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HRACC 2011. Susan K. Krell Jackson Lewis LLP Margaret J. Strange Jackson Lewis LLP TOPICS. Paid Sick Leave Law Ban on Gender Identity Discrimination Ban on Use of Credit Reports as a Condition of Employment

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HRACC 2011

Susan K. Krell

Jackson Lewis LLP

Margaret J. Strange

Jackson Lewis LLP


  • 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

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

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)

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”

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

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)

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

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

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

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.

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)

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

Paid Sick Leave Law: Penalties and Enforcement

  • Enforced by DOL

    • Civil fine of $500 per violation of anti-retaliation 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

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

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

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)

Definition of Gender Identity or Expression

  • “Gender–related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

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

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

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

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

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

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;

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.

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

Procedural Changes at the CHRO

  • Effective October 1, 2011

  • If complaint is dismissed during the Merit Assessment Review process, provides automatic, internal review

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

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

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

  • Significant Judicial Decisions

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

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)

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

Retaliation Protection Extends to “Zone of Interest”

  • Title VII does create a cause of action for third-party 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)

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)

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 anti-retaliation 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.

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 anti-retaliation 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

  • ADA Amendments

  • Act Final Regulations

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

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

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

ADA Amendments Act Final Regulations

  • Employer Defense: No claim if condition was “transitory and minor”

    • “Transitory” = less than 6 months

    • “Minor” = ?

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”

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)

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.

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.

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

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?

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?

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).

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).

What is GINA

  • Genetic Information

  • Nondiscrimination Act


  • Prohibits use of genetic information in employment decision-making

  • Restricts employers and other covered entities from requesting, requiring, or purchasing genetic information


  • 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

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?

Who is Covered by GINA?

  • Employers with 15+ employees

  • “Employee” includes applicants, current and former employees

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

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

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

  • 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

    • Hiring UsingSocial Networking Sites

    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.

    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.

    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.

    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.

    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.

    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.

    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…”

    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.

    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.

    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.

    Some Statistics

    • AT THE EEOC:

    • 99,922 Private Sector Charges

    EEOC Charges Filed in FY 2010

    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)

    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.

    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

    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 multi-plaintiff/class/pattern & practice cases

    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

    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

    CT Human Rights and Opportunities Commission (CHRO)

    • Statistics:

      • Charges filed: 1,740

      • 24 more than in FY 2009 (1,716)

    • Most Frequently-Filed Causes of Action:

      • Gender (483)

      • Age (464)

      • Color (461)

    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

    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

    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.

    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.

    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”

    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.

    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

    Active Case Enforcement: So What Now?

    • FarMore 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

    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

    New Rules and New Emphasis in Compliance Reviews

    • Compensation Discrimination

    • Veterans and the Disabled

    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

    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

    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

    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

    How to be Proactive Amidst the Uncertainty…

    JOB TITLES need to tell the real story of who truly ought to be compared


      • Generally, OFCCP has scrapped the 30-30-3 for 2% or $2,000 disparity by job title…


      • Signals to the contractor community the importance of JOB TITLES being as clear and meaningful as possible…

    How to be Proactive Amidst the Uncertainty…


      • 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

    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…


    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…

    How to be Proactive Amidst the Uncertainty…

    • Be prepared for in-depth COHORTS and far-reaching MULTIPLE REGRESSION ANALYSES


      • By job group, job title, or other appropriate grouping, “eye-ball” the differences and be prepared to tell the story why…

    How to be Proactive Amidst the Uncertainty…



      • 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 non-exempt position, etc.


    • 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

    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.

    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).  

    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, e-mail address, or link to a website.

    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.

    • Thank You

    • Any Questions?



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