Ohio ILG

Past Tips of the Month

September/October 2017

The Office of Management and Budget (OMB) has made a decision regarding the 2017 Employer Information Report (EEO-1). For the 2017 EEO-1 Survey cycle, private employers with 100 employees or more and federal contractors with 50 employees or more AND $50,000 in contract(s) will be required to report the same data that they reported on the EEO-1 report they used for 2016. This EEO-1 collects race, ethnicity, and gender data by job category, just as the EEO-1 has done for fifty years, and does not include the collection of pay data.

For the 2017 EEO-1 Survey cycle, the EEO-1 report will be due on March 31, 2018. The employment data used for the 2017 EEO-1 report should be selected from a payroll period in October, November, or December, the fourth quarter of calendar year 2017.

If you have any questions, please feel free to contact the EEO-1 Joint Reporting Committee at 1-877-392-4647.

Joyce Morgan, Morgan Consulting Services, LLC

August 2017

As we are all aware, OFCCP has typically evaluated the use of tests (or assessments) during compliance reviews/evaluations. Many times, this question comes up in a standard questionnaire used by the Compliance Officers to gather additional information about the policies and procedures in place at the company/facility. Other times, it could be because someone mentioned it; HR in discussion with the Compliance Officer, or in an interview conducted by OFCCP with an employee. Keep in mind, assessments are tests as are lifting or other requirements for proving that a particular function of the job can be performed. OFCCP does not have the jurisdiction to prohibit testing. OFCCP does, however, have jurisdiction over the impact on the use of the tests; the same as the jurisdiction over any other policy or procedure that could be discriminatory. If tests are used, the onus is on the company to determine if there is a selection disparity against any group based on race, ethnicity or gender. In order to do this, records must be maintained on (1) names of individuals(or other individual identifier) tested, or invited to test; (2) race, ethnicity and gender of each individual who took the test; (3) the cut-off score or other numerical determination/outcome of how well the individual performed; and (4) the end result of referred for further consideration or not (or hired/not hired). No shows for the test can ultimately be eliminated but must be tracked. The selection for testing is important as it is the first calculation in determining the impact on the use of a test. OFCCP will typically request summary statistics by race, ethnicity and gender, to determine if there is a selection disparity against any group. Males and non-minorities are protected groups in this assessment. If there is no adverse impact, OFCCP should not be requesting any other information, including any records. If they do ask for records even though there is no disparate impact, this is the time you should seek expert guidance. It is recommended you require OFCCP to put their request in writing and indicate the reasons records are being requested on a test that is not adverse to any group. Once you make the decision to turn over records, especially in cases where there is no need to do so, you cannot take them back. Don’t take the risk if OFCCP is evaluating your tests – seek counsel from an expert you trust!

Joyce Morgan, Morgan Consulting Services, LLC

July 2017

As well all know, Federal contractors must conduct, annually, a review of compensation to (according to 4l CFR 2.10(a)(2)) evaluate the impact on women and minorities. This is part of the process of developing an AAP. And, as further evidence of this need, is 41 CFR 60-2.17(a)(3) which indicates this assessment is an AAP ingredient - as part of the process of identifying problem areas. The 2.17 citation actually indicates “to determine whether there are gender-, race-, or ethnicity-based disparities”. We tend to think that “disparities” are bad, in that they must be a problem and could be discriminatory. Wikipedia defines disparity in several ways – including, the condition or fact of being unequal, or discrepancy; lack of similarity; and even difference in some respect. Using the terms interchangeably may be acceptable. However, OFCCP considers this term as a possible discrimination scenario and therefore typically will request follow-up information to “prove” it is discriminatory. Most of the time the “disparities” are non-discriminatory. I tend to characterize the differences in pay as just that – differences. And, I further indicate, in the AAP, that compensation has been reviewed and any differences in pay have been determined to be non-discriminatory. It is my experience that OFCCP reads the AAPs and will obviously see this information. This is all about changing the mindset from “potential discrimination” to simply pay differences that can be explained with legitimate factors.

So, whether or not the Trump administration makes compensation a priority, it will remain an annual requirement and therefore should continue to be evaluated with all pay differences evaluated. Disparities, or those not explained by legitimate factors, should be examined further and corrections made, as appropriate.

Joyce Morgan, Morgan Consulting Services, LLC