DOL Regulations - Live Q&A Session with OFCCP - Static Version
Tuesday, July 12, 1 p.m. EDT
Please note that input received during the course of this web chat is not part of the formal rulemaking process. You can find DOL’s proposed regulations, and submit comments, by visiting www.regulations.gov.
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1:00 Patricia A. Shiu: Good afternoon. My name is Patricia Shiu and I am the Director of the Office of Federal Contract Compliance Programs, also known as OFCCP. It is a pleasure for me to join you for the next hour and respond to your questions about our 2011 semi-annual regulatory agenda. At OFCCP, we are mandated to ensure that workers who are employed by or seek employment with federal contractors and subcontractors are not subjected to discrimination, including harassment, retaliation or termination because of sex, race, color, national origin, religion, disability or status as a protected veteran. Being a federal contractor is a privilege, not a right, and with that privilege comes a legal obligation to comply with affirmative action requirements and anti-discrimination laws.
Currently, we are engaged in several efforts to strengthen and update our regulations, bringing them in line with current law and adjusting to the realities of a modern labor force. Those efforts are articulated in the U.S. Department of Labor's 2011 Semi-Annual Regulatory Agenda, which was published last Thursday. This publication reflects Secretary of Labor Hilda Solis's vision of Good Jobs for Everyone in workplaces that are safe, fair, equitable and free of discrimination.
OFCCP's five entries in the DOL’s new regulatory agenda seek to improve employment opportunities for veterans, for people with disabilities and for women and minorities in the construction trades. We are also moving forward with plans to develop a compensation data tool that will improve our ability to combat pay discrimination. Finally, we will be seeking public comment regarding our proposed revisions to guidelines on sex discrimination.
Your input, comments and feedback are critical to shaping these regulations. For the next hour, I will try to answer as many of your questions as possible. Please note, however, that formal comments for the record must be submitted in writing either by mail or at www.regulations.gov when a proposed rule is open for public comment.
So, let’s get started with your questions!
1:03 Comment From Brian Rousseve: Now that the comment period is over, when do you anticipate the revisions to the veteran regulations will become effective?
1:03 Patricia A. Shiu, OFCCP Director: Thank you for your question. The comment period for Notice of Proposed Rulemaking on Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act closed yesterday and we have begun the process of reviewing and analyzing all of the comments. This process may take several weeks to complete, and will include consideration of suggestions for revision to the NPRM. In the Final Rule we will describe the comments, the issues they raised, and our responses to them. We anticipate publishing a Final Rule in the spring of 2012.
1:04 Comment From pHYLLIS JACKSON: DO WEHAVE AN IDEA ABOUT THE NEW CENSUS DATA'S AVAILABLITY?
1:04 Patricia A. Shiu, OFCCP Director: We are working with census bureau, EEOC and Department of Justice in creating the special tab. It should be available in the next 12 months.
1:05 Comment From Nita Beecher: How different will new compensation proposal be from old EO survey?
1:05 Patricia A. Shiu, OFCCP Director: OFCCP has no plans to reissue the old EO Survey. The tool under development would focus on collection of compensation data. OFCCP’s experience with the EO Survey and public comments in response to the current rulemaking will inform development of the compensation data collection tool.
1:05 Comment From Stephanie R. Thomas: What specific developments in employment law precipitated the need to revisit the guidelines on sex discrimination?
1:05 Patricia A. Shiu, OFCCP Director: The guidance in part 60-20 is more than 30 years old. We need sex discrimination regulations that reflect the current state of the law in this area. Employer policies and practices and the nature and extent of women’s participation in the labor force have also changed significantly since the guidelines were put in place. OFCCP is proposing in this NPRM to create sex discrimination regulations that reflect these changed conditions.
A good example is the guidelines’ provision on pensions. It says that it’s not sex discrimination if contractors provide either equal contributions to employee’s pension funds or provide contributions that result in equal benefits upon retirement. But the Supreme Court has now ruled that it is impermissible to require employees of one sex to make larger contributions than the other in order to receive the same monthly benefits. Therefore the greater cost of providing a pension to members of one sex is not a defense to failing to provide benefits equally to members of both sexes.
1:05 Comment From Nita Beecher: how soon do you expect to issue proposed regulations on Section 503?
1:05 Patricia A. Shiu, OFCCP Director: The Section 503 NPRM is currently under review. Once the OMB review is complete, OFCCP will publish the NPRM for public comment. We anticipate publication of the Section 503 NPRM in the Federal Register sometime in the next month.
1:05 Comment From Cheryl Bressington: How long does it normally take to complete a desk audit?
1:05 Patricia A. Shiu, OFCCP Director: Cheryl, normally, a desk audit should be completed within 40 work hours. The size of the contractor’s workforce and issues identified will be factors that influence the time.
1:07 Comment From William Kerney: When do you expect to update the minority workhour goals in EO 11246 to line up with current census data?
1:07 Patricia A. Shiu, OFCCP Director: OFCCP is reviewing the minority and female construction goals and is considering revisions that will update these affirmative action requirements.
1:07 Comment From Fred: Given the importance placed by DOL and the Obama administration on pay equity issues for women, why is the timeframe for the approval of the new compensation data collection tool extended well into 2012?
1:07 Patricia A. Shiu, OFCCP Director: The Compenstaion Data Collection Tool ANPRM is in the final stages of review and we expect to publish it within the next few weeks.
1:08 Comment From Glen: How many responses have you recieved so far related to NPRM on Section 4212?
1:08 Patricia A. Shiu, OFCCP Director: Approximately 80 comments have been published to regulations.gov as of today. There is a little bit of lag time in publishing the comments to regulations.gov, so several more should post over the next day or so.
1:09 Comment From BCG Institute: What is the latest news on the compensation collection tool?
1:09 Patricia A. Shiu, OFCCP Director: The Compensation Data Collection Tool ANPRM is in the final stages of review and we expect to publish it within the next few weeks.
1:10 Comment From Nita Beecher: Do you anticipate any more personnel changes at the regional level in the next few months?
1:11 Patricia A. Shiu, OFCCP Director: Thank you, Nita, for your question. We are currently recruiting for Regional Director in the Midwest Region and Deputy Regional Directors in the Northeast, mid-Atlantic, Midwest and Dallas regions.
1:11 Comment From Deborah: What is a definition of a non-construction federal contractor? We are a community college and have been told we do not fall under the definition of a federal contractor. Our administration is confused if we do fall under the requirements for affirmative action.
1:11 Patricia A. Shiu, OFCCP Director: A community college with a federal contract of $10,000 or more is generally covered by OFCCP's regulations. If you have any further questions, please visit our website and review our Supply & Service Technical Assistance Guide at http://s.dol.gov/H6
1:12 Comment From Barbara Adkison: Until the compensation data tool is implemented, how are employers or employees supposed to determinate pay discrimination?
1:12 Patricia A. Shiu, OFCCP Director: In response to the proposed rescission people have made us aware of the need to develop new guidance. We are reviewing those comments.
1:13 Comment From Cheryl Bressington: How do you document good faith efforts in trying to recruit diverse individuals?
1:13 Patricia A. Shiu, OFCCP Director: Cheryl, there are a variety of ways to document good faith efforts. For example, copies of job postings, correspondence, and documentation of community outreach with public workforce agencies or training and educational organizations. The most important thing is to ensure that you have complete and accurate documentation (e.g. emails, letters of confirmation, job postings, etc.). OFCCP regulations and technical guides have more detailed information: http://www.dol.gov/ofccp/
1:13 Comment From Tina: Good afternoon, could you tell us when you expect proposed regulations for individuals with disabilities will be released and when will we learn more about this new Pay Discrimination Tool? Thank you
1:13 Comment From Stephanie R. Thomas: What is the status of the compensation data collection tool, and when can we expect to see details about the form and structure of this tool?
1:13 Patricia A. Shiu, OFCCP Director: OFCCP anticipates the Compensation Data ANPRM in the near future.
As for the Section 503 NPRM, it is currently under review. Once the review is complete, OFCCP will publish the NPRM for public comment. We anticipate publication of the Section 503 NPRM in the Federal Register sometime in the next month.
1:14 Comment From Emily Honig: When do you anticipate issuing NPRMs for the compensation data tool, construction contractor affirmative action requirements, and the sex discrimination guidelines?
1:14 Patricia A. Shiu, OFCCP Director:
The compensation data tool is an ANPRM and it should be published within the next few weeks. The NPRMs for construction and sex discrimination are anticipated for publication on the dates listed in the spring regulatory agenda.
1:14 Comment From Nita Beecher: Would OFCCP accept comments to its scheduling letter changes even though the comment period expired yesterday?
1:14 Patricia A. Shiu, OFCCP Director: The comment period for the scheduling letter closed yesterday. You may submit comments but there is no guarantee that they will be considered.
1:14 Comment From Ann: When will the public have some idea of how contractors will gather information about veterans in order to perform the qualitative analysis that has been proposed similar to minorities and women?
1:14 Patricia A. Shiu, OFCCP Director: The section 4212 NPRM provided a description of the types of information contractors can use to set benchmarks and calculate the ratios of protected veteran applicants and hires. We received comments to this proposal and will be considering them toward drafting the final rule.
1:16 Comment From Thermon Donnelly: Will OFCCP present revised policy and procedures regarding construction compliance in the near future?
1:16 Patricia A. Shiu, OFCCP Director: OFCCP is in the process of developing a proposed construction regulation and is planning to publish the proposal in November.
1:16 Comment From Cheryl Bressington: How long will we have to adjust our AA plans to include veterans and the disabled?
1:16 Patricia A. Shiu, OFCCP Director: Cheryl, contractors have to develop affirmative action plans for veterans and the disabled within 120 days of becoming a covered contractor. To the extent that final rules under VEVRAA and Section 503 require revisions to the AAPS, the final rules will provide the dates by which those revisions will have to be made.
1:17 Comment From Tim Emond: Will these questions and answers be available after this chate session?
1:17 DOL Chat Moderator: Yes, these questions and answers will be available after this session ends.
1:18 Comment From Diane Conigliaro: So do we still use the 2000 census information when preparing our current aap?
1:18 Patricia A. Shiu, OFCCP Director: Yes, Diane. Continue to use the 2000 census information until the 2010 is available.
1:19 Comment From Travis: My company has 90 employees at 10 locations, but none of these have more than 50 employees. Can we follow basic AAP guidelines or must we enter a FAAP agreement.
1:19 Patricia A. Shiu, OFCCP Director: Thank you for your question. You are not required to develop a FAAP agreement. The regulations specify that contractors who have employees who work at an establishment with fewer than 50 employees have the following options for covering these employees: 1. In an AAP covering just that establishment 2. In an AAP which covers the personnel functions or 3. In the AAP of the managing official to whom they report.
1:19 Comment From Tina: Have you considered updating the race/ethnicity categories and if so when will you provide that guidance?
1:19 Patricia A. Shiu, OFCCP Director: Tina, OFCCP has issued guidance on the use of race and ethnic categories in affirmative action programs. You can find more specific information here:
1:20 Comment From Tim: Will the scheduling letter be updated to appropriately reflect the forthcoming regulatory changes?
1:20 Patricia A. Shiu, OFCCP Director: The revised scheduling letter was published for comment in May, and the comment period closed July 11th. There were a few comments received. We are reviewing those comments and will make a determination regarding the letter and the itemized listing in the very near future. There are no new regulatory changes that will be reflected in the current revision.
1:20 Comment From Traci: What is the OFCCP's position with regard to extending Rehab Act and VEVRAA compliance obligations for contractors working on ARRA funded projects?
1:20 Patricia A. Shiu, OFCCP Director: The Rehabilitation Act and VEVRAA apply to contractors working on ARRA projects when those contractors satisfy the contract threshold amount for coverage under those statutes.
1:21 Comment From BCG Institute: Will you be speaking at the National conference?
1:21 Patricia A. Shiu, OFCCP Director: Which conference are you talking about?
1:21 Comment From Ann: What is the best methodology for a contractor to use when analyzing pay of it's workforce?
1:21 Patricia A. Shiu, OFCCP Director: OFCCP does not require one particular methodology for a contractor’s analysis of its pay practices. Contractors may use any method that is consistent with Title VII principles.
1:21 Comment From Beth Scott: When do you expect to release the proposed revisions to the guidelines on sex discrimination?
1:21 Patricia A. Shiu, OFCCP Director: Beth, thanks for asking, the NPRM is scheduled to be published in February 2012.
1:22 Comment From BCG Institute: Is OFCCP actively auditing establishments with fewer than 50 employees onsite?
1:22 Patricia A. Shiu, OFCCP Director: Thanks for your question. The answer is, No, OFCCP is not actively auditing establishments with fewer than 50 employees. OFCCP will investigate complaints against contractors of any size.
1:22 Comment From Angela Brown: When the new compensation tool is developed, will it be available for contractors to use as well?
1:23 Comment From Inderdeep: Compensation analysis - In addition to the tool, is there any discussion about the methodology? Thanks
1:23 Comment From Phyllis: Will you have the new Compensation tool information in New Orleans at the end of the month?
1:23 Comment From Oscar Gregory: Would you be so kind to describe how the compensation data collection tool works (e.g. generally what type of data is collected that would help identify at risk behavior/contractors)?
1:23 Comment From Mark: Will the Vet100A format for job groups move from an EEO-1 to a EEO-6 for institutions of higher education?
1:23 Patricia A. Shiu, OFCCP Director: Thank you for your question. The VETS 100A Form is the responsibility of the Veteran Employment and Training Administration. We suggest that you send your comments to them.
1:23 Comment From Cheryl Bressington: Can we see what the Compensation Data Collection TOol ANPRM looks like?
1:23 Patricia A. Shiu, OFCCP Director: OFCCP is developing an Advanced Notice of Proposed Rulemaking to gather input on the compensation tool. We anticipate the ANPRM to be published in the next few weeks. The ANPRM is a series of questions seeking comment on various aspects of a possible tool. Once developed, the tool will likely be available to both contractors and OFCCP staff as appropriate.
1:24 Comment From Nita Beecher: Is OFCCP planning any substative changes to the sex discrimination guidelines beyond changes in the law such as the one mentioned by you Pat?
1:25 Patricia A. Shiu, OFCCP Director: Nita, at this time, our efforts to update the guidelines are focused on stating clearly the existing principles applicable to a contractor’s obligation not to discriminate in their employment policies and practices because of sex, and to formally align contractors’ obligations regarding sex discrimination.
1:26 Comment From Lonica Bush: Why are federal grant recepients required to comply with the affirmative action guidelines and the executive order?
1:26 Patricia A. Shiu, OFCCP Director: Lonica, not all recipients of federal financial assistance are subject to Executive Order 11246 and its implementing regulations. The Executive Order applies only to government contractors and those contractors performing under federally assisted construction contracts. See this link on our website for the Executive Order: http://www.dol.gov/ofccp/regs/statutes/eo11246.htm
1:26 Comment From BCG Institute: Can you tell us when the FAAP schedule for renewal will be sent out to Contractors?
1:26 Patricia A. Shiu, OFCCP Director: The new FAAP directive is available on OFCCP’s web page. http://www.dol.gov/ofccp/ Notification letters were sent to all existing FAAP contractors informing them that they should contact the OFCCP regarding their intent to renew their agreements in accordance with the new directive.
1:26 Comment From Guest: Several employer associations submitted a joint letter requesting OFCCP withdraw the proposed veterans rule. Is this likely?
1:26 Patricia A. Shiu, OFCCP Director: Thank you for your question. OFCCP will not withdraw the Section 4212 NPRM. The proposed rule is just that – proposed, not final – and was clear in actively seeking the specialized knowledge and input of all interested parties. OFCCP welcomes these various perspectives and believes that they will assist us in developing a Final Rule that achieves the goal of increasing employment opportunities for protected veterans while not creating undue burdens for contractors.
1:27 Comment From Jolene: Do you anticipate that the NPRM for Section 503 will somewhat mirror what is proposed in the NPRM for Section 4212?
1:27 Patricia A. Shiu, OFCCP Director: We are unable to comment on the specifics of the proposal until it is published. However, we anticipate publication of the Section 503 NPRM in the next month.
1:27 Comment From Guest: When will the updated OFCCP Compliance Manual be released?
1:27 Patricia A. Shiu, OFCCP Director: Guest, the FCCM will be published sometime this fall.
1:28 Comment From Stella: Even before the proposed veterans rule, we've had complaints from veterans employees who don't fall into the protected groups. I'd appreciate some recommended responses to these veterans.
1:28 Patricia A. Shiu, OFCCP Director: Hi Stella. Thank you for your question. In the NPRM, we amended some of the definitions of the protected categories of veterans for greater clarity. The specific categories of protected veterans are established by Congress; OFCCP cannot change these categories. If employees have questions, they can always contact OFCCP. In addition to VEVRAA, broader categories of veterans also have some rights under the USERRA statute. They can talk to people from Veterans Employment and Training Service (VETS) with the Department of Labor for more information about USERRA.
1:28 Comment From BCG Institute: Any news regarding an update to the FCCM?
1:28 Patricia A. Shiu, OFCCP Director: OFCCP is still working on the FCCM. We anticipate it will be published in a few months. We will announce the release of the Manual on our website.
1:29 Comment From Nita Beecher: What is the timeline for the proposed scheduling letter being finalized?
1:29 Patricia A. Shiu, OFCCP Director: Nita, the revised scheduling letter was published for comment in May, and the comment period closed July 11th. There were a few comments received. We are reviewing those comments. Our goal is to complete our consideration of the comments, any revisions needed, and return the document with any appropriate revisions to OMB by no later than the end of July.
1:29 Comment From William Kerney: What efforts is USDOL/OFCCP making to avoid duplication of efforts in reviewing highway construction contractors for compliance with EO/EEO?
1:29 Patricia A. Shiu, OFCCP Director: William, OFCCP has an MOU with the Federal Highway Administration. Our field offices coordinate with the FHWA on construction reviews in order to eliminate duplication of efforts.
1:30 Comment From Jay: I think the OFCCP is doing a great job on behalf of American workers out there. Kudos and keep up the great work!
1:30 Comment From Harry: Is the two question format for self identification for applicants a requirement or can we combine race/ethnicity?
1:30 Patricia A. Shiu, OFCCP Director: Harry, OFCCP has issued guidance on the use of race and ethnic categories in affirmative action programs. You can find more specific information here:
1:30 Comment From Marianne: Do you have an idesa of when the 2010 census data will be available?
1:30 Patricia A. Shiu, OFCCP Director: Hi Marianne. The Census data is published by the Department of Commerce. I encourage you to check with their website, DOC.gov for information on their release dates.
1:30 Comment From Suzana: Is there a timeframe on when companies will find out if they have been selected to be part of an audit?
1:30 Patricia A. Shiu, OFCCP Director: Thank you for your question. OFCCP notifies contractors with two or more establishments that might be scheduled for an audit through the agency’s Corporate Scheduling Announcement Letter.
1:31 Comment From Nita Beecher: Are the Compliance Manual changes close to being finalized?
1:31 Comment From Jay-Anne Casuga: Thank you for conducting this chat, Director Shiu. I was wondering if you could comment on the status of OFCCP's revisions to the FCCM and whether those will be made available on OFCCP's website?
1:31 Patricia A. Shiu, OFCCP Director: OFCCP is still working on the FCCM. The revised FCCM will be published shortly. We anticipate it will be published in a few months. We will announce the release of the Manual on our website.
1:32 Comment From Molly Kurt: Once OFCCP receives a contractor's complete submissions in response to a scheduling letter, how long do you expect that OFCCP will take to close the audit, in the absence of any finding of discrimination in hiring or compensation? Thank you.
1:32 Patricia A. Shiu, OFCCP Director: Molly, thank you for the question. If there are no technical violations as well as no discrimination findings, an audit is generally expected to be completed within 90 days. Sometime when cases are more complex, it can take longer.
1:32 Comment From Oscar Gregory: Dr. Shiu, do I understand from your answer that the data collection tool has not been developed?
1:32 Patricia A. Shiu, OFCCP Director: Oscar, that is correct.
1:33 Comment From Angela Brown: Perhaps I need to rephrase my question: when the OFCCP makes a final determination on how to analyze a contractors compensation system, and if it's some sort of program, will that program be made available to contractors so everyone can be working on the same concept/issues? This would help reduce or eliminate surprises in audits and help contractors be proactive.
1:33 Patricia A. Shiu, OFCCP Director: Hi Angela. Thank you very much for your suggestions. We will seriously consider them.
1:33 Comment From Ramsey Jones: When do you think ARRA funds will run out?
1:33 Patricia A. Shiu, OFCCP Director: Thank you for your question. ARRA funds for conducting compliance evaluation ended on September 30, 2010. OFCCP is currently completing its reviews of contactors that were scheduled prior to that date.
1:33 Comment From Inderdeep: To support the veterans' initiatives, are there any discussions regarding guidance and support from OFCCP and other federal agencies?
1:33 Patricia A. Shiu, OFCCP Director: Yes, we are in contact with other DOL (Women’s Bureau, VETS, ODEP, and ETA), federal, and state agencies to develop veteran initiatives, and to ensure that the troops returning from home receive equal opportunity in employment.
1:34 Comment From Glen: Has the OFCCP seen a benefit to performing enforcement by ACE vs ACM? Reviews for locations with headcounts of
1:34 Patricia A. Shiu, OFCCP Director: There are several major differences between Active Case Enforcement (ACE) and Active Case Management (ACM). Under ACE, OFCCP is using all of the compliance evaluation investigative methodologies specified in the regulations (i.e., compliance review, offsite review of records, compliance check and focused review), whereas under ACM, only the compliance review method was used. Under ACM, a full desk audit was only conducted where there were indicators of discrimination or in every 50th review. ACE procedures require a full desk audit in every compliance evaluation. Additionally, ACM procedures focused on identifying cases where there were 10 or more affected class members, whereas ACE does not have a minimum affected class member threshold.
1:34 Comment From Glenn Barlett: The AstraZeneca press release referred to it as an "Equal Pay Case." Does this mean that the OFCCP will be following the Equal Pay Act standards in addition to Title VII?
1:34 Patricia A. Shiu, OFCCP Director: Glenn, OFCCP applies Title VII standards in compensation cases as we did in AstraZeneca.
1:34 Comment From BCG Institute: Is there a schedule for the release the CSAL?
1:34 Patricia A. Shiu, OFCCP Director: In general, CSAL letters are sent from the National Office when the scheduling list is given to the field offices for use. Corporations are generally sent a CSAL if more than two of its establishments appears on the scheduling list. The letters normally go out in the fall and in the spring. The last mailing occurred in February 2011.
1:35 Comment From Brian Rousseve: Right now the Sex Discrimination Guidelines at 41 CFR Part 60-20 are pretty general, and a section addressing compliance with those guidelines is no longer a required element of a Federal contractor's E.O. 11246 AAP for Women and Minorities. Is the plan to "beef up" the Sex Discrimination Guidelines so that they are more akin in their scope to 41 CFR Parts 60-300 & 60-741?
1:35 Comment From Brian Rousseve: Is the plan to "beef up" the Sex Discrimination Guidelines at 41 CFR Part 60-20 so that they are more akin to 41 CFR Parts 60-300 & 60-741?
1:35 Patricia A. Shiu, OFCCP Director: Brian, at this time, our efforts to update the guidelines are focused on stating clearly the existing principles applicable to a contractor’s obligation not to discriminate in their employment policies and practices because of sex, and to formally align contractors’ obligations regarding sex discrimination.
1:35 Comment From Elaine: The Employment Resource Referral Directory says "coming soon" on your site but has been there for years. Is it being updated, or what is the status of this tool please?
1:35 Patricia A. Shiu, OFCCP Director: Thank you, Elaine for your question. Yes we are updating the Employment Resource Referral Directory and anticipate reposting in the next few weeks.
1:36 Comment From Nita Beecher: Is OFCCP collaborating with EEOC as it develops its compensation tool?
1:36 Patricia A. Shiu, OFCCP Director: Nita, great question, as you know, OFCCP and EEOC routinely work closely together and this includes sharing our thoughts and experiences surrounding an appropriate compensation tool.
1:36 Comment From Glenn Barlett: During an AAAA Summit workshop an OFCCP District Director said that OFCCP wants contractors to put veterans (not even just covered veterans) at the top of their hiring list. Doesn't this go beyond the statute?
1:36 Patricia A. Shiu, OFCCP Director:
Thank you for your question, Glenn. The VEVRAA statute and its interpretive regulations cover only certain categories of veterans. Further, these laws do not give veterans priority in hiring; they provide that state workforce agencies give priority referral of veterans to hiring federal contractors and require other affirmative action efforts by contractors such as recruitment, internal dissemination of policies, and training.
1:37 Comment From Tom: If you dont use a 2 question process and have 1 race/ethnicity category. Does the ethnicity/race category of Hispanic trump all other races including 2 or more races, so that a person is reported as Hispanic only.
1:37 Patricia A. Shiu, OFCCP Director: Tom, OFCCP has issued guidance on the use of race and ethnic categories in affirmative action programs. You can find more specific information here:
1:37 Comment From Shannon: Is there a website we can check to see when our audit has been closed out?
1:37 Patricia A. Shiu, OFCCP Director: No, currently there isn’t one. Thank you for that recommendation. We will take it into serious consideration.
1:37 Comment From Terry: Do you plan on sending out any more pre-scheduling letters this year
1:37 Patricia A. Shiu, OFCCP Director: Thank you for your question, whenever we send out a scheduling list to the field, we will send the corporate scheduling announcement letters.
1:38 Comment From Elsie: Where can we view the comments submitted in response to the proposed scheduling letter revisions?
1:38 Patricia A. Shiu, OFCCP Director: Elsie, the comments are available on http://www.regulations.gov/
1:39 Comment From Ariane Hegewisch: What efforts is the OFCCP making so that workers know that their employers are federal contractors, and where they may complain if they think their employer is discriminating? What is the balance between audit investigations and complaints initiated investigations?
1:39 Patricia A. Shiu, OFCCP Director: Thanks for your question, Ariane. In just the first half of the current fiscal year, OFCCP conducted nearly 1,000 outreach events, reaching almost 26,000 stakeholders, including workers, community-based organizations, civil rights groups, employers, human resources professionals, attorneys, consultants, labor unions, veterans’ service organizations and more. We will continue to participate in these activities. Notices of meetings and events can be found on our website http://www.dol.gov/ofccp. Unfortunately, there is no comprehensive list of all federal contractors; however, when a complaint is received at either EEOC or OFCCP, our investigators will determine whether or not the employer is a federal contractor. One thing we do know is that investigations based on individual complaints are twice as likely to result in a finding of violation than those we conduct based on our neutral scheduling process. Finally, OFCCP is hoping that our worker outreach education efforts will, indeed, result in more individual complaints.
1:40 Comment From David Fortney: Are there plans to issue any guidance on seeking waivers for those portions of a contractor's operations that do not in any way relate to the federal contract servcies? Thank you.
1:40 Patricia A. Shiu, OFCCP Director: Hi David. The Section 503 regulations already list the factors that OFCCP uses to determine whether to grant separate facility waivers. Contractors should address each of those factors when requesting a waiver. The same factors apply under all of OFCCP’s programs.
1:41 Comment From Barbara Adkison: If an employer is found to be guilty of pay discrimination after the pay tool is released, how soon are they required to may changes, and are there consequences?
1:41 Patricia A. Shiu, OFCCP Director: Barbara, the compensation tool and its uses are still under development. We will be publishing an advanced notice of proposed rulemaking to give stakeholders the opportunity to provide input on a variety of issues.
1:41 Comment From John Ambrose: I am aware the OFCCP and EEOC have increased there level of communication with the encouragement of the new administration. In addition to that, have there been any constructive talks to create cost efficiencies in government by combining the EEOC and OFCCP into a stronger more streamlined civil rights organization?
1:41 Patricia A. Shiu, OFCCP Director: You’re right, John. OFCCP and EEOC, as well as the Department of Justice, have increased communications at all levels. For example, we are conducting joint trainings; coordinating civil rights policies on an ongoing basis; developing pilot programs among our field offices; and sharing best practices. The purpose of this collaboration is to develop a unified civil rights agenda which is part of President Obama’s vision for our agencies.
1:42 Comment From Molly Kurt: Does OFCCP always send a notice to the contractor to advise that the audit has been closed?
1:42 Patricia A. Shiu, OFCCP Director: Yes.
1:42 Comment From BCG Institute: Will you be speaking at the 2011 National ILG conference in New Orleans in late July?
1:42 Patricia A. Shiu, OFCCP Director: Yes, I will, and I look forward to seeing you there!
1:43 Comment From Guest: At what point will you establish compliance procedures?
1:43 Patricia A. Shiu, OFCCP Director: OFCCP is still working on the FCCM. The revised FCCM will be published shortly. We anticipate it will be published in a few months. We will announce the release of the Manual on our website.
1:44 Comment From Paul, The New EEO Source: Are you seeing any trends with respect to major violations in compliance reviews?
1:44 Patricia A. Shiu, OFCCP Director: Thanks, Paul. One trend that OFCCP has observed is that when it identifies major violations, contractors have failed to implement internal, self-audit procedures and failed to implement corrective actions. This has resulted in the agency finding record keeping violations relating to personnel activity and compensation.
1:44 Comment From Tracy Breckenridge: I've recently met with a division EVR specializing in finding work for disabled vets. While meeting with him I asked him about other vets initiatives not specifically for disabled vets and he said there arent many resources for non disabled vets. Do you have any additional information that could help in our outreach efforts?
1:44 Patricia A. Shiu, OFCCP Director: Thank you for your question, Tracy. In the VEVRAA NPRM we discussed several resources that contractors can use to link up with protected veterans seeking employment. Among these is the National Resource Directory, a partnership with an online collaboration among the Departments of Labor, Defense, and Veterans’ Affairs. The NRD is a leading government website that provides prospective employers of veterans access to Veterans’ service organizations, existing job banks of veterans seeking employment, and other resources at the national, state, and local levels. Please visit http://www.nationalresourcedirectory.gov/
1:45 Comment From lynne: Ms. hiu, With respect to your answer about locations of fewer than 50 employes. If we receive an audit letter for that location, what should we do?
1:45 Patricia A. Shiu, OFCCP Director: We suggest you contact the OFCCP office that sent you the letter to discuss and verify the number of employees at your establishment.
1:45 Comment From Fred: Will the proposed scheduling letter update follow OIRA protocol (http://www.reginfo.gov/public/jsp/Utilities/faq.jsp), which includes a second public comment period of 30 days before final approval? If so, will OFCCP seek an emergency extension for the current scheduling letter, which expires 9/30/2011?
1:45 Patricia A. Shiu, OFCCP Director: Fred, yes, we are following the OIRA protocol and will provide an opportunity for a second round of comments on the proposed updates to the scheduling letter. We do not anticipate that an emergency extension will be needed.
1:45 Comment From Stephanie R. Thomas: You've referenced analysis methodologies consistent with Title VII principles in this webchat, and also in previous chats. What is the Agency's position on the use of non-statistical tools for analysis? Are there non-statistical tools that are consistent with Title VII principles?
1:45 Patricia A. Shiu, OFCCP Director: Thanks for your question. Yes there are non-statistical tools that are consistent with Title VII principles. OFCCP will also consider anecdotal evidence, evidence of individual instances of discrimination and any other evidence that is relevant to the question of whether there is unlawful discrimination.
1:47 Comment From Sarah V.: Has any thought been given to developing deeper relationships with unions and their apprenticeship programs, to increase the possibility that union referral programs will consider an employer's obligations regarding affirmative action and good faith efforts in referring its members?
1:47 Patricia A. Shiu, OFCCP Director: Sarah, that’s a great question. In just the first half of the current fiscal year, OFCCP conducted nearly 1,000 outreach events, reaching almost 26,000 stakeholders, including workers, community-based organizations, civil rights groups, employers, human resources professionals, attorneys, consultants, labor unions, veterans’ service organizations and more. Given our proposed regulations on construction, we are spending a significant amount of time meeting with our colleagues in the union movement. In fact, I spoke at the building and construction trades conference in California on April 30, and the DOL hosted an apprenticeship fair on the National Mall here in D.C. last month. We are always looking for opportunities to strengthen our relationships with our brothers and sisters in the house of labor. If you have suggestions, please feel free to contact my special assistant at Mehta.email@example.com. Thanks
1:47 Comment From Guest: Can you explain to some of us what is the "Scheduling Letter"?
1:47 Patricia A. Shiu, OFCCP Director: Guest, the scheduling letter is a notification that a federal contractor has been selected for compliance evaluation.
1:48 Comment From Carolyn: Any word on moving to one form for reporting when using the Vets 100 and Vets 100A?
1:48 Patricia A. Shiu, OFCCP Director: The VETS 100 and 100-A forms are owned by VETS, not by OFCCP. So any decision regarding whether to combine the two would be made by VETS. The section 4212 NPRM requested input on whether there are still contracts that exist that would be subject to the VETS 100 requirement. OFCCP will coordinate with VETS on development of the final rule.
1:48 Comment From Heather: What is the FCCM?
1:48 Patricia A. Shiu, OFCCP Director: Good question. The FCCM stands for the Federal Contractor Compliance Manual and serves as a “how to” guide for OFCCP’s compliance officers. The Manual should reasonably ensure quality and consistency by creating uniformity in investigative procedures nationwide and providing transparency as to how we conduct compliance evaluations and complaint investigations.
1:49 Comment From BCG Institute: What do you suggest Federal contractors do when they want to post a job but cannot access the state job board?
1:49 Patricia A. Shiu, OFCCP Director: We suggest you contact the state workforce agency to request technical assistance with accessing their state job board.
1:49 Comment From Tony: Question of data requirements for compensation reviews. Will compensation analysis regulations require contractors to provide employee data up to 7 to 10 years before date of the audit letter, including termed employees for many years?
1:49 Patricia A. Shiu, OFCCP Director: Tony, thank you for your question. Currently, there is no set period of time for analyzing compensation data. The period of time is determined on a case by case basis.
1:50 Comment From Tracy Breckenridge: Is there an estimated date for release of the New Census data and will the Census Codes be updated as well or will the coding stay the same and just the avail. will change?
1:50 Patricia A. Shiu, OFCCP Director: Tracy, I don’t have an answer for you on this. You should check with the Department of Commerce’s website at www.doc.gov. They will control the publication of the new census data.
1:50 Comment From Guest: I read the the regulations regarding VEVRAA and Section 503 to exclude employers working on federally assisted contracts, regardless of dollar value. Do you agree?
1:50 Patricia A. Shiu, OFCCP Director: Guest, you are correct. The regulations implementing VEVRAA and Section 503 do not apply to contractors that have only federally assisted contracts, and only Executive Order 11246 applies to federally assisted construction contracts.
1:51 Comment From Mary Ann: In 2010 we submitted a request for FAAP with no response for approval and shortly thereafter the moratorium was enforced. Should we submit a new FAAP request or will our previous request be reviewed and a response regarding disposition be sent?
1:51 Patricia A. Shiu, OFCCP Director: Mary Ann, thank you for your request. The new FAAP directive was published on June 14, 2011. You should resubmit your FAAP request in accordance with the new guidance.
1:51 Comment From Matt: If there is no comprehensive list of all federal contractors as you stated, what process or resources does OFCCP use to determine whether an employer to an individual complaint is a federal contractor?
1:51 Patricia A. Shiu, OFCCP Director: Thank you for your question. OFCCP uses several databases to determine whether an employer is a federal contractor. Examples include Central Contractor Registration (CCR), Federal Procurement Data System-New Generation (FPDS-NG), EEO-1 Surveys, and Dun & Bradstreet. CCR captures registration information of all federal contractors. FPDS-NG captures all transactions of federal contracts. We receive EEO-1 reports from the U.S. Equal Employment Opportunity Commission for all businesses that self-report as federal contractors. Finally, Dun & Bradstreet captures name, address, family tree, and DUNS numbers for all facilities and subsidiaries of a business.
1:53 Comment From BCG Institute: For the proposed changes to the itemized listing in the desk audit letter, can you tell us if the transaction data collection method will be by job group and job title showing counts or do you expect a detailed data file by individual transaction?
1:53 Patricia A. Shiu, OFCCP Director: BCG, the proposed scheduling letter requests transactional data by count grouped by job group and job title not by individual transactions.
1:54 Comment From Inderdeep: Ms. Shiu, this chat has been extremely informative. Thank you for reaching out to the community and offering invaluable guidance.
1:55 Comment From Guest: Any anticipated changes to the Tipping Point tests for comp analyses?
1:55 Patricia A. Shiu, OFCCP Director: I assume that you are not referring to the book by Malcolm Gladwell. Unlike Mr. Gladwell, the OFCCP does not use tipping points for our compensation analyses.
1:55 Comment From Bob: Can the VEVRAA posting requirement be waived in order to create a position for a dual career hire?
1:55 Patricia A. Shiu, OFCCP Director: Bob, the VEVRAA posting requirement cannot be waived in this situation. The requirement was put into place to ensure diversity of the pool and equal opportunity. You want to make certain you have the best candidates available from which to choose.
1:56 Comment From Matt: What advice would you provide to contractors regarding the inclusion of temporary faculty into AAPs, recognizing that these employees are typically contracted on only a quarterly or semester basis and that the recruiting period typically consists of a week or less time immediately prior to the start of the term, as necessitated enrollment?
1:56 Patricia A. Shiu, OFCCP Director: Matt, thank you for your question. Under our regulations, the definition of employee is broad and includes temporary employees.
1:56 Comment From Jay-Anne Casuga: In OFCCP's budget justification documents for FY 2012, the agency mentioned analyzing potential worker misclassification while conducting compliance evaluations. Has OFCCP been analyzing misclassification in reviews and will it release guidance on what the agency is analyzing?
1:56 Patricia A. Shiu, OFCCP Director: You’re right, Jay-Anne, worker misclassification is an important issue for the OFCCP because Federal contractors must include all their workers in their compliance plans and not mask some by classifying them as independent contractors. As part of the Secretary’s department-wide “Plan Prevent and Protect” initiative, we are working with other DOL agencies on this misclassification issue.
1:56 Comment From lynne: Ms. Shiu, In some of my desk audit, as a follow up I reeive a request for more information on compensation. Each request has required different information. Some 13 items, some 18. Why the diferences?
1:56 Patricia A. Shiu, OFCCP Director: In order for OFCCP to understand the factors that influence compensation, we will request additional information from contractors to better understand the contractor’s compensation practices. The type of information requested will vary based upon the contractor’s establishment undergoing a compliance audit and the employees covered by the AAP.
1:57 Comment From Guest: What is a FAAP?
1:57 Patricia A. Shiu, OFCCP Director: A FAAP is a Functional Affirmative Action Program.
1:57 Comment From Jolene: Is the OFCCP or other federal agencies working with the Department of Education and certifying bodies to address the issues with accreditations and licensing standards? Many vets coming back do not have the necessary skills, licenses and/or education required to be hired, so how can this barrier be addressed so employers aren't being accused or blamed for not doing more to hire veterans? This is a real serious issue and frustration, yet the new NPRM will hold employers accountable to "hiring benchmarks" without taking into consideration available data sources that consider the availability of veterans with certain occupational skills. What is the OFCCP doing to address this issue?
1:57 Patricia A. Shiu, OFCCP Director: Jolene this is a fantastic question and I thank you for raising this important issue. We will definitely coordinate with our colleagues at the Department of Education and at the Veterans Employment Training Services here at DOL to see how we can best address this challenge. I really appreciate you raising this point.
1:57 Comment From Shirley Wilcher: I also wish to thank you for this informative chat and for speaking at the AAAA Access, Equity and Diversity Summit in Atlantic City. We look forward to partnering with OFCCP in the future on higher education and other issues.
1:57 Comment From guest: Hi pat, do you have any data on how you ofccp is doing relative to last year? More? Le
1:57 Patricia A. Shiu, OFCCP Director: Guest, in the first six months of Fiscal Year 2011, OFCCP has completed 44 financial conciliation agreements that include $5.66 million and 657 job offers for 8,090 victims. This compares favorably to the same period last year when we had completed 35 financial CAs totaling $2.77 million and 582 job-offers for 3,157 victims. This represents a 25 percent increase in CAs, more than double the financial remedies and, most importantly, an increase in job opportunities for workers who faced discrimination.
1:57 Comment From Tracy Breckenridge: Has there been any discussion on broadening the Census Descriptions. We have very niche positions that do not fall into any of the categories which causes our availability to be falsely inflated.
1:57 Patricia A. Shiu, OFCCP Director: Tracy, thank you for your question. We’d love to hear your thoughts about how the categories should be defined.
1:58 Comment From Guest: Ms. Shiu, thank you for this information. Are these questions & answers available to print out for reference?
1:58 DOL Chat Moderator: The chat will be archived and available as soon as this session is completed.
1:58 Comment From Jolene: The OMB has a database of federal contractors (USAspending.gov). Does the OFCCP plan to collaborate with them to leverage and access the use of this database?
1:58 Patricia A. Shiu, OFCCP Director: Hey, Jolene. USAspending.gov gets its data from the Federal Procurement Data System-next generation database. OFCCP already uses the FPDS database to put together our scheduling list for compliance audits.
1:59 Comment From guest: When do the next scheduling letters go out?
1:59 Patricia A. Shiu, OFCCP Director: Guest, the scheduling letters go out periodically throughout the year in the order in which the contractor appears on the list.
1:59 Comment From BCG Institute: The census bureau has been posting updates to the release of the 2010 EEO file. The last update suggested Dec 31, 2012 as a possible release date.
1:59 Patricia A. Shiu, OFCCP Director: Thank you very much for your comment.
1:59 Comment From Fred: As a part of an employee self service should an employer ask an employee to self identify if they have a disablity or only ask about disability if the employee is asking for a reasonable accommodation?
1:59 Patricia A. Shiu, OFCCP Director: In general, Section 503 of the Rehabilitation Act of 1973 requires that contractors invite applicants to self-identify as an individual with a disability after a job offer has been made, but before an applicant begins employment duties. The contractor may invite self-identification before making a job offer when the contractor is undertaking affirmative action for individuals with disabilities at the pre-offer stage, or is made pursuant to a Federal, state, or local law requiring affirmative action for individuals with disabilities. In addition, if an applicant or employee requests reasonable accommodation, the contractor may ask what the disability is and what functional limitations need accommodating.
2:00 Comment From Barb L: Do you recommend any specific software programs to create an AAP?
2:00 Patricia A. Shiu, OFCCP Director: Thanks for your question, Barb. However, the OFCCP doesn’t provide recommendations for software to prepare AAPs.
2:00 Comment From Sue: Does OFCCP require that more minorities be hired when there is under utilization or only that greater targeted recruitment efforts be made to attract the underutilized minority group?
2:00 Patricia A. Shiu, OFCCP Director: Sue, in the event of underutilization OFCCP requires contractors to undertake enhanced targeted recruitment efforts.
2:00 Comment From Tracy Breckenridge: I have a basic question i've asked to a variety of resources and I always receive different answers. We receive Grants from the Fed Gov. NSF, IMLS, etc. Are we considered a federal contractor and do we fall under the OFCCP regulations?
2:00 Patricia A. Shiu, OFCCP Director: Thank you for your question. If you’re a grantee we do not consider you a federal contractor.
2:01 Comment From Leigh Nason: In what circumstances will OFCCP forward a complaint to EEOC for investigation?
2:01 Patricia A. Shiu, OFCCP Director: Leigh, in general we forward complaints for which we cannot establish jurisdiction. If you have a specific question about a complaint, you may want to contact the local district office.
2:02 Comment From Glenn Barlett: The regulations state that " listing employment openings with the state workforce agency job bank where the opening occurs or with the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service office." The OFCCP nevertheless seeks listings with local offices. Why is this?
2:02 Patricia A. Shiu, OFCCP Director: Glenn, thank you for your question. You raise several interesting items. You may find reviewing our FAQs and other resources on the OFCCP website useful.
2:03 Comment From Stella: Given the hi rate of unemployment among people with disabilities and given the administration's commitment to ramp up Sec 503, is OFCCP working with other agencies to develop a more robust pipeline of workers with disabilities, such as beefing up the Workforce Recruitment Prog for college students with disabilities?
2:03 Patricia A. Shiu, OFCCP Director: Stella, thank you for your question. The workforce recruitment program is administered by DOL’s Office of Disability Employment Policy. OFCCP is working on a Notice of Proposed Rulemaking proposing revisions to strengthen the regulations implementing Section 503 of the Rehabilitation Act. We anticipate publishing the Section 503 NPRM next month.
2:03 Patricia A. Shiu, OFCCP D: I want to thank everyone for participating in this web chat. At the Department of Labor we are committed to transparency in all our activities. Web chats like this are part of President Obama’s open government initiative, which seeks to engage the American public in the work we do to implement and enforce the law. In just the first six months of the current Fiscal Year, OFCCP hosted nearly one thousand worker education, community outreach and compliance assistance events for nearly 26,000 people. We will continue those efforts in the coming months and years.
If you would like to be added to our mailing list, you may sign up for alerts on our web site at www.dol.gov/ofccp. You can also contact us directly through our hotline at (800) 397-6251 or by sending an e-mail to OFCCP-Public@dol.gov.
If you work for a federal contractor or subcontractor and think you have been subjected to discrimination at your workplace, please contact us immediately. If you believe you did not get a job from a contractor because of discrimination, we want to know. We have six regional offices and 43 District and Area offices across the country where compliance officers are ready, willing and eager to assist you. For more information on how to contact our field offices, please check out our web site at www.dol.gov/ofccp.
Once again, thanks for spending your hour with us!
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