The notice adds that, while contractors may begin using the 2006-2010 EEO Tab immediately, it must be used for all AAP development beginning January 1, 2014.  The OFCCP notice follows in its entirety.

U.S. Department of Labor

Office of Federal Contract Compliance Programs

200 Constitution Avenue, N.W.

Washington, D.C. 20210

Notice for Federal Contractors on Use of the 2006-2010 Census EEO Tabulation in the Development of Affirmative Action Programs (AAPs)

This Office of Federal Contract Compliance Programs (OFCCP) notice informs covered federal contractors of the date by which they must begin using the 2006-2010 EEO Tabulation (2010 EEO Tab) to develop their written affirmative action programs (AAPs).  On November 29, 2012, the United States Census Bureau released the 2010 EEO Tab to the public.  This EEO Tab replaces the Census 200 Special EEO File that OFCCP and covered federal contractors began using in January 2005.

OFCCP regulations require covered federal supply and service contractors to prepare and maintain AAPs designed to ensure equal employment opportunity.  One key requirement of an AAP is the determination of the availability of qualified minorities and women for the contractor’s job openings. Availability determinations are used to ‘establish benchmark[s] against which the demographic composition of the contractor’s incumbent workforce can be compared in order to determine whether barriers to equal employment opportunity may exist within particular job groups.” 41CFR 60-2.14(a).

To determine availability estimates, OFCCP requires contractors to “use the most current and discrete statistical information available, “which includes “census data, data from local job service offices, and data from colleges or other training institutions.” 41CFR 60-2.14(d). To assist contractors in this task, and because OFCCP uses Census Bureau data to assess contractors’ compliance with its regulations, OFCCP co-sponsored the development of the 2010 EEO Tabulation, as part of a consortium of federal agencies. 1

This data file, containing information on 488 occupations, is similar to the Special EEO File created following the 2000 decennial census.

OFCCP reached out to contractors and others to obtain their views on a range of issues related to transitioning to the new EEO Tab.  By hosting two nationwide Web chats, OFCCP recognized that some contractors have already prepared their AAPs for 2013using the earlier data.  OFCCP further recognized that, for many contractors, converting their IT systems and availability calculations to the new data will take time due to changes in the coding and categorization of data in the 2010 EEO Tab. Therefore, OFCCP will permit contractors to continue to use the Census 2000 Special EEO File in the development of all AAPs commencing in 2013.

Contractors must begin using the 2010 EEO Tab to develop all AAPs that commence on or after January 1, 2014.  OFCCP will, likewise, begin using the 2010 EEO Tab to evaluate the reasonableness of all AAPs commencing on or after January 1, 2014.  Contractors may, however, begin to use the 2010  EEO  Tab in the development of their AAPs immediately, if they wish to do so.

The transition period provided for in this notice is much like the twelve month time frame that was provided for contractors to transition to the Census 2000 Special EEO File in 2005.  Consequently, OFCCP believes that allowing contractors to defer the use of the 2010 EEO Tab until the development of AAPs commencing on or after January 1, 2014, will facilitate a smooth transition to the 2010 EEO Tab.

The 2006-2010 EEO Tabulation is available on the Census Bureau’s Web site at http://www.census.gov/people/eeotabulation/data/eeotables20062010.html

1 The consortium of federal agencies consists of OFCCP, the Department of Justice, the Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM) 1

EEOC’s press release is provided below in its entirety.

Equal Employment Opportunity Commission

PRESS RELEASE
5-15-13

EEOC Issues Revised Publications on the Employment Rights of People with Specific Disabilities

WASHINGTON –The U.S. Equal Employment Opportunity Commission (EEOC) today issued four revised documents on protection against disability discrimination, pursuant to the goal of the agency’s Strategic Plan to provide up-to-date guidance on the requirements of antidiscrimination laws.

The documents address how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. These documents are available on the agency’s website at “Disability Discrimination, The Question and Answer Series,” http://www.eeoc.gov/laws/types/disability.cfm.

“Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability,” said EEOC Chair Jacqueline A. Berrien. “Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

In plain, easy-to-understand language, the revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.

In its May 7, 2013 decision, the Court concluded that the NLRB’s posting requirement violated Section 8 of the NLRA because it made an employer’s failure to post the NLRB notice an unfair labor practice and because it treated failure to post as evidence of improper motive on the part of the employer.  Among other things, the Court ruling states that the NLRA (particularly Section 6) does not authorize the NLRB “to impose on an employer a freestanding obligation to educate its employees on the fine points of labor relations law.”  The Court’s decision lays out a good discussion of First Amendment rights for those who are interested in following Constitutional law.

As of May 9, 2013, the NLRB has yet to respond to this latest development in its quest to require employers to post pro-union notifications in their workplaces.

OFCCP News Release:  [05/01/2013]

Contact Name:  Diana Patterson or Juan Rodriquez

Email:  Petterson.Diana@dol.gov or Rodriquez/Juan@dol.gov

Phone Number:  (972) 850-4710 or x4709

Release Number:  13-0565-DAL

Bertucci Contracting Settles Discrimination Case with U.S. Labor Department

14 minority job applicants in Jefferson, LA, to receive back pay, job offers

JEFFERSON, La. — Bertucci Contracting Co. LLC, a federal construction contractor, has settled allegations of hiring discrimination against minority job applicants at its Jefferson facility.

Investigators with the Labor Department’s Office of Federal Contract Compliance Programs determined that the company’s hiring process violated Executive Order 11246 by creating a disparate impact on African-American, Hispanic, Asian and Native American job seekers. As a result, 14 qualified minority applicants were denied the opportunity to fairly compete for positions as laborers and deckhands between 2009 and 2011.

“The people of the Gulf Coast have shown tremendous resilience in the aftermath of Hurricane Katrina, the BP oil spill and the Great Recession,” said OFCCP Director Patricia A. Shiu. “Our job — and the job of taxpayer-funded construction contractors like Bertucci — is to make sure the doors of opportunity are open for all workers who want to be a part of rebuilding and fortifying their communities. This agreement underscores that commitment by facilitating success for the workers, the company and the government agency involved.”

Under the terms of the conciliation agreement, Bertucci will pay $70,000 in back wages and interest to the 14 affected workers and extend at least six offers of employment — with retroactive seniority — as positions become available. Furthermore, the company will revise its selection process to provide better training for hiring managers, annually review supervisors’ adherence to employment policies and affirmative action obligations, and improve its recruitment efforts in order to avoid future violations.

Bertucci provides a variety of flood control and coastal restoration services, including environmental dredging and disposal, stone placement in vulnerable waterways, and levee construction and armament. During the two-year period reviewed by OFCCP investigators, Bertucci held more than $80 million in government contracts with the U.S. Army.

In addition to Executive Order 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. These three laws require those who do business with the federal government, both contractors and subcontractors, to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. For general information, call OFCCP’s toll-free helpline at 800-397-6251 or visit http://www.dol.gov/ofccp/.

The complete EEOC Press Release follows:

EEOC PRESS RELEASE
April 30, 2013

Presrite Corporation to Pay $700,000 and Offer 40 Jobs to Settle EEOC Class Action Lawsuit

Manufacturing Company Refused to Hire Females, Federal Agency Says

CLEVELAND – Presrite Corporation, a manufacturing company headquartered in Cleveland that makes gears and other industrial parts, will pay $700,000, offer jobs to no fewer than 40 women, and commit to other injunctive relief to settle a systemic class action lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC’s lawsuit charged widespread discrimination against women who applied to work at one or more of Presrite’s three plants in Cleveland and Ashtabula County. According to the EEOC, Presrite – a federal contractor – consistently passed over female applicants in favor of less-qualified males for entry-level positions at all three plants. The EEOC also cited evidence that women who were hired for such positions were harassed. The agency pointed to testimony from a former Presrite employee who testified that her male-coworkers told her women should not be working there; called her a “dumb b—-h”; drew degrading pictures of her; and suggested that she open the top of her work uniform to pose for a photograph.

The EEOC also charged the company with failing to keep applications and other employee data in violation of federal law. The EEOC alleged that Presrite failed to produce more than a thousand employment applications for persons the company hired and failed to maintain accurate or complete data about applicants. As a result, the EEOC said, it was unable to identify by name all of the female applicants who were unlawfully denied hire.

Discriminating against applicants and employees based on sex violates Title VII of the Civil Rights Act of 1964. Further, Title VII requires employers to make and preserve employment records relevant to determining whether the employer has engaged in unlawful practices, including hiring discrimination. The EEOC filed suit in 2011 (EEOC v. Presrite Corporation, Case No. 1:11-cv-00260) in U.S. District Court for the Northern District of Ohio after first attempting to reach a pre-litigation settlement through its conciliation process.

On April 24, Judge Patricia A. Gaughan signed a publicly filed consent decree resolving the case. Under the terms of the decree, Presrite will pay $700,000 in compensatory damages to establish a class fund for women who sought certain positions at Presrite and were denied hire. Over the course of the next three years, Presrite will also offer jobs to no fewer than 40 women identified by the EEOC during the claims process. The decree compels Presrite to give those females priority consideration and to offer them jobs before any current applicants.

The decree also requires Presrite to implement a number of measures designed to prevent future discrimination such as periodic reports to EEOC disclosing the number of females and males who applied as compared to those who were hired; mandatory training; and compulsory retention of applicant and employment records, including creating and producing electronic data. The decree includes an injunction prohibiting Presrite from discriminating against women in the recruiting and hiring process and compelling the company to make all good-faith, reasonably necessary efforts to find female candidates to fill vacancies in laborer or operative positions.

“We are pleased that we were able to reach an agreement with this defendant,” said EEOC General Counsel David Lopez. “Moving forward, qualified female applicants will be judged by their talents and skill and not simply passed over because of their gender and women who were wrongfully denied positions will be compensated.”

EEOC Regional Attorney Debra Lawrence said, “The EEOC continues to pursue class action litigation to obtain relief for victims of discrimination. As demonstrated in this case, the EEOC is committed to enforcing Title VII violations in all aspects of employment – particularly where employers refuse to hire women for jobs that or have been, or are perceived to have been, traditionally filled by men. Here, the consent decree not only includes substantive monetary relief, but also compels the employer to hire a significant number of women. Such a result not only compensates victims of discrimination, but also serves the public’s interest in developing and maintaining a diversified work force.”

According to the company’s website, Presrite maintains more than 500,000 square feet of manufacturing space and produces forged parts for a broad range of industries including the truck, automotive, aerospace, railroad and agricultural industries. The company, headquartered in Cleveland, operates two plants in Cleveland and another plant in Jefferson, Ohio.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

“Formica Settles Allegations of Hiring Discrimination at Cincinnati Plant

“Federal contractor Formica Corp. has reached an agreement with the Office of Federal Contract Compliance Programs to settle findings of hiring discrimination. Under the terms of the conciliation agreement, the company will pay more than $290,000 in back wages, interest and benefits to 400 qualified African Americans who applied for production worker positions at its Cincinnati manufacturing plant and hire 20 of those applicants as production worker positions become open. OFCCP investigators determined that Formica failed to ensure that qualified job applicants received equal consideration for employment without regard to race as required by Executive Order 11246.”

OFCCP News Release: [04/25/2013]
Contact Name: Deanne Amaden or Jose A. Carnevali
Phone Number: (415) 625-2630 or x2631
Email: Amaden.Deanne@dol.gov or Carnevali.Jose@dol.gov
Release Number: 13-0706-SAN

Goodwill Industries of Southern California settles sex discrimination case with US Department of Labor

Agreement includes more than $130,000 in back wages for 200 male applicants and 18 job offers

LOS ANGELES — The U.S. Department of Labor today announced that Goodwill Industries of Southern California has agreed to settle allegations of systemic discrimination stemming from the federal contractor’s selection practices. Investigators with the department’s Office of Federal Contract Compliance Programs determined that Goodwill’s hiring process favored female applicants for entry-level positions as attendants at local donation centers, in part because of perceptions that women have better customer service skills. The investigation concluded that 200 qualified men were denied the opportunity to advance to the offer stage.

“Sex discrimination in the workplace can take many forms, and we are committed to fighting all of them,” said OFCCP Director Patricia A. Shiu. “That means getting away from outdated notions about what constitutes ‘men’s work’ and what constitutes ‘women’s work.’ Throughout the past century, both the Labor Department and Goodwill have shared a common purpose of serving the disadvantaged and making workers self-sufficient. This settlement builds on that proud tradition by giving every worker a fair shot at a good job.”

OFCCP’s Los Angeles District Office conducted the investigation. Under the terms of the conciliation agreement, Goodwill will pay $130,970 in back wages to the affected individuals and as openings occur will make 18 job offers to qualified men who were not previously offered positions. Goodwill also has agreed to undertake extensive self-monitoring measures and training to ensure that all hiring practices fully comply with Executive Order 11246, the federal law that prohibits federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex or national origin. Covered government contractors must take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.

Goodwill Industries of Southern California operates dozens of retail stores and donation centers in parts of Los Angeles, Riverside and San Bernardino counties. Goodwill has more than $2.5 million in contracts with several branches of the U.S. military and federal government agencies in California, and participates in a contract with the U.S. General Services Administration to provide custodial, facilities, grounds maintenance and other services at federal sites as part of its employment training and assistance programs. Proceeds from sales at Goodwill retail stores help support its employment and training services.

In addition to Executive Order 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. These three laws require those who do business with the federal government, both contractors and subcontractors, to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. For general information, call OFCCP’s toll-free helpline at 800-397-6251 or visit http://www.dol.gov/ofccp/.

As in its previous jurisdictional struggle with Florida Hospital of Orlando, the UPMC case began when OFCCP scheduled compliance reviews for the three hospitals.  The hospitals declined to comply with audit requests because language in the OPM/UPMC Health Plan prime contract specifically stated a subcontract to provide medical services is not a government subcontract.  U.S. District Court Judge Paul L. Friedman (District of Columbia) sided with OFCCP, ruling (among other things) that the hospitals’ services were essential to the prime contract and that OPM’s FEHBP contract provision is unenforceable because it violates federal law (contained in the meaning of Executive Order 11246 and the regulations that implement it).

While the Florida Hospital case has yet to be resolved, it appears that hospitals who serve federal employees or retirees in an HMO capacity are now considered to be federal contractors or subcontractors and are subject to all that goes along with a direct contract signed with the U.S. Government, as enforced by the OFCCP. 

One answer provided during the Q&A period at the end of the webinar is not mentioned in the slides.  One participant asked how secure or protected the [compensation] data is that OFCCP holds.  The OFCCP respondent answered that Freedom of Information (FOIA) requests for data/information are handled depending on the status of the case in question.  FOIA requests are denied when they request data/information in cases that are still open/pending.  For FOIA requests for data/information in closed cases, OFCCP will notify the contractor involved, giving the contractor the opportunity to say why the requested data/information should not be made available.  The contractor’s response will be considered before a final decision is made as to whether to release the data/information requested.  The OFCCP respondent added that “numeric identifiers can be used in place of employee names [in the data/information],” which would protect employee privacy.  What was not mentioned in this answer was that crosswalk matches between numeric identifiers and employee names must also be provided by contractors and subcontractors who use numeric identifiers.  Crosswalk matches are also subject to FOIA release.