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David Cohen

David B. Cohen, M.S.

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David Cohen is the founder and President of DCI Consulting Group, Inc. He provides consulting services to employers and management law firms on a wide range of human resource risk management strategies, particularly in the areas of EEO/affirmative action program development, systemic compensation statistical analyses, comprehensive human resources self-audits, and employee selection and test validation.

In addition, Mr. Cohen is the Senior Vice President for The Center for Corporate Equality and co-founder of The OFCCP Institute, a national nonprofit employer association that trains and educates federal contractors in understanding and complying with their affirmative action and equal employment obligations.

Recognized as a national EEO and affirmative action compliance expert, Mr. Cohen speaks frequently before corporate leaders from Fortune 500 companies, and at regional and national ILG conferences and OFCCP events. In 2006, he co-authored a book entitled “Understanding Statistics: A Guide for I/O Psychologists and Human Resource Professionals,” which was published by Wadsworth. Mr. Cohen is also the Associate Editor of the Applied HRM Research.

He also created DCI’s HR Equator™salary equity software, which enables companies to conduct systemic and other compensation analyses to comply with OFCCP and EEOC requirements.

Mr. Cohen has a M.S. degree in Industrial and Organizational Psychology from Radford University and B.A. degree in Psychology from West Virginia University. He is also an adjunct faculty member at the University of Maryland Baltimore County at Shady Grove.

David Cohen ’s Recent Posts

On February 16, Alexander Acosta, Dean of Florida International University (FIU), was nominated for Secretary of Labor, after the first nominee Andrew Puzder withdrew his nomination a day before his confirmation hearing. Mr. Acosta has a vast amount of knowledge and experience in labor and employment law, as evidenced through his work with the Department of Justice (DOJ) and National Labor Relations Board (NLRB).

While serving on the NLRB from 2002 through 2003 under President George W. Bush, Acosta participated in or authored more than 125 legal opinions. After his time at the NLRB, Acosta went on to serve as the Assistant Attorney General for the Civil Rights Division of the Department of Justice from 2003 through 2005, another appointment by President George W. Bush. He was the first Hispanic to serve in that role. During his time with the DOJ, the department was involved in several systemic discrimination cases, including the famous Cracker Barrel case in 2004. In this lawsuit, the restaurant chain was accused of adopting racially discriminatory serving practices against African-American customers. Cracker Barrel settled the case on May 3, 2004. He left the DOL in 2005 and went on to serve as U.S. Attorney for the Southern District of Florida until 2009, after which he joined FIU.

Another noteworthy fact about Mr. Acosta is that he has spoken several times on protecting the civil rights of American Muslims. He is also very familiar with OFCCP and appears to be very pragmatic in his legal opinions and other involvements so far.  For example, he was a signatory on the recordkeeping requirements rule of Uniform Guidelines on Employee Selection Procedures. This rule aimed to provide additional guidance on who should be considered an ‘applicant’ for adverse impact analysis in the internet era.

Acosta has the pedigree and experience to be an excellent Secretary of Labor.  We expect his confirmation to be swift.

By Vinaya Sakpal, HR Analyst, and David Cohen, President, at DCI Consulting Group

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DCI has confirmed with OFCCP that a new round of CSAL letters were officially mailed as of February 17th. The letters were sent directly to establishments and “Frequently Asked Questions” resources have been updated on the Department of Labor’s website regarding the FCSS and CSALs.

Specifically, in referencing OFCCP’s CSAL and FCSS FAQs, we note the following new or revised FAQs:

  • Will the corporate headquarters of establishments on the scheduling list receive a CSAL?
    • No. CSALs are mailed to all establishments identified on the scheduling lists developed for a given scheduling cycle. Unlike previous years, OFCCP will not send notice to a corporation’s headquarters. Instead, the CSAL directs the establishment to forward the notice to corporate headquarters, if such is corporate policy.

Unlike previous years, OFCCP will not send notices to a corporation’s headquarters. CSALs will be mailed directly to all establishments on the scheduling lists with the direction that these notices be forwarded on to corporate headquarters. Other FAQs include:

  • How many establishments are on the current Scheduling List?
    • There are a total of 800 establishments on this first release of the FY 2017 Scheduling List.
  • How many industries are represented on the current Scheduling List?
    • Based on the 2–digit NAICS code, the first release of the FY 2017 Scheduling List covers 29 industries.
  • How many companies are represented on the current Scheduling List?
    • 375 distinct companies are represented on the first release of the FY 2017 Scheduling List.
  • How many Corporate Management Compliance Evaluations (CMCE) are included in the current Scheduling List?
    • The first release of the FY 2017 Scheduling List includes 30 CMCEs.

It’s important to note that 800 letters were sent, but those letters are only covering 375 companies. This means that some companies will receive multiple letters for multiple establishments. It’s also important to note that organizations may receive a corporate management evaluation letter at their headquarter facility. DCI is trending the 29 industries that are receiving CSALs and will provide updates as we learn more.

One additional point worth mentioning is that OFCCP clarified that a contractor’s establishment may be selected for a review outside of those listed on the CSAL by a Directed Review. The FAQ states that “these compliance evaluations may be scheduled by OFCCP when it receives credible information of an alleged violation of a law or regulations the agency enforces, including those deriving from individual of class complaints filed with the EEOC, or state or local fair employment practices agencies (FEPAs) that allege employment discrimination covered under the laws that OFCCP enforces.”

Corporate compliance officials should contact local HR representatives at their company’s facilities to ensure they are aware a letter from OFCCP may be coming in the next few days. Additionally, they should be aware that there may be a CMCE letter coming to their corporate headquarters.

By Rachel Monroe, HR Analyst; David Cohen, President; and Joanna Colosimo, Director of EEO Compliance, at DCI Consulting Group 

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As most of our blog readers are aware, the final FAR rule and DOL guidance was published in the Federal Register on August 25, 2016 implementing President Obama’s issued Executive Order 13673: Fair Pay and Safe Workplaces (FPSW). Although the goal behind this executive order was to “blacklist” organizations with a history of violating labor and employment laws from obtaining new government contracts, it appears, based on the final rule, that the FPSW was designed more to allow OFCCP to coerce current contractors into signing conciliation agreements than it was to prevent actual discrimination.

Perhaps the best example of this motivation is the difference in how the FPSW classifies conciliation agreements as non-arbitral decisions compared to show cause notices (SCNs) which are arbitral decisions: conciliation agreements do not count against a contractor but SCNs do.  Let’s compare two hypothetical contractors. Contractor A has engaged in intentional discrimination against women at five of its establishments.  Rather than go to court, it enters into five separate conciliation agreements with OFCCP, each for $250,000.

Contractor B is accused by OFCCP of pay discrimination against women at two of its AAP establishments. The company vehemently denies the allegation and provides statistical and anecdotal proof that the group differences in pay at both establishments can be explained by variables such as time-in-job and prior related experience. OFCCP refuses to accept the contractor’s analysis and issues an SCN at each establishment. Two years later, OFCCP and Solicitor of Labor’s office determine that the case is without merit and OFCCP closes the review with a closure letter of compliance. Eighteen months after the conciliation agreements and SCNs, both contractors bid for the same contract.  Contractor A, which entered into five separate conciliation agreements, is considered by the contracting officer to have no reportable violations in its record whereas Contractor B, which denies any wrongdoing and was never found in violation, has two reportable violations on its record.

This policy also appears inconsistent with the criminal history guidelines issued by both EEOC and OFCCP.  That is, an applicant’s arrest record (e.g., a contractor’s SCN) should not be used in a hiring decision, but convictions or confessions (e.g., a contractor’s conciliation agreement) can.  The rationale behind not using an arrest record is that an arrest does not account for due process; in other words, it is not a final determination by a neutral judge or jury of guilt or innocence.  An SCN is almost equivalent to an arrest; it does not necessarily mean the contractor has been granted due process with a final determination of a neutral party.

By David Cohen, President; Mike Aamodt, Principal Consultant; and Joanna Colosimo, Associate Principal Consultant at DCI Consulting Group 

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Today, July 14, the EEOC published an update of the EEO-1 pay data reporting proposal in the Federal Register, announcing a second public comment period.  The second round of public comments are due on August 15, 2016.

Unfortunately, many of the criticisms and concerns raised by the employer community where largely ignored by EEOC.  In a nutshell, EEOC is still proposing that employers submit W-2 compensation data instead of base pay and will be required to submit hours worked for both exempt and non-exempt employees.

Although the EEOC rejected most of the concerns expressed by commenters, the revised proposal does contain one major change and one clarification.

The Major Change: March 31 Deadline

The major change involves the reporting period. One of the major criticisms of the initial proposal was that employers would have to prepare W-2 data twice: once during the normal tax period and again during the EEO-1 reporting period.

In the revised proposal, the filing deadline has been changed to March 31, so that employers can use the W-2 information compiled for tax purposes.  Under the revised proposal, the employer would report the annual W-2 earnings only for those employees employed by the company from October 1 through December 31. The first report would be filed during the 1st quarter of 2018 with a due date of March 31, 2018.

Employers would also provide the total number of hours worked during the year for each employee.

The Clarification: W-2 

The initial proposal did not define the term, “W-2 Earnings.”

The revised proposal clarified that employers will provide earnings from Box-1 of the W-2. The amount reported in Box 1 (Wages, Tips and Other Compensation) is an employee’s “taxable compensation”, not gross wages. Taxable compensation is gross wages (the total amount of earnings on your earnings statement) less those items the IRS considers “non-taxable.”

Things That Remain Unchanged
  • All employers with 100 employees or more would be required to submit an EEO-1 report with Component 2 (compensation data).
  • Reporting by pay bands as proposed in the original proposal remains the same.
  • EEOC continues to propose that “hours worked” be reported on the form.
    • As DCI has indicated previously, this would be required of both exempt and non-exempt employees.
    • EEOC remains committed to periodically publishing results pay disparities by race, sex, industry, occupational groupings, and Metropolitan Statistical Area (MSA).

You can find DCI’s quick analysis of the original proposal here.

Please stay tuned as DCI continues to inform our clients and other stakeholders on the proposals.  Should you want to have your voice heard in the next public comment period, please reach out to your DCI representative.

By Joanna Colosimo, Senior Consultant; Mike Aamodt, Principal Consultant; and David Cohen, President at DCI Consulting Group 

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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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On October 29th, 2015 OFCCP sent its final Discrimination on the Basis of Sex regulations to OMB’s Office Information and Regulatory Affairs (OIRA) for review and approval.  (Note:  This does not mean that they are final.  All this means is that OFCCP is done with the regulations and has sent a draft to OMB for approval.)  According to OFCCP’s Unified Agenda, this regulation is scheduled to be released in final form in December of 2015 so it appears that OFCCP is right on schedule.   Until OMB approves the regulations, the contractor community will not know the specifics behind the regulations.

Although total speculation, I have an educated hunch that the OFCCP may incorporate language into these regulations that is very similar to what was recently passed in California.  As many of you know, the state just passed the California Fair Pay Act (CFPA) that significantly expanded that state’s Equal Pay Act law.  More specifically, the CFPA expands the EPA as follows:

  • The CFPA removed the “within any establishment” requirement so that a complainant does not have to compare his/her salary to a cohort within the same establishment.  Essentially wage discrimination claims can be made across establishment.
  • The definition of “substantially similar work” significantly broadens the definition of pay discrimination in comparison to the EPAs definition of equal work.
  • The affirmative defense of “a differential based on any other factor than sex” has been changed to a “A bona fide factor other than sex” that has to be “job related with respect to the position in question, and is consistent with a business necessity.”  It appears that California has adopted a Uniform Guidelines standard of validation when it comes to pay factors.  The language used in the CFPA is the same as the language used in the aborted federal Paycheck Fairness Act and, in my opinion, goes well beyond “any factor other than sex.”  Furthermore, the factor other than sex defense is the one commonly used in the EPA.
  • The one or more factors relied upon must account for the entire wage differential.

Some may be asking how OFCCP can legally expand the language of the proposed regulations to incorporate language in the CFPA when it was not proposed during the notice and comment phase.  Simple!  They can if enough commenters suggested to OFCCP that, although the proposal is good, it can be made better by expanding the language to include similar language to what is in the final CFPA.  So, did any of the commenters do that?  They sure did!  Here is just an example of many made by the National Women’s Law Center:

There are three ways that the equal pay portion of the NPRM can be strengthened. First, we recommend explaining that factors other than sex must be job related and consistent with business necessity. The factor also must actually account for the entire difference in pay. As the EEOC has made clear, “a very slight difference in experience would not justify a significant compensation disparity.”49 And even if the factor met this test, a higher salary would not be appropriate if the employer was unaware of the factor when setting pay or if the employer did not consistently rely on the factor.

If my hunch is correct, and only time will tell, the new Sex Discrimination regulations would have a much greater impact on contractors than originally thought.  In fact, this could be the most significant regulation in well over a decade.

By Dave Cohen, President, DCI Consulting Group 

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In 2013, when the VEVRAA implementing regulations were revised, many contractors were confused by the “active duty wartime or campaign badge” category. The regulations define an “active duty wartime or campaign badge veteran” as a veteran who served on active duty in the U.S. military, ground, naval or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense.  The confusion stems from the fact that Congress has not declared “war” since World War II, though there have been several “periods of war” since that time. Absent a clear definition, different Federal agencies apply different definitions, depending on the purpose (e.g., OPM’s definition for Veteran preference vs. Veteran’s Affairs definitions for certain benefits). Under the new infographic, OFCCP revised the language of the active duty wartime definition to “Did you serve on active duty during one or more of the periods of war outlined in 38 U.S.C. 101?”

Our friends at the Equal Employment Advisory Council (EEAC) recently pointed out that OFCCP’s infographic for determining if you are a “protected veteran” has adopted the “period of war” phraseology versus the more narrowly defined “during a war”. Under this guidance, the infographic states that individuals who served on active duty during the following “periods of war” are covered:

  • Korean Conflict (June 27, 1950-January 31, 1955),
  • Vietnam Era (February 28, 1961-May 7, 1975 for veterans serving in the Republic of Vietnam or August 5, 1964-May 7, 1975 for all others), and
  • Persian Gulf War (August 2, 1990-present).

The other campaigns and expeditions for which a campaign badge was authorized also still apply to this category, but are likely redundant for most veterans seeking employment. The practical impacts of this change include 1) based upon this recent expansion the “recently separated” category has been moot for almost 25 years, 2) “Vietnam Era” veterans are still covered (despite the rescission of 41 CFR 60-250), and 3) it is likely that protected veteran representation has been under-reported by contractors on the VETS-4212 and the VEVRAA 44k analytics . The third point stems from the likelihood that applicants and employees used a more strict application of the category “active duty wartime or campaign badge” than OFCCP apparently intended.

The next question is whether contractors will want to revise their self-identification forms yet again to clarify the more broad definition.

By Dave Cohen, President, and Kristen Pryor, Consultant at DCI Consulting Group 

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The Office of Federal Contract Compliance Programs (OFCCP) is publishing a Final Rule that promotes pay transparency by prohibiting federal contractors and subcontractors from discharging, or otherwise discriminating against their employees or job applicants for discussing, disclosing, or inquiring about compensation.  The Final Rule takes effect on January 11, 2016, and implements Executive Order 13665, signed by President Obama on April 8, 2014.  Executive Order 13665 amends section 202 of Executive Order 11246, which already prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin.  View the Final Rule, frequently asked questions, fact sheets, and other helpful resources on OFCCP’s Pay Transparency Web page at www.dol.gov/ofccp/PayTransparency.

By Dave Cohen, President, DCI Consulting Group 

 

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In accordance with the revised Section 503 regulations, federal contractors are required to invite applicants and employees to voluntarily disclose disability status from employees and applicants and including these figures in their affirmative action plans. This information is strictly voluntary, so contractors may not compel or coerce employees or applicants to complete the form. Therefore, 100% participation of employees or applicants in the voluntary invitation is not likely.

Given this, DCI clients have raised concerns about low participation rates in this voluntary process and the impact that this will have on the disability goals and other analytics.  Therefore, we conducted a short survey for contractors to share their self-identification participation rates to establish an industry benchmark for contractor awareness. All information gathered from this survey was kept anonymous, and the following results have been aggregated.

This survey addressed four areas contractors should consider when interpreting self-identification results:

  1. Participation rate (percent of employees that filled out the survey);
  2. Response rate (of those that participated in the survey, what percent were disabled);
  3. Utilization rate (percent of employees disabled in comparison to the workforce); and
  4. Applicant response rate (percent of applicants identifying as disabled)

One additional analysis conducted was a correlation analysis to compare rates in comparison to contractor size.  For example, are employees more likely to participate in the voluntary survey in a smaller company versus a larger company?  A positive and high correlation would suggest the answer is yes.

 

1. Participation Rate

Participation rate was measured by the percent of the entire workforce that completed the voluntary self-identification form. Results showed that as the size of the company increased, the participation rate decreased.

  • Average participation rate: 22.32
  • Correlation between company size and participation rate: -0.28

 

2. Response Rate

Breaking the results down even further, response rate was also considered. Response rate assessed the percent of employees that responded affirmatively to having or having had a disability out of the employees that participated. Interestingly, this resulted in a positive correlation with company size, meaning, out of the employees that participated, the rate of those that responded affirmatively increased along with company size.

  • Average response rate: 9.89
  • Correlation between company size and response rate: 0.29

 

3. Utilization Rate

However, when affirmative responses were assessed against the entire company population, identified as utilization rate, we found a considerable decrease in the average number of employees who affirmatively self-identified as having or having had a disability. Much like the participation rate, a negative correlation was found between workforce rate and company size, meaning, as the size of the company increased, the number of employees who affirmatively self-identified decreased.

  • Average workforce rate: 2.54
  • Correlation between company size and workforce rate: -0.07

 

4. Applicant Response Rate

Finally, this survey also assessed the rate of applicant’s who affirmatively self-identified out of the entire applicant pool. Again, a negative correlation was found between applicant rate and company size.

  • Average applicant rate: 2.17
  • Correlation between company size and applicant rate: -0.16

When comparing self-disclosure rates to an industry benchmark, contractors should consider the method in which they analyze their company data. Here we have identified three potential ways contractors may be looking at their data, with each providing different results. Specifically, the difference in response rate and workforce rate should be cause for concern. By using a denominator (total workforce versus those that participated in the survey), we see a substantial decrease in self-identification rates, and a reversal in the direction of the correlation. Each method provides a different picture of the data, with some more favorable than others.

Although the sample was relatively small, a number of industries were represented, such as banking, education, healthcare, and manufacturing, to name a few, as well as company sizes, which consisted of  ranges of 0-499 to over 50,000. Full survey results can be found here.

There were several comments in the survey that are worthy of addressing to guide other contractors in compliance efforts.

  • Employees don’t feel comfortable and fear self-disclosing disability status.
  • Concern about manager access of information.
  • Union dislike of the data collection.
  • Employee ID was a challenge to track since it was not on the survey.
  • Seeing more participation from new hires than employee population.
  • Difficulty in ensuring the data is collected in the same manner across the corporation.
  • Applicants not completing the online application process (i.e. drop off before making it to the self-ID form).

Recall that the OFCCP is hopeful contractors will aspire for a welcoming environment in which applicants and employees feel comfortable self-disclosing disability status. It is imperative to effectively communicate how this information will be collected and maintained confidentially to appease any fear of information sharing or retaliation. This being said, it is important to communicate support from all levels of the organization, share resources and information with employees on why this change is occurring.  In addition, consider providing supplemental information on the page before and after the mandated OFCCP form so that employees become more knowledgeable and comfortable with self-disclosing this information. This supplemental page will be an opportunity for contractors to collect employee ID information to annually complete the utilization analysis (i.e. link disability disclosure to job group within a location). Finally, if you notice any concerns with completion rate of the online application, consider the job seeker experience and review the process to ensure it is clear to the job seeker when they have gone through all the online application pages (i.e. make sure the job seeker is alerted to the fact they have been provided all the appropriate forms and it is time to submit).

As more contractors come into full compliance with Subpart C requirements, it will be useful to resurvey contractors to see if these industry benchmarks and trends change at all. Stay tuned for a resurvey of Section 503 compliance in Quarter 1 2016.

By Bryce Hansell, HR Analyst; Keli Wilson, Senior Consultant; and Dave Cohen, President, DCI Consulting Group 

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In accordance with the revised Section 503 regulations, Federal contractors are now collecting voluntary self-identifications of disability status from employees and applicants and including these figures in their affirmative action plans. This information is voluntary, so contractors may not compel employees or applicants to complete and turn in the form. Therefore, 100% participation of employees or applicants in the voluntary invitation is not likely.

Given this, DCI clients have raised concerns about low participation rates in this voluntary invitation and the impact that this will have on the disability goals and other analytics.  Therefore, we have put together a short survey for Federal contractors to share their self-identification participation rates to establish an industry benchmark for contractor awareness. Your participation in this survey is strongly encouraged. All information gathered from this survey will be kept anonymous, and results will be shared only in the aggregate.

Please answer these questions as they relate to the entire company and not individual establishments:

Survey

 

By Bryce Hansell, HR Analyst; Keli Wilson, Senior Consultant; and Dave Cohen, President, DCI Consulting Group 

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Really, I Come Here for the Food: Sex as a BFOQ for Restaurant Servers

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

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Fiscal Year 2018 Budget Proposes Merger of OFCCP and EEOC

The Department of Labor’s Fiscal Year 2018 (FY2018) budget proposal was released today, May 23, 2017.  The budget outlines the initiatives and priorities of the new administration, and as predicted by DCI, recommends merging the Office of Federal Contract Compliance Programs (OFCCP) and Equal Employment Opportunity Commission (EEOC) by the end of FY2018.

The proposed budget indicates that the consolidation will provide efficiencies and oversight.  Additionally, the proposed budget allots $88 million for OFCCP, a decrease of $17.3 million from Fiscal Year 2017.  The main cut to the budget appears to be headcount, with a proposed 440 full-time equivalent (FTE) headcount, a reduction from 571 FTEs.  Some other interesting items that have

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