The document summarizes presentations from a 2012 ILG conference. It discusses themes from the conference, including that not much is new regarding OFCCP initiatives, OFCCP is in a holding pattern until after the 2012 election, and OFCCP is "screwed up" and not getting a return on investment from increased compliance officers. It also provides brief summaries of four conference presentations on workforce metrics, new census data, OFCCP's new scheduling letter, and recent OFCCP developments. The document concludes with recommendations for federal contractors to prepare for potential OFCCP audits.

1. 2012 National ILG Recap
Themes & Presentation Summaries

2. Themes
1. Not much is new
2. OFCCP is in a holding pattern
3. OFCCP is “Screwed up”
Presentations Summaries
1. Nita Beecher, Mercer – Workforce Metrics in the Global
Environment: Best Practices for Employer
2. Beth Ronnenburg, Berkshire Associates Inc.- New
Census Data and AA Compliance-Understanding the
Impact
3. David Goldstein, Littler – OFCCP’s New Scheduling
Letter: Anticipating the New Desk Audit Submission
4. John Fox – Recent Significant Developments at OFCCP

3. Theme #1 - What is new?
• Changes to the Corporate Scheduling
Announcement Letter (CSAL)
▫ Rather than a letter, in 2013 the OFCCP will
provide a list on the internet.
 Eliminates their need to follow up with contractors,
as 80% of the time those who requested letter didn’t
receive one.
• Possibly could issue CSAL this year, but would
be via the normal process.

4. Theme #2 - OFCCP in holding pattern
• April 2011 - Proposed revisions to the veterans regulations
• August 2011 – Advanced notice of proposed rulemaking released
regarding possible changes to OFCCP's guidance regarding
compensation
• September 2011 - Proposed Scheduling Letter changes and the
itemized listing that accompanies the scheduling letter
• December 2011 - Proposed revisions to the regulations regarding
persons with disabilities
• The proposed changes to the federal contract compliance manual
that have been in the works for several years (and that were
reportedly complete as of the July 2011 NILG conference in New
Orleans)
• Changes to the regulations regarding construction contractors (no
formal OFCCP proposal yet)
• Changes to OFCCP's regulations on sex discrimination (no formal
OFCCP proposal yet)

5. Predictions
• Most agreed that no initiatives are likely to move forward until after the election.
• Veterans regulations may be released prior to the November presidential
election or get out the door in December
• John Fox heard Veterans regulations were on Debra Carr’s desk (not even at OMB) so
they can’t get published.
• Some initiatives will not move forward at all.
• John Fox predictions
• If Romney wins, all regulations stop, except the vets may be out the door in December.
Burdensome comp requests will end and you will see more transparency.
• If Obama elected and Republicans take Senate, the OFCCP will be moribund (in a dying
state)
• If Obama elected and Democrats keep the Senate, programs will slowly get done, but
with numerous compromises and changes.
• David Cohen predictions if Obama wins…
• Some pay cases will be deferred to Dept of Justice
• Increased focus on pay
• OFCCP will ask companies if they did a proactive comp analysis
• Pooled regression analysis is going to happen with SSEG as a variable

6. Theme #3 - OFCCP is Screwed up
• We/They mentality more than ever
• Not getting the return on their investment of
time or resources
▫ More compliance officers - increased from 585 to
798 FTEs – but fewer monetary returns
▫ Proposing regulations that don’t necessarily
advance Equal Opportunity, but rather give reason
for recordkeeping violations – burying themselves
in paperwork
• Compensation review incurred major setback

7. OFCCP Statistics by Administration
• Bush Administration (2004-2008) 85-93% of audits were
closed without notice of violation
– Charles James (from Bush administration) had best record in
monetary recoveries doing fewer audits and having fewer
compliance officers.
• Obama Administration (2009-2011) 72-82% of audits were
closed without notice of violation
• Essentially 1 in 4 ends in a conciliation agreement, resulting in a
negative correlation between CAs and financial remedies relative
to the Bush administration.
– Differences in enforcement amongst regions (See Appendix):
• SWARM – 5% CAs
• Northeast and Mid-Atlantic– 34% CAs
• Midwest – 31% CAs

8. OFCCP Statistics by Administration
• The type of conciliation agreements/consent
decree has flip-flopped between administrations:
▫ 2008 CAs – 60% recordkeeping, 26% outreach
▫ 2011 CAs – 26% recordkeeping, 58% outreach

9. Show me the money – ROI?
• Bread and butter of monetary recoveries is
disparate treatment in entry level hiring (95% of
findings).
• Section 4212/503 Enforcement – Between 2007
– 2011, there were 22,000 complaints of
discrimination against vets and individuals with
disabilities, of which only 3 claims were found to
be valid. Don’t produce backpay.

10. Show me the money – ROI?
• OFCCP is desperate for a comp settlement – they have spent a
lot of money on increased review, but haven’t recovered the
money.
• Approximately 1/3 of all CAs last year involved compensation
• No pattern of industry or job type
• 27 comp cases in 2011
• 1 was Astra Zeneca for $250,000
• 26 of 27 cases were cohort analysis payouts
– Most settlements were between 1-3 victims
– 2 appeared to collect remedies for men (contrary to the government’s
goal of closing the gender pay gap)
– 1 did not list a protected class, but just said person x made less than
others.
– Cohorts are an audit nuisance. If the OFCCP says you should make an
adjustment, you can say “No. Show us the intent to discriminate.”
Never seen a cohort case go to the solicitor’s office

11. Compensation Review Setback
• The NAS National Research Center was asked to review OFCCP’s
method for measuring and collecting compensation data.
• The National Academy of Sciences' National Research Council
(NRC) is suggesting OFCCP (and other federal agencies) should
limit their collection of compensation data until the government
knows how this data will be kept safe and how it will be effectively
used.
• Forget paragraph 12 of new scheduling letter. This NRC report may
act as a significant barrier to the implementation of any new
compensation-related initiative. MAJOR SETBACK of estimated 4-6
years!!!
• Basic findings of the NAS NRC is that the OFCCP needs to pull back,
develop better plan, pilot the plan, test it using an independent
contractor, find ways to better protect confidentiality of data and
develop legislation to increase the ability of the agency to protect
confidential data.

12. Suggested action
• Federal contractors should get more involved in
helping with the regulations

13. ILG Presentation Reviews
Nita Beecher, Mercer
•Workforce Metrics in the Global Environment: Best Practices for Employers
Beth Ronnenburg, Berkshire Associates Inc.
•New Census Data and AA Compliance-Understanding the Impact
David Goldstein, Littler
•OFCCP’s New Scheduling Letter: Anticipating the New Desk Audit Submission
John Fox
•Recent Significant Developments at OFCCP

14. WORKFORCE METRICS IN THE GLOBAL
ENVIRONMENT:
Best Practices for Employers
Nita Beecher and Liz MacGillivray
Thursday, August 30, 2012
2012 ILG National Conference
Waikoloa, Hawaii

15. Global Workforce Metrics Notes
• Global companies typically prepare a Global Cultural view (e.g.
respecting differences), not necessarily requiring the same EEO
policy.
▫ In Asia, diversity is a new concept, not always culturally understood.
• Tracking women is the #1 item tracked globally. Next would be
disability
• In many countries (Brazil, Turkey, Vietnam, Cambodia, Malaysia,
Ethiopia, Spain, Jordan, Thailand), you have to hire a certain % of
individuals with disabilities based on the number of employees you
have or you can be fined.
• Bullying (aka: being a jerk) can violate law in other countries (e.g.
Belgium, France, Brazil)
• If you are going to measure diversity, be prepared to do something if
you find an issue

16. New Census Data and AA
Compliance
Understanding the
Impact
Beth A. Ronnenburg, SPHR
August 30, 2012

17. EEO 2006-2010 ACS Tabulation
• Formerly known as the EEO Special File
• Provides ethnicity, race and sex civilian
workforce data mapped to occupational data
• Used to create external availability statistics
for affirmative action planning

18. EEO 2006-2010 ACS Tabulation
• Includes data based on geography, industry,
age, educational attainment, median earnings
and citizenship
• Sponsored by OFCCP, EEOC, DOJ & OPM
• Data will be disseminated through American
FactFinder
▫ Most contractors will rely on their AAP vendor
to format the data for them

19. Current Status
• Scheduled to be released end of Nov or
beginning of Dec, 2012
• OFCCP will then issue a directive indicating
when contractors will need to begin using the
data
– The 2000 EEO Special File was released in
December 2003 & OFCCP required
contractors to use the data for plans on or after
January 1, 2005

20. Census Occupation Codes
• Similar to 2000
• 488 codes in the latest file (6/18/12)
• Four digits versus three in 2000 data
▫ In most cases the only change is that a zero
is added to the end of the code
 012 Financial Managers is now 0120 Financial
Managers
• Approximately 80% are an exact match to
2000
▫ Other 20% are new codes, codes that were
split and codes that were combined

21. What can you do to prepare?
• Contractors who store the census code in
their HRIS should ensure that field size can
accommodate the change
• Review the crosswalk, but don’t rely solely
on the document
▫ There are 28 2010 census codes that are NOT
directly mapped to a 2000 Census code.

22. Disability
• Originally told it could not be included
because:
▫ Same questions were not asked each time
▫ Research was not conducted on 6 questions
that might be used to identify those who had a
“disability”
• Information on “disability” will be available
from a series of tables created by DOL
(ODEP & OFCCP) and will be released at the
same time

23. 2010 Census
• Population increased 9.7% (27.3M)
▫ More than ½ of the growth was due to increase in
Hispanic population (15.2M)
• Regional growth varied
▫ South/14.3%
▫ West/13.8%
▫ Midwest/3.9%
▫ Northeast/3.2%

24. Population – Gender (ages 20-69)

25. 2010 Population - Race

26. 2010 Population - Race
• Minority population grew 28.8% while White
alone, Not Hispanic grew only 1.2%
• Hispanic and Asian population have the
highest growth rates (~ 43%)
• The Black population experienced the 2nd
smallest growth rate (12%)

27. Regional Minority Population

28. Regional Minority Population
• Texas joined California, DC, Hawaii and New
Mexico in having a “majority-minority”
population
• Minority population grew in all 50 states
▫ Nevada increased the most (78%)
• 348 counties (11%) now have a majority-
minority population

29. OFCCP’s New Scheduling Letter:
Anticipating the New Desk Audit
Submission

30. 30
Recommendation #1 - Summaries
• For the annual AAP, continue to prepare summaries of applicant, hire,
promotion and termination data by minority/nonminority groups.
• The regulations prescribing the required contents of written AAPs have
not changed in Part 60-2, and they speak only in terms of females and
all minorities.
• Section 60-2.17: “must perform in-depth analyses of its total
employment process” and “must evaluate . . . Selection, recruitment,
referral and other procedures to determine whether they result in
disparities in the employment or advancement of minorities or women.”
• Itemized Listing, footnote 6: “The term ‘race/ethnicity’ as used
throughout the Itemized Listing includes these racial and ethnic groups:
African-American/Black, Asian/Pacific Islander, Hispanic, American
Indian/Alaskan Native, and White.”

31. 31
Recommendation #2 - IRAs
• Under the protection of attorney-client privilege, prepare job
group impact ratio analyses:
▫ Minority versus White (the way the summaries appear in the AAP)
▫ Each race versus White
▫ Each race versus its non-race (but excluding 2 or more races)
 Hispanics versus non-Hispanics (including Whites)
 Blacks versus non-Blacks (including Whites), etc.
 Will tell you which is the most-favored race
▫ Every other race versus most favored race
• Prepare impact ratio analyses by title
▫ If a job title has fewer than 5 selections, not critical to run title by title
analyses

32. 32
Recommendation #2 (cont’d)
• Under the protection of attorney-client privilege, if a
job group or job title shows a statistically significant
impact, look for simplest explanations first
▫ control for job requisition or job opening
▫ don’t lose sight of statistical significance—the 1/20 or 5%
threshold
 may be a function mostly of running so many analyses
 the more you run, the more likely one or more will “pop”
 difference between 2 standard deviations and 3+ standard
deviations

33. 33
Recommendation #3 –
Promos and Terms (cont’d)
• Pools
▫ Promotions
 only competitive (applied for) promotions will have specific pools
 possible default pool for noncompetitive promotions, beginning of the
year population in the job group or job title, with or without hires (?)
▫ Terminations
 RIFs often will have specific pools
 other involuntary (for cause) termination likely will not
 default pool could be beginning of AAP year snapshot of job
group/title, with or without hires (?)

34. 34
Recommendation #4 –
Retrievability
• Do you currently track this data for contractors, per-
diems, day-laborers, and temporary employees? If not,
do so now.
• Ensure that HRIS, payroll, performance records,
executive compensation, stock awards, bonuses,
incentives – all the various tracking systems can “talk to
each other” so you can pull the “other” compensation
data
• Implement the means to capture 12 months of the non-
base salary data going back to February 1 of the prior
year

35. 35
Recommendation #5 –
Comp Data and Policies
• Assess what other data you maintain reliably, consistently, and how
retrievable it is
▫ Education
▫ Prior work history
▫ Company work history
▫ Company compensation history
▫ Performance ratings
▫ Merit Increases
▫ Initial Starting Salary
• Whose pay is set pursuant to collective bargaining?
• Assess what policies and compensation documentation exists
▫ Up to date? Accurate?
▫ Reflective of current practices?

36. 36
Recommendation #6 –
Comp Analyses
• For non-audits (routine AAPs), continue to run these
simply because despite all the activity by OFCCP on
comp, most compensation audits wind up focusing on
specific job titles and the company’s ability to explain
pay variations within the job title
• Under the protection of attorney-client privilege (and if
you have the budget)
▫ Self-evaluate the variables in a regression analysis
• How should you submit data at the desk audit?
• What data should you submit at the desk audit?

37. 37
Recommendation #7 - CBAs
• Ensure that company labor relations officers
know about your need to produce this
information in OFCCP audits
• Develop a mechanism to keep track of all “policy
statements, employee notices or handbooks”
that “implement, explain or elaborate” on the
CBA.

38. 38
Recommendation #8 – Leave Policies
• Identify relevant leave policies
• Who “owns” the handbook and its updates? Ensure that the
“owner” of the process and/or the updates on your company
intranet know about your need for this information in an OFCCP
audit
• If you maintain your policies on your company Intranet, how easy or
hard would it be to pdf the relevant pages as part of an audit? If
time consuming, make a pdf of them, now.
• Are they current?
• Are they accurate?
• Keep in mind that because AAPs go one year back (and in an audit
OFCCP is entitled to 2 years back), you need to keep track of policies
that were in effect at the time of the data capture and personnel
actions

39. 39
Recommendation #9 - VETS Reports
VETS forms for the last two years:
Copies / Viewing of Filings
2011 Filing Cycle 2010 Filing Cycle or Earlier
• Contractors will have the ability to • Copies of previously submitted reports
view the reports that they submitted for the 2010 filing cycle or earlier are
and will not be able to view those of not available in the VETS100 online
other contractors. Copies may be reporting application. They can only
printed using the VETS100 online be obtained through a Freedom of
reporting application by the end user Information Act (FOIA) request.
only. Please go to the US DOL's FOIA
• Hard copies for contractors other than homepage for instructions on how to
the submitting contractor can be do this at: www.dol.gov/dol/foia/.
obtained only through a Freedom of • Submit your FOIA requests, now.
Information Act (FOIA) request.
Please go to the US DOL's FOIA
homepage for instructions on how to
do this at: www.dol.gov/dol/foia/.

40. 40
Recommendation #10 –
Track Accommodations
• Who “owns” the accommodation process, now?
• Limited to ADA accommodations, or broader?
• Note: Itemized Listing 13 asks only for
accommodations granted; it does not ask for all
accommodations requested
• Ensure that the accommodation process owners
know that “records of accommodations granted” will
be needed for a desk audit submission

41. Recent Significant Developments
at OFCCP
August 30, 2012
John C. Fox, Esq.
Fox, Wang & Morgan P.C.
160 W Santa Clara Street
Suite 700
San Jose, CA 95113

42. Battle Front 1: THE BIG PICTURE
42
1. It remains all (and almost ONLY) about failure to hire Entry-level,
unskilled Production Labor (95% of OFCCP’s historic back pay
collections)
2. Compensation audits are very expensive to defend these days, but are
not producing much back pay.
3. OFCCP’s Construction Program has found no unlawful discrimination
in 20 years. Program is in shambles, and suddenly becoming
unnecessarily very burdensome in audits.
4. OFCCP’s Section 503 program has found very little unlawful
discrimination in the 20 years since the ADA became law. (OFCCP’s
503 program used to be robust, but is now in shambles. EEOC is now
annually collecting hundreds of millions of back-pay $ in ADA
settlements/judgments/verdicts. Should OFCCP’s controversial
proposed regulations go to final, compliance costs will increase by
hundreds of thousands of dollars/yr for most federal contractors.)

43. Battle Front 1: THE BIG PICTURE (Cont.)
5. OFCCP’s VEVRAA program lacks unlawful
discrimination authority, has produced very little back-
pay over the decades as a result, or jobs for veterans,
and is in disarray despite the strong desire of
contractors to hire veterans.
6. Most of us are slogging through terribly lengthy audits
which don’t matter much, but are increasingly
expensive and frustrating to defend.
7. Vendor profits are up; contractor satisfaction is down;
the high pace of OFCCP turnover of its personnel and
the cost-benefit ratio of OFCCP continue to be lively
subjects of discussion.

44. Battle Front 3: Regulatory Revisions: Full Stop
April 2012 Review Of OFCCP’s July 2011 “To-Do” List
1.Publish Advance Notice of Proposed Rulemaking (ANPRM) re
“Compensation Data Collection Tool”: by July 2011 (Done: August 10,
2011)
2.Publish a Notice of Proposed Rulemaking (NPRM) re Section 503: by
August 2011 (Done: December 9, 2011)
● This proposal “ripped the fabric” of trust, in my observation,
between OFCCP and the contractor community which perceived
this proposal to cover-up hundreds of millions of dollars of costs
and thus tore at OFCCP’s integrity and sense of partnership.
● Note: Applied Economics Strategies, LLC, founded by a former
Bush Administration appointee, issued a report on July 19, 2012
estimating OFCCP’s Section 503 regulation would cost in fact, $5.9
Billion with an annual recurring cost of $2.68 Billion per year.

45. 45
Battle Front 4: Litigation

46. 46
Battle Front 4: Litigation (Cont.)

47. 47
Battle Front 5: Audits
I. OFCCP has issued several new audit instructions (Cont.)
B. Substance changes (Cont.)
9. Contractor outreach to the Disabled and Protected
Veterans communities which satisfied
Clinton/Bush Administrations suddenly no longer
compliant
 So, what is required this month?
▫ OFCCP is not enforcing proposed regulations
▫ Subjective, how deep is your relationship with your newbie
Compliance Officer?

48. 48
Battle Front 5: Audits (Cont.)
III. New Audit Protocols In Chicago (Cont.)
▫ MWRO now finishing the 830 audits (in FY 2012) MWRO
had scheduled on June 3, 2011 (in FY 2011) and which
OFCCP National Office formally pulled back on June 17,
2011
 This action conflicts with OFCCP’s announced
intent to retire each year’s audit list at end of
each Fiscal Year
 Why?
 This is not a legal problem, in my judgment.

49. The Fox OFCCP Report
49
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50. Appendix