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Brittany Dian

Brittany Dian, M.S.

Associate Consultant
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Brittany Dian is an Associate Consultant at DCI. In this role, she provides client support regarding EEO reporting, affirmative action planning, adverse impact analytics, diversity metrics, and OFCCP compliance. She also contributes to testing and validation efforts, and is involved in additional projects related to employment discrimination in selection and other personnel processes.

Prior to joining the DCI Team, Brittany received a Master of Science degree in Industrial/Organizational Psychology from Florida Institute of Technology and a Bachelor of Arts degree in Psychology from Saint Mary’s College with a minor in Mathematics. During her graduate studies, Brittany served as a Human Resources Intern for Brevard Zoo and as an Associate Consultant for the Center for Organizational Effectiveness where she contributed to projects related to employee engagement, training program development, and test validation. She was also actively involved in academic research with a particular emphasis on employment law, adverse impact, military culture and unit dynamics, and policies affecting women in the workplace.

Brittany Dian ’s Recent Posts

On Inauguration Day, the White House Chief of Staff, Reince Priebus, communicated President Trump’s plan for managing the Federal regulatory process, which places a temporary freeze on any new and pending regulations. This regulatory freeze is designed to ensure the President’s appointees have the opportunity to review a number of regulations formulated under the Obama administration before they go into effect.

Agencies have been instructed to hold off sending any new regulations to the Office of the Federal Register (OFR) until a new department or agency head appointed by the President has reviewed and approved the regulation. Few exceptions to this rule include regulations pertaining to certain emergency situations or urgent circumstances related to health, safety, financial or national security matters. Additionally, all regulations that have been published in the OFR but have not yet taken effect must postpone their effective date 60 days from January 20, 2017 to allow the incoming administration to review the facts, law, and policy they raise. Agencies and executive departments should also consider proposing further notice-and-comment rulemaking for any regulations that have been held up over legal questions. Agencies and executive departments must also continue to comply with any applicable Executive Orders concerning regulatory management.

The regulatory freeze is relatively common among incoming administrations, but does impact many new and pending labor and employment regulations, including the revised EEO-1 report that includes the pay component that goes into effect March 2018. Employers should therefore defer making changes to their current systems until the new administration finalizes and/or publishes any revised regulations at a later date.

By Vinaya Sakpal, HR Analyst, and Brittany Dian, Associate Consultant, at DCI Consulting Group

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Recent litigation against the Twin Peaks restaurant chain has sparked renewed interest in the BFOQ defense, and provides yet another example to employers that hiring practices involving the selection of individuals on the basis of protected characteristics (i.e., sex) face close scrutiny. As we have seen from previous cases involving Lawry’s and Hooter’s, it can be extremely difficult for companies to justify why or how an employee’s physical appearance satisfies the bona fide occupational qualification defense. Given that there has been minimal guidance from the courts on this issue, with most cases settling prior to trial, employers should demonstrate extreme caution in using sex, race, or national origin when making employment decisions.

DCI’s Dr. Michael Aamodt, Principal Consultant, wrote an article featured in SIOP’s January 2017 TIP publication. For those interested in additional information on lawsuits claiming sex as a BFOQ defense for restaurant servers, please see Really, I Come Here for the Food: Sex as a BFOQ for Restaurant Servers for the full featured story.

By Brittany Dian, Associate Consultant, DCI Consulting Group

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One day before the September 30 deadline for the 2016 EEO-1 filing season, the EEOC put out a press release announcing that changes to the EEO-1 report have now been finalized. The changes were initially proposed in February, and have since undergone two public comment periods, with minor updates resulting in each.

The final rule has not yet been published in the Federal Register, but the EEOC has published several online resources, including the new EEO-1 Report form, a Small Business Fact Sheet, and a Q&A.

Some notable changes:

  • There will be no EEO-1 report filed during the 2017 calendar year. The 2017 EEO-1 survey must be submitted and certified by March 31, 2018.
  • Employers will now select a payroll period between October 1 and December 31 for their snapshot (previously July 1 through September 30).
  • Previously, employers reported within the 10 EEO-1 categories. Now each EEO-1 category will be separated into 12 EEO-1 pay bands.

Employers who have not yet filed their 2016 EEO-1 reports should send an email with their company number to E1.EXTENSIONS@EEOC.GOV immediately to request a 30-day extension. No extensions will be granted after October 30th.

By Dave Sharrer, Consultant and Brittany Dian, Associate Consultant at DCI Consulting Group

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The deadline for filing your 2016 EEO-1 reports is right around the corner on September 30. At this time, federal contractors and subcontractors with 50 or more employees and a contract amounting to $50,000 or more need to ensure that reports are filed on time and in an accurate format. It is important to note that EEO-1 reports are the engine for the Federal Contractor Selection System (FCSS), a neutral selection system that identifies federal contractor establishments for compliance evaluations. For this reason, it is imperative for contractors to ensure correct reporting, including accurate employee counts and demographic information for EVERY company location.

The definition of establishment for EEO-1 purposes differs slightly from the definition used for AAP purposes. For example, EEO-1 reports need to be filed for each physical establishment, and there are different types of reports that should be filed depending on the size of the location. Despite these differences, however, contractors should attempt to ensure location consistency to the greatest extent possible to avoid confusion in the event that the OFCCP were to select a location for audit that should not be subject to a compliance review.

If you need further assistance on filing your EEO-1 reports, please refer to the EEO-1 FAQs or reach out to your DCI Consultant. To request a one-time 30-day extension, please send an email to E1.EXTENSIONS@EEOC.GOV . This one-time 30-day extension will be granted after an email has been sent, so there is no need to wait for a response from the EEO-1 Joint Reporting Committee confirming this. However, please note that no extensions will be granted after October 30. At the completion of the 2016 reporting cycle, contractors will not be required to file the next round of EEO-1 reports until March of 2018 for calendar year 2017 given the addition of the EEO-1 Pay Component.

By Brittany Dian, Associate Consultant, and Vinaya Sakpal, HR Analyst at DCI Consulting Group

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What’s Happened So Far?

In February 2016, the EEOC announced proposed changes to EEO-1 reporting that would require all employers with 100 or more employees to report annual pay data (i.e., W-2 earnings and hours worked) by 12 salary bands, in addition to the already required race/ethnicity and sex data by EEO-1 category. The proposed reporting requirements were slightly revised after a public hearing held by the EEOC in March and public comments submitted in April 2016. Although many criticisms and concerns raised by The OFCCP Institute, including the use of W-2 data, burden estimates, data confidentiality, and the proposed use of the data, were largely unaddressed, the EEOC did make one major change to the revised proposal by shifting the deadline of filing the new EEO-1 report to March 31 so that employers can use W-2 information compiled for tax purposes.

Summary of Comments on the Revised EEO-1 Pay Component

In July 2016, the EEOC published the updated EEO-1 pay data reporting proposal and announced a second public comment period that concluded on August 15th. In response to this final public comment period, The OFCCP Institute submitted comments for a second time, re-addressing  many of the same concerns outlined previously, including those regarding burden estimates and the use of W-2 pay data.  The OFCCP Institute also raised a new concern regarding the schedule of VETS-4212 reporting. In the revised EEO-1 proposal, the EEOC discusses in footnote 49 that contractors who also file annual VETS-4212 reports are in a position to align their VEVRAA data collection activities with the new EEO-1 reporting period. Essentially, the proposal states that contractors can use the same “workforce snapshot” period between October 1 and December 31 for their VETS-4212 reports. This would allow contractors to use December 31st as their workforce snapshot date, and also as the end date of the covered 12-month period for their VETS-4212 filing. However, it remains unclear whether the September 30th reporting deadline for VETS-4212 will also change to March 31st to coincide with the deadline for revised EEO-1 report. In their comments to the EEOC, the OFCCP Institute requested that the VETS-4212 reporting deadline of September 30th be formally changed to March 31st so that both reporting obligations fall on the same schedule.

The final rule regarding the EEO-1 reporting changes is anticipated as early as next month. Please stay tuned as DCI continues to provide updates to our clients and stakeholders on this subject.

By Brittany Dian, Associate Consultant, and Vinaya Sakpal, HR Analyst, at DCI Consulting Group

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The filing period for the 2016 EEO-1 and VETS-4212 reports is quickly approaching, and the 2016 Survey for EEO-1 reports is expected to open at some point next week. Companies will then have until September 30th to complete these annual filing requirements.

Starting today, the EEO-1 Joint Reporting Committee (JRC) has been informing organizations that all reporting for the EEO-1 reports will now be done electronically, meaning that you will no longer be required to email your datafile directly to a member of the EEO-1 JRC. This is especially useful for contractors who had many locations and utilized the datafile upload process in the past, which required the contractor to send their data file via email to representatives at the EEO-1 JRC.  By uploading your datafile directly to the production database according to the JRC’s specifications, you will be immediately informed of your acceptance or of any errors regarding the submission. This means that you will no longer have to wait for confirmation that your datafile has been successfully uploaded via email.

According to the JRC, the electronic datafile submission process is designed to improve your overall reporting experience, reduce the overall burden, and increase the transparency by showing you issues in “real time”. Please note that your 2015 password will not work for the 2016 filings for EEO-1 or VETS-4212 reports, so please ensure that you have reset your VETS-4212 password for this filing cycle if it has not already been completed. For EEO-1 reports you should receive password notification from the EEO-1 JRC.

As a reminder for VETS-4212 filings:

  • Contractors should be reporting on all employees and annual hires under VETS-4212 regardless of whether or not they have self-identified protected veteran status. Even those who have chosen to provide no response at all should be accounted when reporting numbers for total employment and hiring.
  • VETS-4212 reports require only aggregate-level reporting on protected veterans hires and employees. Additionally, under VETS-4212 reporting, individuals identifying with multiple protected veteran categories should be counted only once. If you are having trouble determining protected veteran status, please refer to the OFCCP’s updated infographic for further clarification.

As we continue to move toward the annual filing deadline of September 30th, please stay tuned for additional updates, reminders, and guidance with regard to these annual filings.

By Brittany Dian, Associate Consultant, and Joanna Colosimo, Associate Principal Consultant at DCI Consulting Group 

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The 31st Annual Conference for the Society of Industrial and Organizational Psychology (SIOP) was held April 14-16, 2016 in Anaheim, California. This conference brings together members of the I/O community, both practitioners and academics, to discuss areas of research and practice and share information. Many sessions cover topics of interest to the federal contractor community, including employment law, testing, diversity and inclusion, big data, and regulations for individuals with a disability. DCI Consulting Group staff members were well represented in a number of high profile SIOP presentations and also attended a variety of other sessions worth sharing. Notable session summaries and highlights can be found below.

 

Beyond Frequentist Paradigms in Legal Scenarios: Consideration of Bayesian Approaches

High-stakes employment scenarios with legal ramifications historically rely on a frequentist statistical approach that assesses the likelihood of the data assuming a certain state of affairs in the population. This, however, is not the same as the question that is usually of interest, which is to assess the likelihood of a certain state of affairs in the population given the data. This session explored the use of a Bayesian statistical approach, which answers the latter question, across different high-stakes employment scenarios. In each of the presented studies, data were simulated and analyzed, and results between the Bayesian and frequentist approaches compared:

  • David F. Dubin, Ph.D., and Anthony S. Boyce, Ph.D., illustrated the application of Bayesian statistics for identifying selection test cheaters and fakers.
  • Chester Hanvey, Ph.D., applied a Bayesian approach for establishing whether jobs are correctly classified as exempt in wage and hour questions.
  • Kayo Sady, Ph.D., and Samantha Holland, Ph.D., demonstrated the advantages of a Bayesian analysis in compensation scenarios with difficult-to-detect subgroup differences.

In each of the studies, the results suggested the utility of a Bayesian analysis in some specific circumstances. Overall, the presenters agreed that the Bayesian analysis should supplement more traditional frequentist analyses and noted specific issues to consider when designing these analyses. Given the lack of legal precedent and difficulties introducing a new set of statistical interpretations into the courtroom, the takeaway was that the best current value-add for Bayesian approaches is in proactive, non-litigation applications.

 

Contemporary Issues in Occupational Credentialing

The opportunity for credentialing or micro-credentialing is ever increasing, with credentials popping up in many professional fields that previously had none. What it takes to develop and maintain these credentialing exams, however, is something that many people know little about. In this session led by Samantha Holland (DCI), panelists from both private and public sector credentialing programs shared their experiences with issues such as maintaining test security, developing test content, and establishing validation evidence for their exams. Some highlights are noted below:

  • John Weiner, from PSI, noted the many security aspects to consider when administering exams online, a situation that requires additional measures beyond those described by other panelists.
  • Rebecca Fraser, from the Office of Personnel Management, shared her experience using methods beyond practice analysis to establish the content domain for specialized, low sample size domains.
  • Lorin Mueller, from the Federation of State Board of Physical Therapists (FSBPT), discussed the need for clearer boundaries when it comes to regulation of certification boards: the line between what is good for a profession, and what is good for business, can sometimes become blurred.
  • Alex Alonso, from the Society of Human Resource Management (SHRM), provided his experiences of building a certification program from the ground up for his organization’s newly minted HR certification program.

 

A View from the Trenches: EEOC/OFCCP Practitioner Update

DCI’s Joanna Colosimo moderated this panel, featuring DCI’s Mike Aamodt, Michelle Duncan of Jackson Lewis, Eyal Grauer of Starbucks, and David Schmidt of DDI, providing an update on recent regulatory changes, enforcement trends, and other topics related to compliance.

In fiscal year 2015, the OFCCP completed fewer compliance evaluations, but the duration of audits has increased as a result of the revised scheduling letter and more in-depth follow-up requests, particularly related to compensation. The panel also discussed the increase in steering allegations and settlements where whites and/or males were the alleged victims of systemic hiring discrimination.

Dr. Aamodt spoke about two hot topics: the EEOC’s proposed pay data collection tool and the use of criminal background checks for employment decisions. With regard to the EEO-1 pay data collection tool, he highlighted the burden of reporting pay data for 10 EEO-1 categories, 12 pay bands, 7 race/ethnicity categories, and 2 sex categories, as well as some of the limitations of using W-2 data. Additionally, he discussed how difficult it would be for the EEOC to use the resulting data to identify pay issues. For employers using criminal background checks, Dr. Aamodt recommended that contractors adopt narrowly-tailored policies that consider the nature of the offense, the duration of time since the offense, and the nature of the job being sought.

 

Strategically Evaluating Outreach for Individuals with Disabilities and Veterans

This session presented research conducted by DCI’s Kristen Pryor, Rachel Gabbard, and Joanna Colosimo to investigate best practices amongst federal contractors in complying with the 503-VEVRAA formal evaluation of outreach and recruitment obligations. Representatives from 77 federal contractor organizations provided survey feedback on current methods and prospective strategies for evaluation. Results identified strategies such as tracking resource specific metrics on qualified referrals and hires as well as ROI analysis for evaluating the success of outreach efforts. Results also suggest general frustration among federal contractors due to insufficient and ambiguous regulatory guidance on this requirement. The full white paper is available here. In addition, DCI will be conducting follow-up research in the near future to determine if further progress has been made in this area, now that the regulations have been in effect for over two years.

 

No Longer an Afterthought? Reasonable Alternatives and Title VII Litigation

DCI’s Emilee Tison moderated this session where panelists discussed their perspectives and experiences related to identifying and evaluating reasonable alternatives. Panelists included Winfred Arthur, Jr (Texas A&M Univ.), Theodore Hayes (FBI), James Kuthy (Biddle Consulting Group, Inc.), and Ryan O’Leary (PDRI, a CEB Company).

Discussion topics included:

  • The Uniform Guidelines text related to the “reasonable effort” in identifying alternatives with “equal” validity and “lesser” adverse impact
  • Strategies for identifying and considering alternatives, including the impact this will have on two selection goals: validity and diversity
  • The potential impact of recent case law on discussions of reasonable alternatives
    • Lopez v. City of Lawrence, 2014
    • Johnson v. City of Memphis, 2014
    • Documenting a consideration of alternative selection procedures

Panelists ended the session with a few parting words, including:

  • Clearly identify what you are considering an alternative
    • Note that not all alternatives are created equally
    • Put in the effort to identify and document your search for alternatives
    • When documenting alternatives, steer clear of ‘stock language’ by providing justification for your choice(s)

 

Competencies and Content Expertise for I/O Psychology Expert Witnesses

In light of recent developments in case law and updated regulatory guidance, panelists provided competencies and strategies for expert witness testimony, focusing on three main topics: social framework analysis (SFA), new measures for test validation, and wage and hour concerns related to revised FLSA regulations on exempt status employees. Panelists included DCI’s Eric Dunleavy and Arthur Gutman, in addition to Margaret Stockdale of IUPUI, Cristina Banks of Lamorinda Consulting, Caren Goldberg of Bowie State University, and David Ross of Seyfath Shaw.

The goal of SFA as it relates to expert witnesses is to educate the court and jury on the processes underlying cognitive bias and other socially constructed concepts like gender inequality. Panelists cited the 2011 Supreme Court case of Walmart v. Dukes as a prime example of applying SFA methodology to diagnose discrimination in personnel practices. Although SFA has been met with some criticism, it can be said that there is a certain degree of subjectivity in many employment processes that have the potential to lead to discrimination. For this reason, experts are encouraged to look at seemingly neutral factors that may have a disproportionate impact on members of a protected group.

Shifting focus to standards regarding test validation, panelists commented on the outdated nature of the Uniform Guidelines on Employee Selection Procedures (UGESP), which have not been updated in nearly 40 years.  Although the panel was not aware of any initiatives to update the guidelines, it was noted that several SIOP representatives have met with the Equal Employment Opportunity Commission (EEOC) regarding the guidelines and other topics of mutual interest. Panelists also advised the audience to rely on both the SIOP Principles and APA Standards as supplemental, more contemporary resources regarding test validation standards. Additionally, SIOP will be publishing a white paper on minimum qualifications and adverse impact analyses that addresses data aggregation concerns and other testing considerations.

The final topic discussed focused on wage and hour issues concerning the revised FLSA regulations. The panel discussed the difficulties that many employers face in accurately classifying jobs as exempt or non-exempt, and also when determining whether independent contractors should be considered employees. It was recommended that job analyses be done for individual positions, rather than general ones, to help determine exempt status and how much time is spent doing each type of work. Employers should also be aware of any differences regarding state law.

 

Opening the “Black Box”: Legal Implications of Big Data Algorithms

The subject of “big data” has become a hot topic as access to increasingly large amounts of data provides employers with new opportunities to make informed decisions related to recruitment, selection, retention, and other personnel decisions. However, “data scientists” often overlook the legal implications of using big data algorithms within an employment context, especially when it comes to employee selection. Panelists discussed several issues emerging from the use of big data algorithms, including the potential for discrimination, Title VII consequences, and strategies for mitigating risk.

As suggested by DCI’s Eric Dunleavy, many of the “big data” models really do not differ from empirically keyed biodata, which is not a new concept. What is new are methods of collecting larger amounts of data from new sources. Like empirically keyed biodata, big data can be very effective in predicting work-related outcomes. However, if the employer cannot explain how the algorithm works or illustrate that it is job-related, it may be difficult to justify use of the algorithm if facing a legal challenge.

In addition to traditional adverse impact concerns related to women and minorities, some big data techniques may have the potential to discriminate against other protected groups. For example, one panelist mentioned a computer program that can automatically score an applicant’s body movements and analyze vocal attributes from a video recording of an interview. Several other panelists noted that certain body movements or vocal attributes may be related to protected class status, in particular individuals with disabilities. The main takeaway here is that if an employer is using data algorithms, it is imperative that they not only validate the model, but also understand how it is making decisions.

 

Big Data Analytics and Employment Decisions: Opportunities and Challenges

In this session, speakers highlighted the increasing popularity of the use of big data techniques (e.g., machine learning) within organizations to predict work outcomes , pointing out both benefits and challenges inherent to these approaches.

As one example of a big data “win”, Facebook’s David Morgan described how data collected on the current workforce can be used to identify employees at risk of turnover. More caution is required, however, when using big data to inform selection decisions. Many big data algorithms are essentially “black boxes”: data goes in and results come out with little transparency of the how or the why. Not being able to explain the “why” makes these approaches very difficult to defend in court. Rich Tonowski, representing the EEOC, advised that companies be knowledgeable and comfortable with the process being used as the agency will obtain access to the algorithm. Similarly, companies should be able to explain how the information being used is job-related, especially when data have been mined from social media or other Internet sources.

A final caveat was that machine learning tools may use data that is correlated with protected-class status in some way.  Dave Schmitt of DDI suggested one way to test for this is to determine if the model can predict the race or sex of applicants. If so, then it may be subterfuge for discrimination. This may be especially compounded by the “digital divide,” where minorities may be less likely to have regular access to the Internet due to lower socio-economic status.

 

Applied Criterion-Related Validation Challenges: What We Weren’t Taught in Textbooks

This panel, which included DCI’s Art Gutman, discussed a variety of challenges faced when working to conduct criterion-related validation studies for client organizations. Challenges included study design issues, data collection problems, determinations regarding appropriate analysis, and meeting reporting requirements. Specifically, presenters discussed the criteria problem (obtaining appropriate and accurate measures of job performance), problems with predicting low base rate events, issues of range restriction and the appropriateness of applying corrections, among others. The panelists hypothesized that upcoming issues in criterion validation will include dealing with big data (“messy predictors”), processes for validating non-psychometric assessments, addressing validity equivalence (or lack thereof) in multi-platform or mobile assessments, and the eventuality of court cases evaluating validity generalization.

 

Implications of Revisions to FLSA Exemptions for Organizations and Employees

In this session, a panel of experts provided insights on the proposed changes to the FLSA exemption criteria.  The panel discussed the salary test for exemption, which would increase from $455 a week to the 40th percentile of weekly earnings for full-time salaried workers (estimated at $970 for 2016) and the implied potential changes to the job duties test. Regarding the salary test, panelists agreed that a change is overdue. However, they argued that a phased approach would be more appropriate and that the regulation should not be set at a dollar value, but instead aligned to a value that will allow it to stay in line with inflation. The NPRM’s discussion of the job duties test did not propose a change, but asked for feedback on whether a quantitative threshold, like the 50% “primarily engaged” test in California, should be implemented. The DOL estimated that approximately 20% of exempt employees would be impacted by the salary changes alone. Implications for employers are staggering, especially in light of the potential for a 60 day implementation window. First, employers must assess the extent to which they are comfortable with their exempt/nonexempt classifications and reasoning and plan to re-evaluate where needed. Second, budgeting and cost scenarios for moving exempt positions to non-exempt, realigning duties, or increasing pay should be evaluated. Finally, internal messaging and communication plans should be in place to outline the changes, reasoning, and any new procedures.

 

Novel Approaches for Enhancing Diversity Training Effectiveness in the Workplace

In this session, four different presenters provided insights on diversity training. Three presented information from academic research, and one presenter provided information from an organization context. A full 67% of organizations provide some form of diversity training, though research into the impact of that training on the job is varied. One series of studies found that individuals who are high in social dominance orientation (e.g., high preference for hierarchy in a social system and dominance over lower-status groups) tend to be more resistant to diversity training, but that this resistance can be mitigated when the training is endorsed by an executive leader. Another series of studies found that men are more likely to place importance on gender issues addressed when those issues are put forth by other men, and that this holds in both written context and in-person contexts. A Google employee presented on the training Google has implemented as part of new hire on-boarding on implicit or unconscious biases. The training focuses first on increasing awareness and understanding of the topic, to provide a common language, and initial suggestions for mitigation. Follow-up training has focused more on role playing type scenarios to cement the behavior change and mitigation aspect, increasing employee comfort level with calling out biases when and where they are observed.

 

Why Survey Data Fail – and What to Do About it

Panelists discussed their experiences conducting surveys, times when things went wrong, and recommendations for a successful survey. Anyone can use and develop a survey, but issues can arise when multiple stakeholders are involved, each with a different opinion. For this reason, it is important to communicate the purpose of the survey and how the results will be used. Branding can be beneficial to help develop awareness, generate interest, and increase participation. Positive changes implemented based on survey results can also lead to increased participation the following year. Additionally, it is important to research any null or opposite findings between survey iterations to give you a better understanding of any issues that may be present within your organization.

Panelists also addressed problems they have encountered when implementing results, including trying to do too much with the findings, or slicing the data so many ways that your results become less reliable. It was also emphasized that results should be presented in a way that leaves little room for subjective interpretation to avoid making conclusions that are not supported by the data.

Finally, the panel provided a few recommendations for a successful survey:

  • Make responding easy
  • Get people excited about data by telling a good story
  • Provide insights and summaries when reporting results
  • Make an effort to understand your audience in order to keep participants engaged year after year

 

Can Technology Like Deep Learning Eliminate Adverse Impact Forever?

This debate-style session posed the question of whether or not big data techniques (specifically deep learning or machine learning) could/should be used to eliminate adverse impact during selection. The panel included data scientists and I/O psychologists to present their perspectives. The I/O psychologists opposing this technique – including DCI’s Emilee Tison – presented the following high-level points:

  • The identification of adverse impact alone is not synonymous with illegal discrimination
    • The blind elimination of it may eliminate meaningful differences that exist due to legitimate job-related factors – impacting the validity of the selection procedure
    • Adverse impact is the prima facie standard for a disparate impact case; however, procedures that produce adverse impact have two additional considerations:
      • The job relatedness or business necessity of the procedure
      • The consideration of reasonable alternatives
  • Making selection decisions based on protected class status is illegal according to the CRA 91 and, as supported in recent case law, selection decisions should not be based on adverse impact alone (Ricci v. DeStefano, 2009)
  • Data scraping techniques – that learn and pull in factors to use in predicting important outcomes (such as information from Facebook) – call into question the job-relatedness of the selection procedure

In summary, the panelists came from very different perspectives and foundational knowledge bases; however, it was the start of what hopefully becomes meaningful cross-discipline dialogue.

 

 

By: Kayo Sady, Senior Consultant; Samantha Holland, Consultant; Brittany Dian, Associate Consultant; Dave Sharrer, Consultant; Kristen Pryor, Consultant; Rachel Gabbard, Associate Consultant; Joanna Colosimo, Senior Consultant; Emilee Tison, Senior Consultant; and Bryce Hansell, Associate Consultant at DCI Consulting Group 

 

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Over the past six months, DCI has continued to monitor OFCCP enforcement trends and priorities regarding compliance evaluations in FY 2016. In our 2015 blog we noted a reduction in the number of new audit scheduling letters received throughout 2015, and only seven settlements resulted in press releases during the January through September time-frame. As predicted, we are seeing a similar pattern with fewer, more thorough audits.  This is evident by the increase in the amount of data requested by OFCCP in the initial submission and far more extensive follow-up requests than we have seen in the past. There have been a total of seven settlements with press releases since October 2015.

In 2016, OFCCP has continued its focus on pay discrimination, failure-to-hire cases and steering allegations involving both males and females as well as whites and minority subgroups as protected classes. A total of 133 conciliation agreements have resulted in 14 financial settlements totaling upwards of $2.6 million, the majority of which stems from the G&K Services systemic hiring and pay discrimination settlement of roughly $1.8 million. There have also been a total of 48 complaints filed that have resulted in two findings of discrimination – both relating to discrimination on the basis of disability status.

The table below highlights the first six months of OFCCP’s FY 2016 activity:

Region

Reviews Closed

Conciliation Agreements

Financial Agreement

Settlement Amount

OFCCP Allegation (Impacted Group)

Mid-Atlantic

67

13

0

$0

Midwest

128

39

3

$705, 477
  • Failure to Hire (Men)
  • Steering (Women)
  • Failure to Hire (Women)

Northeast

81

19

1

$181,000

  • Failure to Hire (Women, African Americans, Asians)

Pacific

144

39

1

$92, 580

  • Steering (Women)
  • Failure to Hire (African Americans, Asians, and Whites)

Southeast

94

18

4

$293, 932

  • Did not comply with requirements mandated for federal contractors
  • Failure to Hire (Women, African Americans)

SWARM

89

5

5

$1,367,558

  • Failure to Hire (Men, African Americans)

Grand Total:

603

133

14

$2,640,547*

 

 

*Nearly 70% of the total settlement amount came from the G&K settlements in the Midwest, Pacific, Southeast and SWARM regions

As OFCCP maintains its stance on active case enforcement through 2016, contractors need to take extra care in conducting self-audits of their selection procedures and pay systems to ensure they are nondiscriminatory. In the event of an audit, contractors will want to consult with their EEO and legal experts to determine the appropriate information to submit to OFCCP.

 By:  Brittany Dian, Associate Consultant, and Jeff Henderson, Associate Consultant, DCI Consulting Group

 

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In addition to the federal government’s national focus on the gender pay gap, individual states have recently been furthering their own agendas for addressing sex disparities in pay as well. Amendments to fair pay laws in both California and New York took effect in January 2016, increasing protections against sex-based wage discrimination. Since then, additional states have followed suit and taken steps to advance equal pay by signing into law more stringent standards for pay equity.

For example, governors in Connecticut, Missouri, Delaware, and Oregon have supported measures aimed at narrowing the gender wage gap by increasing the employer burden to justify pay disparities through non-work related defenses. Both Massachusetts and New Jersey have also passed bills through their Senates to increase protections that are now being considered by their Houses. Both include prohibition of discrimination based on performance of similar work, following the lead of the standards set in California.

Although the majority of states already have equal pay laws in place, this recent trend in amending toward more rigorous standards is important for employers to monitor. With this heightened focus on pay discrimination, it is increasingly critical for all employers to be proactive in analyzing compensation and explaining pay disparities in accordance with relevant state regulations.

By Jana Garman, Consultant, and Brittany Dian, Associate Consultant at DCI Consulting Group 

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As contractors prepare for 2016, we want to share some reminders on what to be prepared for in the New Year with the OFCCP and EEO compliance. 

1.)    First full year of 503/VEVRAA analytics under Subpart C

Contractors were required to come into compliance with Subparts A, B, D, and E on March 24, 2014, and Subpart C prior to the contractor’s next AAP cycle after March 24, 2015. For example, those contractors with January AAP dates will be analyzing the collected disability and veteran self-identification information for the first time with their January 1, 2016 AAP.

2.)    Release of the Sex Discrimination Guidelines

The OFCCP released the Notice of Proposed Rulemaking (NPRM) on January 28, 2015.  DCI has previously made some predictions about the NPRM and final rule, and the impact it will have on contractors. The long-awaited Final Rule of the Sex Discrimination Guidelines was expected to be released by the end of 2015, but DCI now anticipates it to be issued in early 2016. Stay tuned for a DCI blog alert when it is finally released to the public.

3.)    Pay Transparency

The Final Rule took effect January 11, 2016, and promotes pay transparency by prohibiting federal contractors and subcontractors from discharging or otherwise discriminating against employee or job applicants for discussing, disclosing, or inquiring about compensation.  You can view the Final Rule, frequently asked questions, fact sheets, and other helpful resources on the OFCCP’s Pay Transparency Web page at www.dol.gov/ofccp/PayTransparency. DCI clients are provided with a robust checklist, sample policies, and cases as a courtesy.

4.)    Compensation – Still a priority

Compensation remains a hot-button issue and key focus area for the OFCCP when conducting compliance evaluations. For this reason, contractors should ensure that they are conducting required analyses of their compensation system on an annual basis to determine whether sex-, race-, or ethnicity-based disparities exist. Keeping in line with trends observed in 2015 under Item 19 of the Scheduling Letter and Itemized Listing, we expect the OFCCP to regularly request multiple forms of compensation during the compliance evaluations, and contractors should be prepared to submit this information.

5.)    California and New York employers: Fair pay laws in effect

Amendments to fair pay laws in both California and New York took effect in January 2016. These laws were designed to strengthen protections against sex-based wage discrimination and provide for bona fide factors other than sex to explain wage differentials. With a heightened focus on pay discrimination, it is imperative that California and New York employers continue to place great emphasis on their proactive compensation analyses to ensure that any unexplained differences in pay are uncovered and addressed.

By Joanna Colosimo, Senior Consultant and Brittany Dian, Associate Consultant at DCI Consulting Group

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