EEOC Investigates Use of Credit History for Employment Screening

The EEOC held a public Commission meeting in October to hear testimony about the growing use of credit history as a screening tool in hiring.  The Commission’s Chair, Jacqueline Berrien explained that the meeting was an opportunity to learn more about the ways the use of credit histories “could create concerns that reach the enforcement authority and responsibility of the EEOC.”  She also stated that it was only the first in a series of meetings to examine overall “practices that may create discriminatory barriers for job seekers and unfairly screen out qualified workers.”

A number of speakers quoted studies showing that the practice of using credit history as a screening tool has a disparate impact on particular demographic groups.  In EEOC v. Freeman, filed in 2009, the Commission asserted that Freeman’s use of credit history and criminal history was not job-related or consistent with business necessity, and furthermore that the use had a disparate impact on Black, Hispanic, and male job applicants in violation of Title VII.  A transcript of the meeting is available here.  

OFCCP Discontinues Active Case Management (ACM) Procedures for Its Compliance Reviews

On December 2nd, Director Shiu rescinded the directive establishing the Active Case Management (ACM) Procedures for compliance reviews.  The ACM was a desk audit process used to quickly expedite compliance reviews of establishments that demonstrated no evidence of systemic discrimination.  Instead, the OFCCP concentrated on establishments with indications of potential discriminatory practices affecting 10 or more employees.  According to the rescission transmittal, the ACM “caused OFCCP to narrow the focus of its enforcement efforts and has eroded OFCCP’s enforcement authority.”  The discontinuance of the ACM procedures was one of several recommendations of The National Equal Pay Enforcement Task Force, which reported to President Obama in July 2010.  The full text of the ACM Directive is available here.  Review the final recommendations of the National Equal Pay Enforcement Task Force here.

OFFCP Sending Out Corporate Scheduling Announcement Letters (CSALs)

According to a National Industry Liaison Group (NILG) communication, NILG confirmed with OFCCP Director Shiu’s office that the OFCCP will be sending CSALs to establishments as advance notice they have been identified for potential compliance reviews.  The next round of letters will be sent this month or in January 2011.  The CSAL notifies companies that two or more of its establishments are on the OFCCP’s list of establishments selected to undergo an evaluation during the scheduling cycle.  As of 2010, the OFCCP no longer limits the number of compliance evaluations per contractor that it may conduct.  For more information on Corporate Scheduling, click here.

OFCCP to Rescind 2006 Compensation Guidelines

On October 25th the OFCCP sent a notice to the Office of Management and Budget titled “Notice of Proposed Rescission, Interpreting Nondiscrimination Requirements of Executive Order 11246, with Respect to Systemic Compensation Discrimination and Voluntary Guidelines for Self Evaluation.”  This move follows OFCCP Director Patricia Shiu’s announcement at the National Industry Liaison Group conference in August that the agency was discarding the guidelines adopted in 2006 and soliciting “your ideas and views about a new wage data collection instrument.”  The elimination of the guidelines is part of the administration’s focus on pay equity.  The full text of Director Shiu’s address is available here.

The 2006 compensation guidelines codified OFCCP’s protocol for enforcing systemic compensation discrimination.  The guidelines provided factors to identify “similarly situated employee groupings,” as well as the methodology to compare compensation levels among employees in these groups.  Details regarding the use of multiple regression analysis to prepare these compensation level comparisons were also provided in the guidelines.  The OFCCP has not adopted replacement methodologies at this time.

OFCCP Seeks to Strengthen Affirmative Action Requirements for People with Disabilities

The OFCCP has expressed its intent to strengthen the affirmative action requirements of federal contractors to employ people with disabilities.  It issued an Advanced Notice of Proposed Rulemaking (ANPR) asking for comments on the “range of successful evidence-based practices employers use to recruit, hire, retain and advance” the disabled.  The ANPR stated that it was considering adopting measures “similar to those for supply and service contractors” under Executive Order 11246 including numerical measurements.  The OFCCP sought public comment on several issues, including the following:

• “If OFCCP were to require federal contractors to conduct utilization analyses and to establish hiring goals for individuals with disabilities, comparable to the analyses and establishment of goals required under the regulations implementing Executive Order 11246, what data should be examined in order to identify the appropriate availability pool of such individuals for employment?”
• “Would the establishment of placement goals for individuals with disabilities measurably increase their employment opportunities in the Federal contractor sector? Explain why or why not.”
• “What experience have Federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local or foreign governments?”

For a complete copy of the ANPR as it appears in the Federal Register, click here.

DOL and the Office of the Special Counsel Join Forces on Veteran Discrimination Cases

The U.S. Office of Special Counsel (OSC), an independent federal investigative and prosecutorial agency, will be working with the DOL to take on half of all employment discrimination and retaliation cases filed by veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA ).  This initiative will start April 2011.  In three years, the Government Accountability Office will issue a report to Congress assessing the success of the initiative using a variety of performance measures including cost, timeliness, and case outcomes, to ultimately determine whether the OSC or the DOL should handle all veteran discrimination cases.  In FY 2009, DOL received 1,431 complaints under USERRA, and 174 contractors were cited by the OFCCP for recruitment violations impacting veterans.

DOL Awards Over $12 Million to Build Workforce Databases in 13 States

According to the U.S. Department of Labor, the funds will enable states to “build or expand” data bases of workforce and education data.  States will use these databases to evaluate the effectiveness of employment and training programs and to better inform customers about their training and education options.  Individual grants ranged from $289,417 to $1 million dollars.  The states who won grants are Florida, Iowa, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, North Dakota, Ohio, South Carolina, Texas and Virginia.  To read descriptions of the grantees’ planned initiatives, click here.

Meet the Experts

January 25 – 26, 2011, Helmsley Park Lane Hotel, New York, NY
American Conference Institute (ACI) Annual Conference on Employment Practices Liability Insurance
ERS Group is an exhibitor.  For information, visit http://www.americanconference.com/EPLI.htm.
To register, contact info@ersgroup.com

January 27 – 28, 2011, Helmsley Park Lane Hotel, New York, NY
ACI Consumer Finance Class Actions & Litigation Conference
ERS Group is an exhibitor. For information, visit http://www.americanconference.com/CFCA.htm.
To register, contact info@ersgroup.com.

January 31 – February 1, 2011, Hyatt Regency Miami, Miami, FL
ACI National Forum on Wage Hour Claims and Class Actions
ERS Group is an exhibitor.  For information or registration visit http://www.americanconference.com/wageandhour.htm or contact info@ersgroup.com.

February 24, 2011, Shutters on the Beach, Santa Monica, CA
ERS Group Seminar: Current Trends in Wage and Hour Litigation economic, legal and statistical issues
ERS Group Presenters:  Hossein Borhani, Ph.D., Sharon Kelly, Ph.D.
Guest Presenters:  E. Deborah Jay, Ph.D. (Field Research), Diane Kimberlin, Esq. (Littler); Roberta Steele, Esq. (Goldstein Demchak Baller Borgen & Dardarian)
For information or to register, visit http://www.ersgroup.com/seminars.asp or contact info@ersgroup.com.

April 2011, Washington, DC (Date TBA)
ERS Group Seminar: Employment Discrimination – economic and statistical evidence
ERS Group Presenters:  Mary D. Baker, Ph.D., Sharon Kelly, Ph.D., Paul F. White, Ph.D.
For information or to register, contact info@ersgroup.com.

April 14 – 16, 2011, Hilton Chicago, Chicago, IL
Society for Industrial and Organizational Psychology National Conference
Mary D. Baker, Ph.D. is a panelist.  For information, visit http://www.siop.org/conferences/.

April 27 – 29, 2011, J.W. Marriott Buckhead, Atlanta, GA
ERS Group Seminar: Preparing for OFCCP Compliance Audits & Crafting Effective Affirmative Action Plans
ERS Group Presenters: Carole M. Amidon, Ph.D., George Desloge, Paul F. White, Ph.D.
Attorney Presenter:  Jon A. Geier, Esq. (Paul Hastings)
For information or to register, visit http://www.ersgroup.com/seminars.asp or contact info@ersgroup.com.

June 13 – 14, 2011, Practicing Law Institute Conference Center, New York, NY
Practicing Law Institute – “Pocket MBA: Finance for Lawyers”
Dubravka K. Tosic, Ph.D. is a presenter.  For information, visit http://www.pli.edu/

August 8 -11, 2011, J.W. Marriott Desert Springs Resort, Palm Desert, CA
LRP – 26th Annual Federal Dispute Resolution Conference
Come meet ERS Group experts at our booth.  For information, visit http://www.fdr-conference.org