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Amanda Shapiro

Amanda Shapiro, M.S.

Senior Consultant
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Amanda Shapiro is a Consultant at DCI Consulting Group. Amanda joined DCI as an Analyst in September 2010. Amanda provides clients with guidance on EEO and affirmative action statutes and regulations to meet the OFCCP compliance requirements. Amanda’s primary focus is to provide support for clients on affirmative action planning, compensation equity analyses, audits, and employment discrimination. She also is involved in testing and selection projects, including job analyses, test validation, and validity generalization research. Amanda has job analysis experience with a variety of industries including professional-based consulting roles and general laborer positions.

Before joining DCI, Amanda worked as a Research Specialist for the Association of American Medical Colleges (AAMC). At AAMC, Amanda worked on the 5th Comprehensive Review of the Medical College Admission Test (MCAT), providing research and statistical support for the members of the advisory committee. She has experience with high-stakes test development, facilitating research meetings, communicating sensitive information, and managing large scale job analysis assessments.

Amanda earned a M.S. degree in Industrial/Organizational Psychology from Radford University and a B.S. degree in Psychology from the University of Florida.

Amanda Shapiro ’s Recent Posts

Between the periods of 2005-2007, OFCCP had several open compliance reviews with Pilgrim’s Pride Corp. establishments. In just the last month, three DOL administrative complaints for audits from this period were dismissed. Dismissals resulted from Pilgrim’s Pride bankruptcy filed in 2008.

In December of 2008, Pilgrim’s Pride declared bankruptcy, and proceeded through the process, effecting a bankruptcy plan in December of 2009. As part of the bankruptcy plan, the Court gave notice of Pilgrim’s Pride bankruptcy available to all relevant parties, requesting that all parties submit claims by June 2009. OFCCP filed a claim alleging discriminatory practices at Mount Pleasant and Lufkin, TX, factories in May of 2009. Pilgrim’s Pride then filed a Claims Objection Procedures Motion to OFCCP’s claims of discrimination to which OFCCP did not respond. As a result, the Court granted Pilgrim’s Pride’s objection, thus disallowing OFCCP’s claim. No other claims were submitted for other Pilgrim’s Pride establishments under review by OFCCP.

On September 15, 2015, one day after the Pilgrim’s Pride bankruptcy plan ended, the DOL filed the first of three administrative complaints with the Office of Administrative Law Judges for the Athens, AL compliance review. The next two complaints were filed for Marshville, NC, and Mount Pleasant, TX, in October 2015 and May 2016 respectively. A press release was also issued for the Mount Pleasant review in May 2016.

As a claim for the Mount Pleasant review was submitted during the bankruptcy plan, but ultimately disallowed, this administrative complaint was not able to move forward. Further, since OFCCP failed to file claims for the Athens and Marshville reviews prior to the bankruptcy notice period of June 2009, the Courts dismissed these complaints. OFCCP maintained they were not properly notified of the Bankruptcy case, thus timely claims could not be submitted in 2009. The Court found that this could not be possible, given that the Southwest and Rocky Mountain Regional Office filed claims in May of 2009 in accordance with the notice. Given that OFCCP is one agency, the court expected that if one region had sufficient notice then all regions should have had sufficient notice.

For more information on the full proceedings, please reference this document. This particular case serves as a helpful reminder to consult legal counsel for guidance during a bankruptcy period if there are open reviews covering a time period prior to bankruptcy.

By Amanda Shapiro, Senior Consultant, and Rachel Monroe, HR Analyst, at DCI Consulting Group

 

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As noted in a recent blog, 800 Corporate Scheduling Announcement Letters (CSAL or courtesy letter) were sent to contractor establishments on February 17, 2017. CSALs serve to give contractors advanced notice that one (or more) of their establishments appear in the list generated by the Federal Contractor Selection System (FCSS). DCI has noted a trend with the recent batch of CSAL letters: some CSALs are addressed to locations with open or recently closed OFCCP audits. In some cases, these locations also received CSALs during the last wave sent in 2014. This may not be representative of all letters, but it is unclear why establishments with open or recently closed audits would receive a CSAL.

As a reminder, if a scheduling letter is received for an establishment with an active audit, or an audit that closed within two years of the date of the new scheduling letter, you should reach out to OFCCP to administratively close the audit. A CSAL does not initiate an audit, thus there is nothing to administratively close or dispute necessarily. One thing to keep in mind is that if enough time passes and the scheduling letter is received two years or more from the close of the previous audit, then the audit can commence regardless of when the CSAL was received. If you have received a 2017 CSAL it is recommended that you reach out to your Consultant and/or Counsel to discuss.

By Amanda Shapiro, Senior Consultant, and Rachel Monroe, HR Analyst at DCI Consulting Group

 

 

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It seems that OFCCP and the Department of Labor (DOL) has been active in early 2017. So far in January we have seen a number of press release worthy settlements and lawsuits. This week, in addition to the lawsuit with JPMorgan Chase, DOL released information on their lawsuit with Oracle America, Inc. (Oracle).

Oracle is a technology company, offering integrated cloud application and platform service, and due to its contracts with the Federal government, also a Federal contractor subject to routine compliance evaluations from OFCCP. OFCCP and DOL have alleged that Oracle discriminated against female, Black and Asian employees in pay. A second allegation focuses on hiring, in which the suit claims that Oracle discriminated against non-Asian applicants. The complaint also describes a refusal to turn over requested records as it relates to prior pay and applicant data/records.

Both the allegations and analyses in this complaint are fascinating. We’ve written many times about aggregation issues on this blog, and this complaint is ripe with examples of when aggregation goes bad. A few highlights from DOL’s press release and the  complaint are summarized below:

  • In reading the press release pay seems to be analyzed by title, however once digging in to the actual complaint it is apparent that pay analysis groups (PAGs) were conducted by line of business. The allegations center around 3 lines of business which include 80 different job titles across the three.  Unfortunately, these large PAGs have become the norm under Directive 307. Although job title is controlled for in the analysis, there are constraints with using this method, and it does not necessarily mean that employees are similarly situated.
  • Similar to pay, applicant analyses are also conducted at an aggregate level – seemingly job group and line of business, which include 69 job titles. These groups are listed as: Professional Technical 1, Individual Contributor (PT1) job group and Product Development line of business (or job function). Due to this mixed bag of job group and function, it’s unclear whether these are legitimate groups that Oracle hires from or whether these are different aggregations created by OFCCP.
  • Further, data may have been aggregated across plan years. Based on the complaint, hiring allegations are only based on data from the first 6 months of the plan year (January 1, 2013 through June 30, 2013), however it is more probable that it was an 18-month time frame given the data that OFCCP had access to. If that is the case, given the size of the location (approximately 7,000 employees), and the types of jobs in the groups listed, it wouldn’t be unreasonable to expect there to be thousands of applicants in the analysis pools.
  • Non-Asian is not a protected class and rather a random aggregation of all race and ethnicities that are not Asian. This grouping is inappropriate and has been previously rebutted by the courts – see our previous blog on OFCCP v. VF Jeanswear Limited.
  • Although not specifically tied to data aggregation – it’s interesting to note that OFCCP also documented findings of comparisons to the national labor data and deemed Asians to be overrepresented in the applicant pool. This was used as evidence of Oracle’s preference for Asians and its target recruitment of the group.

By Amanda Shapiro, Senior Consultant, DCI Consulting Group

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Did you receive a scheduling letter this summer? If so, you’re not alone. DCI has seen a wave of OFCCP scheduling letters received by establishments in June and July.  Many of the audit letters were for establishments that were on the Corporate Scheduling Announcement Letter (CSAL) list with many of the establishments receiving courtesy letters over two years.  Additionally, there have been a handful of establishments that have received a scheduling letter that were not listed on a CSAL.

The majority of audit letters received by DCI clients have been in the Northeast and Midwest regions.  One thing of interest is that in many cases in both regions, the District Office conducting the audit is not the closest or the most logical District Office to be auditing the location based on proximity. That being said, the District Office listed on the letter is still within the appropriate region (e.g., Indianapolis District office auditing a location near Minneapolis and Milwaukee).    Moreover, we have also seen multiple audit letters for locations at the same organization within the same region arrive at the same time. It is not terribly uncommon to see this occur given various workload concerns with offices within a region, but still an interesting trend to note for contractors.

As a reminder, it is always a good practice to remind locations to be on the look-out for an official scheduling letter from OFCCP, as contractors have 30 days to respond with a desk audit submission.

By Joanna Colosimo, Associate Principal Consultant, and Amanda Shapiro, Senior Consultant at DCI Consulting Group 

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DCI has recently seen an increase of audit “pre-requests,” in which a compliance officer requests that a contractor submit additional items to those found in the Itemized Listing. This request is made by OFCCP prior to receiving the contractor’s desk audit submission and asks for items that often appear in an early post-submission request, such as job listing evidence, copy of VETS reporting, copy of employee handbook, etc. It’s unclear whether these requests are consistently asked of all contractors audited through particular district offices; however DCI has seen some consistency of items in such requests.

There are some concerning aspects to these “pre-requests,” including the following points:

  • Although these items are typically requested post-desk audit submission, there is no Office of Management and Budget (OMB)-approved form to request these items of all contractors. When requested before receipt and review of a contractor’s submission, these items appear to be a more indiscriminate solicitation, similar to an OMB-approved information collection request (ICR).
  • Following the previous point, these requests are typically presented as though they are required as part of the desk audit submission and many contractors may not understand they can (and often should) request extra time to fulfill the request or explanation of why certain items are being requested.
  • In spite of providing some helpful tips as part of these requests, some of the guidance provided by the compliance officer is incorrect or may be confusing. For example, we have seen guidance noting that hiring numbers with 1:1 selection to pool ratios, or small ratios, are not to be included in the submission. This implies that in all instances a 1:1, or small, hiring ratio would be incorrect or a violation of the regulations, yet we know that in some cases this scenario occurs for legitimate reasons; see this blog for additional exploration of this topic.

Because these “pre-requests” appear to be increasing in frequency, contractors are advised that if they receive such a request for an establishment, begin by engaging with the compliance officer. Outright denying access to requested materials is not recommended; however, DCI does recommend acknowledging receipt.  Contractors should work with the compliance officer to determine a different submission date and/or politely request that OFCCP first review the desk audit package once delivered, before requesting items that are not a part of the OMB-approved scheduling letter and itemized listing.

By Jana Garman, Consultant, and Amanda Shapiro, Senior Consultant at DCI Consulting Group

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In OFCCP v. Bank of America (BOA), the Administrative Review Board (ARB) overturned OFCCP’s allegation that BOA discriminated against Blacks in 2002-2005. As described in another blog in this series, the basis for the ARB reversal of the 2002-2005 case was the lack of evidence through data aggregation. Specifically, the ARB stated that:

“The OFCCP’s evidence of discrimination in 2002-2005 boils down to one standard deviation of 4.0 (or 4.1) for the four-year period, but no standard deviation conclusions year by year.”

Similar to the ruling made in the Lopez v. City of Lawrence case, where aggregation of separate city applicant pools was rejected, the ARB discredited the aggregation of data across several years. Without evidence year by year, the aggregation of four years of data may be arbitrary and inappropriate. As noted by Jacobs, Murphy and Silva (2012)1, there are unintended consequences that may come from analyzing large databases, from which they coined the phrase “Being Big is Worse than Being Bad. This phrase refers to the increased chance of a statistical finding in a large dataset due to statistical power.

The BOA conclusion is noteworthy because it provides further guidance on conducting adverse impact analyses across multiple time periods, and supports the idea of pushing back against the arbitrary, multi-year data aggregation that may be used in analyses performed by the agency. Overall, employers need to be cautious when aggregating data and should consider it only under certain parameters. For additional background and corroboration on data aggregation, we recommend reviewing the Technical Advisory Committee Report on Best Practices in Adverse Impact Analyses.

Unrelated to the data aggregation issue, there have been other new developments in the BOA case. Stay tuned as the 23 year saga continues.

By Amanda Shapiro, Senior Consultant, and Vinaya Sakpal, HR Analyst, DCI Consulting Group 

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On March 15, 2016, The Wall Street Journal released an article focusing on the results of pay discrimination investigations carried out by the Office of Federal Contracts Compliance Programs (OFCCP) through their standard compliance review process. The author’s inquiry was informed by settlement outcomes, OFCCP activity measures, and interviews with experts in the field, including David Cohen with DCI. The article suggests that the agency’s results have been inadequate given the importance of their charge to address the wage gap.

After 7 years under Director Patricia Shiu, the article reports that OFCCP has had few results based on pay discrimination investigations. Between the start of 2010 and September 2015, the total relief funds collected by OFCCP equaled about $5 million. When compared to a single $5.5 million settlement collected under the Bush administration in 2004, pay discrimination settlements have notably decreased. This downward trend in settlements is also evident in that only 8 compliance reviews resulted in a pay discrimination settlement during fiscal year 2015, the lowest annual sum of pay cases thus far under this administration.

In defense of OFCCP’s results, Director Shiu said that the agency has made considerable changes that have required extensive training of personnel. She noted that the increased scope of audits has led to a more lengthy review of each audited contractor, which partially resulted from the rescission of the 2006 Standards and Guidelines and implementation of a new Directive. She also noted that the agency had a workforce overhaul, adding statisticians and compliance officers. Although not noted in the article, contractors may also recall that OFCCP rescinded the protocol of “Active Case Management”, replacing it with “Active Case Enforcement,” as well as implemented several new Executive Orders and revised regulations; all of which likely contributed to the extensive training mentioned.

OFCCP has received an increased budget for several years with a current $105 million annual budget, up from about $82 million in 2009. In spite of increased resources, OFCCP’s results have been underwhelming, which may call into question the methods utilized to investigate pay discrimination. Director Shiu stated that systemic compensation cases take time to develop and that the agency has many cases in the pipeline. It will be interesting to see what the remainder of the fiscal year brings.

By Jana Garman, Consultant, and Amanda Shapiro, Senior Consultant at DCI Consulting Group 

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The Scheduling Letter and Itemized Listing, reviewed and approved by the Office of Management and Budget (OMB), set the framework for what data are required to submit in a compliance review.  Specifically, item 18 in the Itemized Listing requires contractors to supply “data on your employment activity (applicants, hires, promotions, and terminations) for the immediately preceding AAP year”.  The submission of update data is only required if the contractor is 6 months or more into the current AAP year upon receipt of the Scheduling Letter.

In some recent audits the OFCCP is automatically requesting data 2 years back from the Scheduling Letter date, which would include not only data from the AAP period under review, but also data from before and after the AAP period. This type of time period expansion may or may not be in accordance with regulatory guidance.

There are situations where OFCCP may reasonably request data outside of the AAP data timeframe. For example, it is acceptable for the OFCCP to seek records for a 2-year period in accordance with the general record-keeping obligations. Also, the Federal Contract Compliance Manual mentions that it may take special circumstances, such as the appearance of potential discrimination, to warrant a review period beyond the Scheduling Letter date. The OFCCP’s position in Frito Lay v. OFCCP was that these requests can be made if under a continuing violation theory, assuming that a violation was identified. Unfortunately, a formal ruling was not made in this case, so there is no final decision on whether the OFCCP’s position is appropriate.  However, it is important to be aware of when this request may not be appropriate.

Here are some tips for responding to a request for data outside the elected AAP year or beyond the Scheduling Letter date:

  • If there are no statistical indicators at the job title/group level (i.e., no apparent violations), then this may warrant a discussion with OFCCP. A simultaneous action would be to ask OFCCP to reevaluate the original data and confirm results.
  • If there are statistical indicators (i.e., potential violations), ask OFCCP to identify the specific job titles/groups with a statistical indicator and limit the data request to those only for the AAP temporal scope.
  • Should the OFCCP persist with a 2 year request, then contractors can identify the regulations at §60-2.1(c). It states that AAPs must be updated annually. If the OFCCP does not identify a special circumstance and the contractor is expected to update personnel activity on an off-cycle basis to coincide with the Scheduling Letter date, then this would exceed the annually updated portion of the regulations and approved burden-hour estimates from OMB. Additionally, it would devalue the requirement to annually develop AAPs and identify problem areas.
      • To illustrate how providing additional information may present an issue, imagine that you had a January 1, 2015 AAP and received a scheduling letter on October 12, 2015. For the desk audit you submit your annual January 1, 2015 AAP and an update July 1, 2015 AAP. During follow-up requests the OFCCP requests data for three applicant job groups from October 12, 2013 through October 11, 2015 (i.e., 2 years back from the date of the scheduling letter). Although you did not see statistical indicators for the job groups requested when you proactively analyzed them, after submitting the 2 years of data to the OFCCP they indicate that there are indicators when analyzing the combined data. Given that this data is outside the temporal scope of your proactive AAPs, this indicator could not have been proactively identified.

In the past, requests for data outside the temporal scope of the audit have been rare; however, as noted above, DCI has seen this request several times in recent audits.

By Keli Wilson, Principal Consultant and Amanda Shapiro, Senior Consultant at DCI Consulting Group 

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Given the high prevalence of data security breaches and identity theft today, organizational leadership should be making the protection of their consumers’ and their employees’ confidential information a high priority. It is no surprise that federal contractors who are subject to OFCCP compliance reviews are employing more purposeful data protection strategies to ensure that their sensitive employee information remains secure when it is sent outside of the organization.

DCI recommends, at minimum, the following considerations when releasing data offsite:

  • Remove employee names and include an employee or generic ID instead. Do not include social security numbers.
  • Include a confidentiality disclaimer (e.g. “information not subject to FOIA”) when submitting information. Although items you provide are not covered under Attorney Client Work Privilege (ACWP), you should still mark them as confidential.
  • Password protect reports and zip files. Encrypt data (e.g. excel spreadsheets) or sensitive reports (e.g., background checks, criminal history checks, etc.).
  • If sending by mail, use an encrypted media device (e.g. flash drive) and request tracking information. While submitting information to OFCCP via encrypted flash drive may be one of the safer practices we mention, there is still a possibility that these small devices could get lost or stolen along the way.

We recommend that you hold an internal discussion with your EEO and legal experts to determine which option(s) makes the most sense for your organization and to ensure all employees responsible for these communications receive the appropriate training.

By Jeff Henderson, Associate Consultant and Amanda Shapiro, Senior Consultant

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Today, on the anniversary of the Lilly Ledbetter Fair Pay Act, President Obama will announce that the EEOC is proposing a pay equity report that will be added to the existing EEO-1 report. This proposed revision would require all employers with 100 or more employees to submit an annual report on pay data.  The first reporting cycle would be September of 2017.  Highlights include:

  • Reporting by EEO-1 category
  • 12 Salary bands within EEO-1 category
  • W-2 earnings
  • Hours worked

An announcement is expected later today and the official proposal to be published early next week. An advanced copy of the proposed revisions is available until the official document is available through the Federal Register. A copy can also be found using the following DCI page. Stay tuned for additional information from DCI as we dissect this report.

By Dave Cohen, President, and Amanda Shapiro, Senior Consultant at DCI Consulting Group

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Michael Aamodt, Principal Consultant at DCI Consulting Group, wrote an article featured in SIOP’s TIP publication, January 2017.

Recent Blog Posts

Pilgrim’s Pride: Three Administrative Complaints Dismissed

Between the periods of 2005-2007, OFCCP had several open compliance reviews with Pilgrim’s Pride Corp. establishments. In just the last month, three DOL administrative complaints for audits from this period were dismissed. Dismissals resulted from Pilgrim’s Pride bankruptcy filed in 2008.

In December of 2008, Pilgrim’s Pride declared bankruptcy, and proceeded through the process, effecting a bankruptcy plan in December of 2009. As part of the bankruptcy plan, the Court gave notice of Pilgrim’s Pride bankruptcy available to all relevant parties, requesting that all parties submit claims by June 2009. OFCCP filed a claim alleging discriminatory practices at Mount Pleasant and Lufkin, TX, factories in May of 2009. Pilgrim’s Pride then filed a Claims Objection Procedures Motion to OFCCP’s claims

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