Last month, the US Department of Labor (DOL)’s Office of Federal Contract Compliance Programs (OFCCP) settled an ongoing case against Tufts Associated Health Plans, Inc, involving allegations of retaliation against 12 Asian, Hispanic and African-American employees hired as a result of a prior Conciliation Agreement (CA). Under the July 2013 CA, Tufts has agreed to:
Pay $372,739 in back wages benefits, interest and a sum “in lieu of rehire” to all class members;
Provide training to all managers and trainers involved in enforcing the Equal Employment opportunity and retaliation provisions of Executive Order No. 11246;
Immediately revise and implement policies and procedures to retain and preserve all employment records related to Tufts’ training program for at least two years from the later of a) the date the record is made or b) the date personnel action occurs, as long as Tufts remains a federal contractor within the meaning of Executive Order 11246.
Background:
Executive Order 11246 prohibits federal contractors and federally-assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. The Executive Order also requires their employment without regard to race, color, religion sex or national origin. Tufts offers health coverage options, including Medicare Part D prescription benefits, which it offers under a contract with the Centers for Medicare and Medicaid Services in order to operate a voluntary Medicare Prescription Plan. According to the OFCCP’s records, Tufts’ total contract amount for Part D prescription benefit plans just for January through May 2012 was $84.5 million, rendering Tufts a federal contractor, subject to Executive Order 11246, and OFCCP jurisdiction.
Back in November 2005, the OFCCP initiated a Compliance Evaluation (audit) of Tufts’ Watertown, MA facility. The OFCCP’s audit concluded that some of Tufts’ phone screening procedures in hiring customer service representatives resulted in more non-minorities passing the initial phone screen than minorities, leading to many more non-minorities than minorities being scheduled for tests and ultimately hired. In 2009, Tufts and the OFCCP entered into a Conciliation Agreement, in which Tufts agreed to pay $87,213 to the affected minority applicants, and to hire 19 of the rejected applicants.
Unfortunately, the matter did not end with the 2009 settlement. In March 2010, one of the 19 applicants hired under the 2009 CA filed a complaint alleging that he was terminated a) due to his race and b) in retaliation for being one of the beneficiaries of the settlement. The complainant further alleged that Tufts segregated the 19 minority class members from other employees, and held them to stricter standards during the training program than those not hired under the CA. The OFCCP’s investigated and concluded that a) Tufts retaliated against the 19 class members hired under the 2009 CA “by inconsistently administering, implementing, and monitoring” the training programs in which class members participated “to the detriment” of those class members and b) Tufts violated its obligation to retain and preserve records relating to the training program as required by the 2009 CA and Executive Order 11246.
Some Observations:
What makes this case, more noteworthy than other OFCCP settlements? Here are just a few points:
This settlement arose out of a case alleging retaliation against employees to whom a federal contractor agreed to extend offers as part of a settlement of a prior OFCCP audit, rather than a regularly-scheduled compliance evaluation.
The prior Conciliation Agreement did not end all possibility of OFCCP involvement for Tufts. Since those hired under a CA are already aware of their legal rights, they know where to go to redress mistreatment.
This case shows that the OFCCP does not just conduct audits, but will also investigate complaints by individual employees, and will accord high priority to retaliation complaints by anyone benefitting from a prior CA. Why? This type of situation speaks to the OFCCP’s ability to enforce the law, thus striking at the heart of the OFCCP’s authority.
Employer Best Practices:
What can federal contractors do going forward to ensure that its employment practices comply with Executive Order No. 11246 and avoid triggering OFCCP audits or complaints? Here are some starting points for federal contractors:
1. Train managers in their role in achieving equal employment opportunity, and, specifically make sure managers are fully aware that the law expressly prohibits retaliation of any kind.
2. Contractors who are parties to a CA involving preferential hiring of one or more alleged victim classes should provide more targeted training to managers expected to work with the new employees. The training should make it clear that such employees must be treated in the same way as other employees. This training too should ensure managers’ awareness that retaliation is expressly prohibited.
3. If the need to discharge any employee benefitting under a CA should arises, contractors should follow the same policies and procedures it uses to discharge all its employees, and should a) thoroughly document all steps taken, all communications and its reasons and b) make sure HR and in-house or outside counsel review all processes and procedures used, as well as all documentation, in order to ensure a strong defense to possible retaliation/discrimination claims.
4. Federal contractors should make sure they can honor the commitments they make or are asked to make as part of a CA before actually “signing off” on the CA. Contractors who agree to overly aggressive, ambitious requirements, particularly with respect to record-keeping, may end the audit or case for the time being, but ultimately find themselves in “hot water” if they cannot meet the requirements to which they previously agreed.
For More Information:
Readers interested in learning more about this case can find the OFCCP’s press release here. For more information on this case and best practices for federal contractors, please feel free to contact Ahmed Younies at 714-426-2918, extension 1, or email him at [email protected]
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.
