seek class
certification under Rule 23(b)(3)
•
Must show that class issues predominate over individual
issues and
•
Class action is most efficient and desirable means of trying
case
•
Mandatory notice to potential class members who may
“opt out” of class
Likely outcome is smaller, more focused classes
34
Retaliation Protection Extends to
“Zone of Interest”
Title VII does create a cause of action for thirdparty retaliation for persons who did not
themselves engage in protect activity.
Thompson v. North American Stainless, LP.,
No. 09-291 (January 24, 2011)
Adopted a “zone of interest” standard (i.e. does
the individual fall within the ‘zone of interests’
sought to be protected by the statutory
provision whose violation forms the legal
basis of the complaint)
35
Cat’s Paw
An employer, without discriminatory
motive, may be liable for firing an
employee based on information or advice
from biased managers ( “ cat ’ s paw ”
theory) Staub v. Proctor Hospital, 09-400
(March 1, 2011)
36
FSLA Retaliation - Kasten v. Saint-Gobain Performance
Plastics Corp., No. 09-834 (Mar. 22, 2011)
Facts: Plaintiff alleged that his employer
terminated him because he made internal
complaints to management about the company’s
time-keeping practices.
This case turned on whether the FLSA’s antiretaliation provision provides that an employer
cannot “discharge or in any other manner
discriminate against any employee because such
employee has filed any complaint” should be
interpreted as in the past to mean a written
complaint or whether a verbal complaint suffices.
37
FSLA Retaliation - Kasten v. Saint-Gobain Performance
Plastics Corp., No. 09-834 (Mar. 22, 2011)
Held: both oral and written complaints of a
violation of the Fair Labor Standards Act are
protected conduct under the statute’ s antiretaliation provision.
The majority remanded for determination
whether any complaint made solely to an
employer – orally or in writing – falls under the
FLSA’s protective mantle
• Justice Scalia dissents—issue was ripe for
review
38
ADA Amendments
Act Final Regulations
39
ADAAA: Recent Developments
Disability claims:
• Made up 25% of all EEOC charges
filed in 2010
• Highest
year-over-year growth
among all charges filed
New laws and regulations have made
it significantly easier to state a
disability claim
40
ADAAA: Recent Developments
"You
might not think you have a disability,
but if you have a medical condition and
you feel you are discriminated against
based on that condition, then you are
covered.“
• EEOC Commissioner Chai Feldblum,
quoted in “More Disabled Workers
File Discrimination Claims in 2009,”
USA Today, 8/20/10
41
ADA Amendments Act Final Regulations
Released March 25, 2011, with emphasis on expansive
coverage
Disability Discrimination: To prove employer discriminated
based on disability, claimant only has to show that
employer “regarded” claimant as disabled – that is,
engaged in prohibited conduct because of an actual or
perceived impairment
• Claimant is not required to show that the
impairment did, or was perceived to, substantially
limit a major life activity
42
ADA Amendments Act Final Regulations
Employer Defense: No claim if condition
was “transitory and minor”
• “Transitory” = less than 6 months
• “Minor” = ?
43
ADA Amendments Act Final Regulations
Failure to Accommodate: To prove that
employer failed to provide a reasonable
accommodation, claimant must prove
the existence of, or a record of, an
impairment that “substantially limits a
major life activity”
44
ADA Amendments Act Final Regulations
Two expansive lists of “major life activities”:
• Actual activities (broadened to include
learning,
concentrating,
reading,
interacting with others, etc.)
• Operation of “major bodily functions”
(immune system; special sense organs
and skin; normal cell growth; and
digestive, genitourinary, bowel, bladder,
neurological,
brain,
respiratory,
circulatory, cardiovascular, endocrine,
hemic, lymphatic, musculoskeletal, and
reproductive functions)
45
ADA Amendments Act Final Regulations
Employer Defense: Employee’s
impairment posed a direct threat to the
safety of the employee or others in the
workplace.
46
ADA Amendments Act Final Regulations
Other Key Points:
Individualized assessment is required … but
certain impairments limiting major bodily
functions will “in virtually all cases” be
disabling, even in their early stages
• e.g.,
deafness, blindness, intellectual
disability, mobility impairments, autism,
cancer, cerebral palsy, diabetes, epilepsy,
HIV, MS, major depressive disorder, bipolar
disorder, post-traumatic stress disorder,
OCD, schizophrenia, etc.
47
ADA Amendments Act Final Regulations
No durational threshold - conditions
with <6 months duration can be
disabilities
Mitigating measures cannot be
considered in establishing disability
• Note: An employee who refuses to
take mitigating measures (e.g., take
medication) is still disabled
48
Leave as a Reasonable Accommodation
Questions to Consider
• Avoid applying no-fault leave policies
resulting in automatic termination after a
set period of time
• Consider first if employee is entitled to
leave under FMLA
• If not, does ADA requires leave as a
reasonable accommodation?
49
Leave as a Reasonable Accommodation
How Much Leave?
• “Indefinite” leave is not required
• Courts ask:
• Will the employee be able to return in
the identifiable future and be able to
resume job functions?
• How much leave has the employee
already taken?
• Would additional leave create an
undue hardship?
50
ADA/FMLA Intersection:
The Intermittent Leave Puzzle
The Case of the Anxious Dispatcher
City emergency dispatcher sought intermittent
FMLA leave for depression and anxiety for 6
months or more and was terminated based on
an independent medical evaluation showing
her unfit for duty.
Held: (1) The fitness for duty exam was a
business
necessity
because
the
job
requirements for a dispatcher were to be alert
and calm with callers and (2) Plaintiff had no
right to FMLA leave because she requested
intermittent leave for 6 months or longer.
Wisbey v. City of Lincoln, 612 F.3d 667 (8th Cir.
2010).
51
ADA/FMLA Intersection:
The Intermittent Leave Puzzle
The Case of the Absent Flight Attendant
Flight attendant suffering from psoriatic arthritis
was unable to work multiple days each month. The
airline terminated him for excessive absences after
he exhausted intermittent FMLA leave.
Held: (1) Plaintiff’s attendance did not render him
unqualified for the job because the attendance
policy was extremely lenient and Plaintiff complied
with it for 7 years and (2) the jury could reasonably
have concluded that attendance was not an
essential job function because the airline allowed
Plaintiff to take intermittent FMLA leave for 7
years without attempting to reassign him to a
temporary position. Carmona v. Southwest Airlines
Co., 604 F.3d 848 (5th Cir. 2010).
52
What is GINA
GENETIC INFORMATION
NONDISCRIMINATION ACT
53
GINA
• Prohibits use of genetic information in
employment decision-making
• Restricts employers and other covered
entities from requesting, requiring, or
purchasing genetic information
54
GINA
• Requires that genetic information be
maintained as a confidential medical
record, and places strict limits on
disclosure of genetic information
• Provides
remedies
for
individuals
whose genetic information is acquired,
used, or disclosed in violation of its
protections
55
Why Should I Care?
• I don’t collect anyone’s DNA
• I don’t want to collect anyone’s
DNA
• I don’t want to know anything
about anyone’s DNA
• I certainly would not discriminate
against someone based on
his/her DNA
• So, why should I care about
GINA?
56
Who is Covered by GINA?
• Employers with 15+ employees
• “Employee” includes applicants, current
and former employees
57
Prohibited Acquisition of Genetic
Information by Employer
General Rule:
•
An employer may not request, require, or
purchase Genetic Information of an
individual or his/ her family member
Request includes:
•
•
•
Internet searches in a way likely to obtain
Genetic Information
Actively listening to third party conversations
or searching an individual’s personal effects
for purpose of obtaining Genetic Information
Asking about an individual’s current health
status in a way that is likely to result in
obtaining Genetic Information
58
Exception for Inadvertently Acquired
Genetic Information
•Acquisition of Genetic Information in
response to lawful request for medical
information WILL NOT BE inadvertent unless
employer directs entity from whom it
requested the information not to provide
Genetic Information
•For the exception to apply, employer should
provide written notice about GINA with the
request for medical information
59
Enforcement of GINA
• Same as for Title VII
•
No claim for disparate impact
•
201 charges filed with EEOC in 2010
• Same remedies as for Title VII
Employers must post notice pertaining to
GINA obligations and rights
•
Subject to a fine of up to $100 for
failure to post such notice
60
Practical Implications for Employers
•
•
Train managers to comply with GINA
Audit medical information processes;
are changes needed due to GINA?
•
Revise employee medical certification
forms to include EEOC’s suggested
language
•
Write to any health care practitioner
conducting medical exams on behalf of
employer that disclosure of Genetic
Information prohibited
•
Post new EEO poster with GINA
information
61
Hiring Using
Social Networking Sites
62
Hiring & Social Networking
• There is no law that directly prohibits the
use of SNS in the hiring process.
• There has been no reported increase in
failure-to-hire
cases
based
on
information obtained from SNS.
• There is no law which requires the use of
SNS in the hiring process.
• But there are RISKS to accessing and
using such information.
63
Risks for Employers
• Hiring Issues Associated with Using the Web
•
Lawful background checks? FCRA?
•
Discrimination concerns?
•
Lawful-off duty conduct?
•
First Amendment protections under
Connecticut law?
•
Reliability? Even if not unlawful, employer
may make employment decisions based on
inaccurate information.
64
Lessons Learned—Hiring
If you are going to use SNS for hiring decisions:
•
Develop policy on whether employer will
search internet or access social
networking sites for job applicants.
•
Do so consistently and in a uniform
manner.
•
Make sure candidates are notified, in
writing, about the company’s use of SNS
to gather information.
65
Lessons Learned—Hiring
•
Consider searching social networks
only
after
the
initial
in-person
interview with the applicant.
•
Ensure
appropriate
employment
decisions are made based on lawful,
verified information.
66
Lessons Learned—Hiring
•
Designate
non-decision
maker
to
conduct search. The individual should be
properly
trained
to
avoid
improper
access and to screen out information
that can not be lawfully considered in
the decision-making process.
•
The
non-decision
maker
can
then
provide “scrubbed” information to the
decision maker for consideration.
67
Lessons Learned—Hiring
•
Rely on job-related criteria (preferably
from a job description).
•
Be aware of relying on legal, off-duty
conduct.
•
Follow
best
practices:
identify
a
legitimate, non-discriminatory reason for
the hiring decision with documentation
supporting the decision.
68
The Facebook® Firing Case
•
The Policy
•
“Employees are prohibited from making
disparaging, discriminatory or defamatory
comments when discussing the Company
or the employee's superiors, co-workers
and/or competitors.”
•
“Employees are prohibited from posting
pictures of themselves in any media,
including but not limited to the Internet,
which depicts the Company in any way…”
69
The Facebook® Firing Case
•
The NLRB Complaint
• The NLRB argued that the employee’s conduct was
protected, concerted activity and that her
termination was unlawful.
•
•
In addition, the employer’s policy was “overly
broad” and unlawfully interfered with its
employees’ exercise of their right to engage in
protected concerted activity under Section 7 of the
NLRA.
The parties settled, but another case may provide more
direction:
• On February 4, 2011, the SEIU filed an unfair labor
practice charge against a Connecticut bus
company that alleges that the employer violated
the NLRA merely by “maintaining” policies in its
employee handbook.
70
Best Practices for Employers
Be proactive.
Adopt clear policies.
• Have a policy regarding use of and access to company
owned technology.
• Implement a social networking/blogging policy.
Place employees on notice regarding potential monitoring of
electronic communications.
Consider a total ban on the internet during working
hours.
Consider whether to block employee access to social
networking sites during working hours.
71
Methods to Minimize Risk
Ensure that company policies governing
corporate logos, branding, and identity apply
to all electronic communications.
Get a signed acknowledgment of the
policies.
Employees must comply with company
policies with respect to their electronic
communications, such as policies prohibiting
harassment and enforcing standards of
conduct.
Company reserves the right to take
disciplinary action in the employee’s
communications violated company policy.
72
Some Statistics
AT THE EEOC:
99,922 Private Sector Charges
102,000
Total Charges
Total Charges
97,000
92,000
87,000
82,000
77,000
72,000
73
EEOC Charges Filed in FY 2010
Type of Claim
No. Filed
% of Total
Charges Filed
% Change
from FY2009
Race
35,890
35.9%
6%
Sex
29,029
29.1%
3.5%
National Origin
11,304
11.3%
5%
Religion
3,790
3.8%
12%
Retaliation
36,258
36.3%
8%
Age
23,264
23.3%
2%
Disability
25,165
25.2%
17%
Equal Pay Act
1,044
1.0%
-1%
201
.2%
----
GINA
74
Retaliation Claims Soar
•For the first time ever, retaliation (36,258)
surpassed race (35,890) as the most frequently
filed cause of action at the EEOC.
•The Supreme Court perpetuates . . .
•
•
•
•
•
•
•
Burlington Northern & Santa Fe Railway Co. v. White (2006)
Gomez-Perez v. Potter (2008)
CBOCS West, Inc. v. Humphries (2008)
Crawford v. Metropolitan Government of Nashville (2009)
Thompson v. Northern American Stainless, LP (Jan. 24,
2011)
Staub v. Proctor Hospital (Mar. 1, 2011)
Kasten v. St.-Gobain Performance Plastics Corp. (Mar. 22,
2011)
75
EEOC Secures Record Dollars
Through its combined
enforcement, mediation and
litigation programs, the EEOC
secured more than $404
million in monetary benefits
from employers -- the highest
level of monetary relief ever
obtained by the EEOC through
the administrative process.
76
The EEOC’s Expectations for 2011
• The EEOC predicts it will receive over
107,000 charges in FY 2011, the largest
number ever filed.
• Anticipates a budget increase of $18 million
allocated to:
• Increasing hiring to improve enforcement
initiatives;
• Reducing backlog; and
• Targeting systemic litigation
77
EEOC Initiatives for FY 2011
• Systemic Initiative
• Focus on discrimination class actions
• E-Race Initiative
• Eradicating Racism and “Colorism” from
Employment
• Targeting credit and background checks
• Objective
• Increase the number of multiplaintiff/class/pattern & practice cases
78
Signs the EEOC is Looking for Systemic Issues
•
Buzz words in the EEOC Charge like “pattern
or practice” or “similarly situated”
•
No option to mediate
•
Charge implicates a policy applicable to
other employees
•
Sequence of charges on same issue
•
Charge accompanied by subpoena
•
Broad request for information
•
Request for on-site visit
79
EEOC Initiative: E-RACE in 2011
•
EEOC has focused on the use of criminal
background and credit checks in hiring as
part of the E-RACE initiative
•
EEOC will likely issue a new Guidance
seeking to ban applications from asking
about conviction records
80
CT Human Rights and Opportunities
Commission (CHRO)
Statistics:
• Charges filed:
24 more than in FY 2009
1,740
(1,716)
Most Frequently-Filed Causes of Action:
•
•
•
Gender (483)
Age (464)
Color (461)
81
OFCCP Enforcement Statistics FY 2010
Financial remedies - $9.75 million
Workers covered – 12,397
Average benefit per “victim” - $786
Number of compliance evaluations – 4,960
Number of Conciliation Agreements - 919
82
OFCCP Alleges that Meyer Tool Discriminated
Against Black Applicants (2010)
• OFCCP review began in 2005.
• OFCCP claims discrimination against
Black applicants for entry level
machinist positions.
• Conducted an onsite in 2008
83
OFCCP Alleges that Meyer Tool Discriminated
Against Black Applicants (2010)
• Referred to Regional Solicitor in in
March 2009 because they could not
agree on a remedy amount.
• OFCCP seeking back pay, interest,
hiring of at least 14 class members, an
updated applicant tracking system, etc.
84
After ACM and Under New ACE, OFCCP Will
Conduct Audits Very Differently
Since 2003, OFCCP used Active Case
Management (ACM) to govern how to
conduct audits

Focused
only
on
systemic
discrimination; left affirmative action
and individual discrimination behind.

Also, concerns that savvy contractors
may be “cooking the books” to avoid
red flags and on-sites.
85
Active Case Enforcement: So What Now?
In December, 2010 OFCCP rescinded ACM;
replaced with Active Case Enforcement (ACE)
•
OFCCP significantly broadening audit focus
•
Pat Shiu said audits need to be “more
thorough, more in-depth” Investigations of
systemic and individual discrimination and
“patterns of individual discrimination”
86
Active Case Enforcement: So What Now?

Previously, OFCCP only would look at
classes of 10 or more; under ACE,
“classes” of 2 or more.

“Patterns of individual
discrimination” mean one-on-one or
small group comparisons.
87
Active Case Enforcement: So What Now?
ACE Changes the Rules for “Full Desk
Audits” and On-sites
•
Under old Rules, full desk audit was
a rare occurrence

Under ACE, all audits will be full
desk audits

Focus
no
longer
solely
on
systemic discrimination, expands
focus to individual discrimination
and traditional affirmative action
88
Active Case Enforcement: So What Now?
•
Far More On-site audits

For past many years, OFCCP generally
went on-site only to investigate
statistical indicators

Now will go on-site for statistical red
flags, anecdotal indicators and
technical issues

Much more detailed on-site letter
89
Active Case Enforcement: So What Now?
ACE Changes the Rules In Other Areas Too
•
Intense focus on outreach to Veterans
and Disabled

OFCCP increasingly requires proof
of
results
from
outreach
–
encouraging employers to request
disabled and veteran status of
applicants
90
New Rules and New Emphasis
in Compliance Reviews
Compensation Discrimination
Veterans and the Disabled
91
So Now What?
How is the OFCCP Investigating Pay Discrimination?
OFCCP
is
utilizing
multiple
initial
diagnostic tools to identify indicia of
disparate impact and disparate treatment
or pattern-or-practice discrimination
92
So Now What?
How is the OFCCP Investigating Pay Discrimination?
OFCCP is using a much BROADER initial test
to show indicia of systemic and individual
compensation discrimination
•
Many regions are seeking 12-factor data where there are
disparities of either 2% or $2,000 by job title or other grouping
submitted with the AAP
93
So Now What?
How is the OFCCP Investigating Pay Discrimination?
For job titles with 2% or $2,000 disparities, OFCCP
may move forward in different ways to determine
its strongest case
Will request 12-factor data to run multiple
regression analysis to determine the existence of
statistically significant disparities for both
disparate impact and pattern-or-practice cases
94
So Now What?
How is the OFCCP Investigating Pay Discrimination?
May conduct a cohort analysis to
determine the existence of individual
pay
claims
under
disparate
treatment
Depending on the theory of liability
that best suits the situation, OFCCP
may or may not conduct on-site
investigation to procure anecdotal
evidence
95
How to be Proactive Amidst the
Uncertainty…
NOW, OFCCP’S FIRST STEP IN AUDIT IS
•
Generally, OFCCP has scrapped the 30-30-3 for
2% or $2,000 disparity by job title…
SO, NEED TO BE STRATEGIC ABOUT JOB TITLES
•
Signals to the contractor community the
importance of JOB TITLES being as clear and
meaningful as possible…
JOB TITLES need to tell the real story of who
truly ought to be compared
96
How to be Proactive Amidst the
Uncertainty…
FOR EXAMPLE…
•
Communications technology contractor has 100
diagnostic technicians with the job title “Diagnostic
Technician”
•
However, not all 100 do the same thing – in fact, they
actually do very different things and require very
different education, experience, and skills
•
DO THIS  Engineering Diagnostic Technician I,
Communications Diagnostic Technician II, and Design
Diagnostic Technician I
•
INSTEAD OF THIS  Diagnostic Technician
97
How to be Proactive Amidst the
Uncertainty…
Whether conducting a self-analysis or
responding to an audit, the internal
investigation needs to be as FLEXIBLE
and PRACTICAL as the OFCCP will be…
98
How to be Proactive Amidst the
Uncertainty…
Conduct an initial 2% or $2,000
diagnostic, but then be ready to go
where the numbers and facts take
you…
99
How to be Proactive Amidst the
Uncertainty…
Be prepared for in-depth COHORTS and
far-reaching MULTIPLE REGRESSION
ANALYSES
COHORTS
•
By job group, job title, or other
appropriate grouping, “eye-ball” the
differences and be prepared to tell
the story why…
100
How to be Proactive Amidst the Uncertainty…
MULTIPLE REGRESSION ANALYSIS
•
Do not limit the multiple regression to
the 12 factors – dig deep to determine
all factors that relate to pay
•
Performance ratings, prior experience,
degree type, promotion from nonexempt position, etc.
101
Compensation
And, let’s remember that no good deed goes
unpunished so . . .
Conduct all proactive pay self-audits and AAP
pay equity analyses under attorney-client
privilege
•
That gives you the strongest argument later on to keep the
analyses and pay adjustments to yourselves
102
Veterans and the Disabled
• The OFCCP is looking for greater outreach
as to Veterans and the Disabled.
• Be sure to send all job postings to the state
job bank and consider sending
announcements of open positions to
organizations that work with the disabled
and covered veterans.
103
Veterans and the Disabled
• If the company uses an online application
process it must be accessible to individuals
with disabilities, inform applicants that
they may request a reasonable
accommodation, and provide applicants
with another way to apply (e.g., in person,
telephonically, with a paper application).
104
Veterans and the Disabled
• A statement to that effect such as the one
below could be helpful:
COMPANY endeavors to make WEBSITE
URL accessible to any and all users. If you
would like to contact us regarding the
accessibility of our website or need assistance
completing the application process, please
contact contact name, title, dept at phone
number including tty/tdd lines if applicable, email address, or link to a website.
105
Veterans and the Disabled
• The OFCCP in a Compliance Review will ask
for documentation of outreach efforts to
veterans and organizations which work with
the disabled.
• Outreach organizations consist of, but are
not limited to, rehabilitation facilities, social
service agencies, educational institutions,
organizations for individuals with disabilities
and the local Veterans Representative for
veteran organizations.
106
Thank You
Any Questions?
krells@jacksonlewis.com
strangem@jacksonlewis.com
107
108