Learning from Oracle vs. OFCCP: The Complexity of Compensation
At the end of last year, the United States Department of Labor and software developer Oracle America find themselves locked in a battle over allegations of discrimination and claims of government overreach.
Back in January 2017, the DOL sued technology leader Oracle America for discriminatory employment practices. According to the suit, filed by the DOL’s Office of Contract Compliance Programs, Oracle demonstrated a systemic practice of paying Caucasian male workers more than their counterparts in the same job title. This practice led to pay discrimination against female, African American and Asian employees.
“Federal contractors are required to comply with all applicable anti-discrimination laws,”OFCCP Acting Director Thomas M. Dowd said at the time. “We filed this lawsuit to enforce those requirements.”
Now, nearly two years later, Oracle has filed a lawsuit against the OFCCP challenging the legality of its system of enforcement and adjudication for discrimination claims against government contractors. The company’s complaint alleges that this system was not authorized by Congress or the president and contravenes statutory authorities.
“Oracle filed this case because it is being subjected to an unlawful enforcement action by the Labor Department utilizing a process with no statutory foundation whatsoever,” said Ken Glueck, executive vice president, Oracle. “It is apparent that neither Solicitor of Labor Kate O’Scannlain nor OFCCP Director Craig Leen is prepared to move back to a system where merits trump optics. Oracle brings this suit because the leadership at the Department of Labor has failed to restore balance to an unrestrained bureaucracy.”
The battle between Oracle and the U.S. government dates back to 2014 when the OFCCP launched a compliance review of Oracle’s equal employment opportunity practices at its Redwood Shores headquarters. During that investigation the OFCCP says the company refused to comply with the agency’s requests for employment data and records including prior-year compensation data for all employees, complete hiring data for certain business lines, and employee complaints of discrimination. The agency says it attempted to resolve Oracle’s alleged discrimination violations for nearly a year before filing the suit.
As part of the suit, the OFCCP is seeking lost wages, stock, interest, front wages, salary adjustments, promotions and all other lost benefits of employment for individuals included in the suit, and a reform of discriminatory policies. In addition to compensation practices favoring Caucasian male workers, the OFCCP suit also alleges Oracle had a systemic practice of favoring Asian workers in its recruiting and hiring practices for product development and other technical roles.
Oracle asserts that the agency’s claims of discrimination are based on “false allegations, cherry-picked statistics, and erroneous and radical theories of the law.”
“We believe strongly in maintaining a level playing field in the workplace for all of our employees and remain proud of our firm commitment to equality in our workforce. This lawsuit seeks to ensure that employers such as Oracle are likewise entitled to a level playing field when the government asserts claims of discrimination. That has not been the case with the OFCCP, resulting in enforcement actions that are meritless and defamatory to Oracle, its executives, and other government contractors,” said Glueck
Despite the protracted back and forth between the two parties the fate of Oracle and the OFCCP is yet to be determined as these lawsuits make their way through the courts.
In a hearing for the original lawsuit on Dec. 5, the OFCCP claimed that Oracle underpaid female, Asian and black employees working in certain roles at its headquarters by $401 million over the course of four years. Employees testifying for the agency said they were punished when they voiced concerns about pay disparities at Oracle.
On Dec. 13 Oracle began its defense after a federal administrative law judge denied Oracle’s attempt at an early trial win. Experts testifying for Oracle on Dec. 16 claimed pay differences stem from the jobs performed by different employees. Employees testifying for the defense praised the company and its hiring and compensation policies.
Federal courts have yet to determine the outcome of the current OFCCP lawsuit and countersuit from Oracle, but these suits are poised to have far reaching implications for federal discrimination allegations in the future. Now that the agency’s power has been called into question other pending discrimination suits could be challenged as well.
Oracle’s cost fighting the OFCCP claims of pay discrimination
In addition to the legal and consulting fees that Oracle had to bear, their expert witness, a labor economist, will receive over $3 million for the work and analysis performed, in relation to this case and in the civil case brought by employees alleging Oracle engaged in pay discrimination.
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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.
