In presentations I have made around the country, I have occasionally raised the question of whether the practice of permitting negotiation of starting salaries is susceptible to challenge under a disparate impact theory. This article explores that question further. Disparate impact occurs when a practice that is fair in form -- because it applies equally to all employees or applicants -- has a disproportionally negat...

The preservation of institutional knowledge can mean the difference between a finding of discrimination and a finding of no violation in an OFCCP audit. Institutional knowledge can tell you how and why a particular situation exists. For example, suppose Jennifer, a widget designer, is among the last hires in a down market 2010. The entire widget designer staff is shortly thereafter subject to a pay freeze and the company i...

Both the EEOC and the OFCCP have published updated guidance on the use of arrest and conviction records in the hiring process. On January 29, 2013, the OFCCP issued a policy guidance entitled, "Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin." This policy guidance followed and essentially adopted the guidance issued by the Equal Employment Opport...

Federal Contractors are required to take affirmative action to employ and advance in employment individuals with disabilities and protected veterans. Effective outreach, recruitment and retention are essential to this effort. As OFCCP has stated repeatedly, it views the successful placement of these targeted groups as the most telling indicator of whether a Federal Contractor has complied with the requirement and made suffi...

Voluntary compliance through negotiated conciliation agreements is the most common and most preferred way to resolve violations under the laws enforced by OFCCP. When identified violations cannot be resolved through conciliation, the next step in the enforcement process is a referral to the Department of Labor's Office of the Solicitor (SOL) with a recommendation for enforcement. This article explains how that process works...

Now that the election results are in, it appears self evident that the path outlined in various regulatory and sub-regulatory proposals will continue to guide the enforcement efforts of the OFCCP. Some of the uncertainty of the pre-election period has been resolved so it is time to think seriously about what your company will need to do to best position itself to comply with whatever changes may be ultimately implemented. M...

For years the OFCCP has placed a heavy emphasis on the challenging arena of systemic compensation discrimination. OFCCP analyzes compensation discrimination under the same theories it uses in the analysis of hiring discrimination. This would work better if compensation discrimination, like hiring, grew out a set of decisions made in a discreet window of time for all potential parties. For example, a hiring case is usually...

This year's National Industry Liaison Group (NILG) Conference, held August 27-31, 2012 in Waikoloa, Hawaii, celebrated the 30th anniversary of the unique partnership between the NILG and the Office of Federal Contract Compliance Programs (OFCCP). This partnership has been extended over the years to include the Equal Employment Opportunity Commission (EEOC) as regular participants. The conference this year may be best rememb...

What is a test? While we commonly think of tests as either a series of questions to be answered and scored or a set of actions to be performed and scored, from the EEO perspective, the definition of test is much broader. Any part of a selection procedure where candidates are considered and some are chosen, while others are not, is subject to the Uniform Guidelines on Employee Selection Procedures (UGESP) (41 CFR 60-3) and,...

The concept of enterprise-wide enforcement has been around in one form or another for years at OFCCP. In the late nineties it took the form of "global agreements," in the early 2000's the concept emerged in initiatives to "connect the dots" and in the present administration it has surfaced under the term "enterprise-wide" enforcement. In addition to resolutions specifically tagged as part of these initiatives, there have al...