“Under this agreement, FedEx will have to really examine and revamp its hiring practices across the entire company. The American people ought to have confidence that one of our nation’s most trusted brands will not tolerate discrimination.” –OFCCP Director Patricia Shiu, March 22, 2012
Yesterday, we’d barely finished the post we published this morning when we received releases with this new headline (the full press release is available here):
Shipping giant FedEx to pay $3 million to settle charges of hiring discrimination brought by US Department of Labor
Although this is a case of “I told you so”, FedEx appears to be taking concrete steps toward fixing their issues. The “I told you so” part is because, due to what actions they have committed to take in addition to the violations they were cited for, they appear to have made all the mistakes I associate with making compliance a low priority. This, of course, was the topic of this morning’s post (which you can read here.)
But before I get to that, let me quote from a blog post OFCCP Director Patricia Shiu published yesterday about the FedEx case:
Federal contracts are big business. In fact, nearly one-quarter of the American workforce works for a federal contractor or subcontractor. That’s nearly 200,000 businesses with almost $700 billion in contracts… …But it comes with a legal obligation to ensuring fair and equal treatment of workers and job applicants – regardless of sex, race, color, religion, national origin, disability or status as a protected veteran. When they sign on the dotted line, contractors promise that they won’t use taxpayer dollars to discriminate. It’s a privilege, not a right, and means you absolutely, positively have to comply with the law.
This, of course, goes to the heart of the ethical argument. It’s an issue of fairness both to the job seeker and also to the taxpayer. Her statement also goes to the heart of the financial argument, which I mostly touched on in this morning’s email, but in addition to the fees and lost productivity, a non-compliant company risks losing part of that $700 billion pie.
Now, back to the “I told you so” part of this message. First, as a result, FedEx will likely be out $6 million or more (yes, that’s double the $3 million fine—see here for an explanation), in order to give only $138.66 on average to each affected job seeker ($3,000,000 ÷ 21,635 affected people). This $6 million is likely far too low because, in addition to the reasons cited in my earlier post, the OFCCP investigations began seven years ago! For FedEx, this means seven years of attorney’s fees paid to specialist outside firms. (What is the likelihood than an internal General Counsel handled this alone? Pretty low. Although I’m sure they were included as well…instead of working on the general legal work of the company, resulting in a further loss of productivity).
Furthermore, according to the press release:
…FedEx Ground has committed to wide-ranging reforms. The company has promised to correct any discriminatory hiring practices, develop and implement equal employment opportunity training, and launch extensive self-monitoring measures to ensure that all hiring practices fully comply with the law. FedEx Ground also has agreed to engage an outside consultant to perform an extensive review of the company’s hiring practices and provide recommendations to change and improve those practices, to train incumbent and future supervisors and employees, and to monitor compliance with the equal employment opportunity laws enforced by OFCCP. Finally, the company will take necessary steps to comply with all record-keeping requirements.
Note they are adding EEO training, hiring practice fixes, recordkeeping standards, a third-party HR audit, and supervisor training. That FedEx is doing so implies they didn’t already have these practices in place. Weren’t these all things I alluded to in this morning’s email alert? FedEx, like any company of any size, is not immune to de-prioritizing compliance.
You may have noticed “recordkeeping”, which is one of our pet peeves. FedEx was indeed found in “extensive” violation of recordkeeping requirements. From the press release:
We laud FedEx for what appears to be a genuine action plan to correct their procedures. Over the next two years we will have to see if they only have the intention to follow through or if they will follow their plan.
Re-evaluating long-standing beliefs, behaviors, and institutions, companies need to continue moving forward with attracting talent, developing their workforce, forming productive teams, maximizing innovation, and tackling internal and external challenges.
Key approaches in this endeavor include maximizing thoughtful awareness and deepening understanding of beliefs and tendencies that occur below the surface level of individual awareness. In other words, astute organizations realize that a holistic diversity and inclusion program must include information, explanations, and directions toward addressing unconscious biases and microaggressions.
Often, we don’t realize that implicit biases can sometimes result in microaggressions. In this course, we will demonstrate how subtle or unintentional comments and actions towards others can have a negative impact not just on individuals but on the overall culture of an organization, too.
AAP A01 – Understanding AAP Requirements
Date TBD
“Written AAP” is one of the top violations cited by the OFCCP, implying a great need for companies under the OFCCP’s jurisdiction to really get a handle on AAP creation. Part 1 is designed to overview the foundation of written Affirmative Action Plans and their necessity, focusing primarily on the background and structure of an Affirmative Action Plan.
AAP A02 – Organizational Profile and Job Group Analysis
Date TBD
This webinar is designed to provide Supply and Service federal contractors with best practices for performing an organizational profile and job group analysis.
AAP A03 – Determining Availability
Date TBD
This webinar discusses the two factors federal contractors are required to consider in determining availability, as well as typical data used when calculating availability.
AAP A04 – Good Faith Efforts
Date TBD
This webinar will discuss how a company can determine existence of a potential gap in their actual hiring relative to availability of the protected groups, and how to take corrective actions through ‘good faith efforts (GFE)’ in their talent acquisition process. Details of such GFE will be covered with details of how to attract, reach and manage candidate flow of the gap areas, and how to maintain records of such GFE for successful OFCCP audits.
RECORDKEEPING R01 – Maintaining Applicant Flow Data
Date TBD
This webinar is designed to discuss maintaining applicant flow data, both for the internet applicant and traditional applicant definitions. The presentation will cover the maintenance of employment records in paper and electronic format, as well as accessibility of online systems.
COMPENSATION P01 – Analyzing for Compensation Data
Date TBD
This webinar is designed to address compensation regulations and enforcement. It also discusses case laws and related settlements, along with the best practices to mitigate risk of pay disparities.
FAAP F01 – Understanding Functional Affirmative Action Plan
Date TBD
Is FAAP the right AAP for you? Executive Order 11246, Section 503 and VEVRAA allow a contractor to set up their AAPs based on company functional or business units. This option allows the contractor to analyze data by the various operations rather than location/establishment, which may align more closely to their corporate structure. Learn more about the new FAAP Directive and how to comply. You will learn requirements to qualify for FAAP, industries using FAAPs, advantages of using FAAPs, FAAP update, and more.
C01 – Requirements for Construction Contractors
Date TBD
This webinar will provide an overview of what is expected from construction contractors during an OFCCP Evaluation. The Office of Federal Contract Compliance Programs (OFCCP) is part of the U.S. Department of Labor. The OFCCP is responsible for ensuring that employers doing business with the Federal government comply with the laws and regulations requiring nondiscrimination. Construction contractors or subcontractors have a construction contract with the federal government, and are thus subject to evaluations. In summary, this webinar will provide attendees with the “16 steps” that should be taken by construction contractors to comply with federal regulations.
C02 – What to Expect During an OFCCP Construction Evaluation
Date TBD
This webinar will provide an overview of what to expect during an OFCCP construction evaluation. The Office of Federal Contract Compliance Programs (OFCCP) is part of the U.S. Department of Labor. The OFCCP is responsible for ensuring that employers doing business with the federal government comply with the laws and regulations requiring nondiscrimination. When construction contractors face an evaluation, they will first receive a scheduling letter from the OFCCP. This webinar aims to prepare attendees for the events following the scheduling letter.
Workplace Violence
Date TBD
This webinar includes two topics that are important for business leaders and employers to educate themselves on an unfortunate, yet very real trend in the country. Join us as we review Workplace Violence, specifically causes and signs to look for, pre-attack indicators, ways that you can help to de-escalate situations and keep your workplace safe, and how to prepare and handle difficult conversations. Next, we will review history cases of active shooter incidents and understand the underlying details from investigators and law enforcement officials. Included is an examination of motivators and tactics used by active shooters. We will then review suggested reactions if you find yourself in an active shooter situation (Run, Hide, or Fight), including interacting effectively with law enforcement.
Promoting a Respectful Workplace: Preventing Harassment and Bullying
Date TBD
Harassment and abusive behavior training has become a high priority for HR practitioners, company leaders, and their organizations. Recent headlines and hashtags underscore the need to replace the old model, which trained employees on laws and rules, with a fresh approach that emphasizes what matters most – ensuring employees know how to make the right decisions and take the right actions if they experience or witness harassment, discrimination, or other misconduct in their places of work.
In this dynamic society, anti-harassment training is essential for educating employees and leaders on what is acceptable and unacceptable workplace behavior. Even beyond this, employers need to reinforce the message that it is every individual’s responsibility to speak up and report incidents of harassment and retaliation.
Training employees on how to recognize and respond to situations that can lead to harassment, bullying and related behaviors – from the obvious to the subtle – is one of the most effective ways to foster a positive, respectful workplace. Training can also help organizations avoid costly harassment complaints that can damage their reputation, recruiting, retention and bottom line.
Filing for EEO-1 & Vets 4212
Date TBD
EEO Reports / Surveys:
The EEOC collects workforce data from employers with more than 100 employees (50 employees threshold applies to federal contractors). Employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary.
You will learn:
Filing for the EEO-1
Latest deadline for filing the 2018-EEO-1
Other types of EEO reports
VETS-4212 Federal Contractor Reporting:
According to 38 U.S. Code, Section 4212, codified at 41 CFR Section 61-300, respectively, contractors and subcontractors who enter into, or modify a contract or subcontract with the federal government, and whose contract meets the criteria set forth in the above legislation/regulations, are required to report annually on their affirmative action efforts in employing veterans. VETS has a legislative requirement to collect, and make available to OFCCP, reported data contained on the VETS-4212 report for compliance enforcement.
You will learn:
Filing for Vets-4212
Deadline for filing the 2018 & 2019 Vets-4212
Background Checks
Date TBD
“Ban the box” continues to occupy a large portion of recruiting discussions, even in municipalities that haven’t enacted these regulations. It makes sense for employers to reconsider their hiring practices to include the largely-untapped labor market of individuals with criminal histories. Many employers don’t know if and how to expand their recruiting efforts to include this segment. This course is designed to expand your knowledge about this topic and provide you with specific guidance to develop or modify your existing hiring processes.
After taking this course, you’ll have a better understanding of the labor market and how fair chance hiring regulations affect you as an employer, even if you don’t currently need to comply with these municipal regulations. You will have key knowledge to help ensure that your hiring practices incorporate the processes and actions needed to practically deal with candidates who have criminal histories. You will also understand why expanding your hiring practices to those with criminal histories can help you to continue to build a skilled workforce for your company’s success.