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Jeff Henderson

Jeff Henderson, M.P.S.

Associate Consultant
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Jeff Henderson is an Associate Consultant at DCI and has been with the company since March of 2013. Jeff provides client support in the areas of affirmative action planning, OFCCP audit strategy, pay equity, HR risk management, and D&I programs, and regularly contributes to personnel selection projects. While at DCI, Jeff has developed and delivered a number of client-facing training materials pertaining to applicant tracking, 503-VEVRAA compliance, and pay equity, as well as supported internal training of DCI’s AAP and salary analysis software. He is currently assisting in the expansion of DCI’s Diversity Metrics & Inclusion Programs line of business, and has been working on some new and exciting D&I service offerings. Prior to joining DCI, Jeff worked for TEKsystems’ headquarters, where he managed HRIS data integrity and reporting and conducted corporate and field training.
Jeff earned a Master’s of Professional Studies (M.P.S) in Industrial-Organizational Psychology from the University of Maryland, Baltimore County and a Bachelor of Science in Psychology, cum laude and with distinction, with a minor in Organizational Communication from James Madison University. His primary research interests are in personnel selection, training, knowledge management, and organizational development.

Jeff Henderson ’s Recent Posts

As outlined in the Pay Transparency rule, federal contractors who enter into a new or modified contract of $10,000 or more on or after January 11, 2016 must not discharge or otherwise discriminate against employees or job applicants for discussing, disclosing, or inquiring about compensation.

OFCCP recently revised the Pay Transparency Nondiscrimination Provision language that federal contractors are required to include and post conspicuously for applicants and employees in electronic or hard copy versions of employee handbooks/manuals or as part of a separate Pay Transparency policy. It is important to note, the only difference is a citation to the regulation “41 C.F.R. 60-1.35 (c)” at the end of the conclusion of the notice.

If you have already incorporated the Pay Transparency Nondiscrimination Provision language into your handbooks/policies prior to December 2016, DCI recommends at minimum that you update your electronic postings with the revised language as soon as possible and then proceed with updates to your hard copy materials when it makes the most sense for your organization.

By:  Jeff Henderson, M.P.S., Associate Consultant and Yesenia Avila, M.P.S., Associate Consultant at DCI Consulting Group

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The Office of Federal Contract Compliance Programs has filed a lawsuit against JPMorgan Chase & Co for paying a class of 93 female employees lower than their male counterparts in various professional positions (e.g., Application Developer Lead II, Application Developer Lead V, Project Manager, and Technology Director) within its Investment Bank, Technology & Market Strategies unit. OFCCP stated that they identified sex-based compensation disparities despite accounting for legitimate factors affecting pay differences. The lawsuit alleges that JPMorgan compensation policies and practices violated Executive Order 11246 which prohibits discrimination in pay based on sex, and that the company failed to perform a required evaluation of their compensation systems.

Prior to filing this lawsuit, OFCCP’s attempts to gain voluntary agreement from JPMorgan to take corrective action were unsuccessful. This case has been filed with the Department of Labor’s Office of Administrative Law Judges (ALJ). The complaint seeks compensatory relief to the affected class, including lost pay, interest, salary adjustments and all other lost benefits of employment. If found by the ALJ to have violated Executive Order 11246 requirements, JPMorgan faces the threat of cancellation of its current federal contracts and debarment of future contracts until it provides relief to those affected.

Stay tuned to know how this case progresses.

By Vinaya Sakpal, HR Analyst, and Jeff Henderson, Associate Consultant, at DCI Consulting Group

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DCI Consulting Group (DCI) had representatives attend the SHRM Diversity and Inclusion (D&I) conference held October 25-27, 2016 in Austin, TX. A draw for the conference was to hear from business leaders on D&I initiatives, such as aligning D&I strategy to business objectives and attracting and retaining diverse talent by striving for an inclusive culture. A recap of the conference sessions, in which DCI was present and deemed to be a direct relation to both D&I and compliance, can be found within this blog.

The Business Case for Hiring Military Veterans: Strategies, Approaches and Best Practices

Nathan D. Ainspan, Ph.D., of the Transition to Veterans Program Office (TVPO) Department of Defense, spoke to attendees about initiatives to attract and retain veterans in the workplace. With approximately 200,000 annual transitions from the military, there is ample opportunity to improve and bridge the transition process for this skilled population. Dr. Ainspan has partnered with the Society of Industrial and Organizational Psychology and the Society of Human Resource Management for education, training and research in this field.

He outlined the skills veterans have that are in need as identified in a literature review, concerns by veterans transitioning (i.e., may be considered more of a career change than a transition which may take 6 months to a year for placement), as well as successful practices for attracting and retaining veterans (e.g., effective on-boarding, mentoring programs, and affinity groups). In addition, Dr. Ainspan noted the following resources:

Resources for Hiring

  • Local Installation Transition Office;
  • American Job Centers; and
  • Hiring Our Heroes.

Recruiting Resources

  • DoD SkillBridge Program;
  • DoDs Transition Assistance Program; and
  • VA’s Veteran Employment Toolkit.

Creating an Inclusive Culture in Your Organization

Lauren Aguilar, with Paradigm, summarized empirical evidence supporting an inclusive culture in this session. She covered the following concepts and shared how to optimize each for a more inclusive organizational culture:

  • Physical environment (e.g., cues in the environment)
  • Growth mindset (e.g., learn from mistakes)
  • Team communications (e.g., impact of interruptions)
  • Psychological safety (e.g., interpersonal risk taking)
  • Feedback (e.g., delivery and focus of feedback)

Managing D&I: Religion and LGBTQ Issues in the Workplace

Michael S. Cohen of Duane Morris LLP discussed the legal and practical implications of organizations addressing issues that arise related to LGBTQ status and requests for religious accommodation. This session included discussion of:

Response Options to Religious Accommodation Requests

  • Accommodation denied due to employee not holding a bona fide religious belief
  • Accommodation not available or poses undue hardship on the employer
  • Accommodation not needed, as request has no conflict with employment requirements
  • Accommodation offered (which employee may accept or reject)

LGBTQ Considerations

  • Effect of local laws on practices and policies
  • Level of inclusiveness in organization policies
  • Environment and culture
  • Demographics of leadership

Invisible No More ® – Seven Realities of the Invisible Becoming Visible

In a session focusing on invisible disabilities, Wayne Connell, founder and president of Invisible Disabilities Association based in Denver, CO, highlighted some points to keep in mind when working with individuals with invisible disabilities inside and outside of the workplace:

  • 74% of individuals with severe disabilities do not use assistive devices
  • 24% of Americans have 1 or more chronic illnesses
  • You can support individuals with invisible disabilities by:
    • Acknowledging their situation – do not assume that because you cannot see what they are going through that it is not real. Believe them first.
    • Acknowledging their losses – many people with invisible disabilities have had to alter or completely change the way they live their life as a result of their disability
    • Respecting their boundaries and limitations – ensure they have equal access/invitation to positive opportunities at work (i.e. just because they say no to participating in an activity once, do not assume they never want to be invited again or are always unable to participate)
    • Showing them you are listening – they are the best person to show you what they need to succeed
    • Showing them you are willing to help – maintain a friendly and open orientation toward assisting them with daily activities

Everything You Wanted to Know About Gender Transition in the Workplace but Didn’t Even Know to Ask

Grace Stevens, President of GVET, described her experience transitioning in the workplace and provided employers with best practices on supporting transgender individuals in their organizations. Here are some of the key takeaways:

  • Educate transgender employees that it’s OK for them to set boundaries (e.g., to not go into detail with others about their transition unless they want to)
  • Educate non-transgender employees to accept and respect the boundaries set by transgender coworkers
  • Advise employees going through transition that it may be beneficial for them to write a “coming out” letter to coworkers to address common questions (e.g., pronoun use)
  • HR should create and make publicly available (e.g., dissemination from top leadership recommended) a policy promoting the inclusion of transgender employees in the workplace and highlight resources available to transgender employees and how to access them.

What the #%!*: Political Correctness in the Workplace

In this session led by Marc Scheiner, attorney at Duane Morris LLP, discussion surrounding the issue of navigating political correctness in the workplace took stage. “Political correctness,” according to Scheiner, can be more applicably interchanged with “treating people with respect,” which is the ultimate goal of any harassment prevention program. Scheiner reminds us that we need to not only train managers on dealing with obvious inappropriate conduct (e.g. patent racism or sexism) but also less obvious forms such as:

  • Jokes
  • Stereotyping
  • Requests for dates
  • Pop culture references
  • And even more subtle forms such as:
    • “Positive” stereotypes
    • Unconscious bias
    • Microaggressions
    • Non-inclusiveness

While HR’s focus should be on managing and preventing inappropriate behavior and harassment, the focus of organizational leaders should center on creating a culture that encourages openness, promotes listening and mutual respect, and supports a learning environment.

The Neuroscience of Mitigating Bias and Elevating D&I

David Rock of NeuroLeadership Institute provided advice to employers based on research conducted at the Institute on understanding and breaking bias. The model he proposed using consisted of:

  • Accepting that brains are biased
  • Labeling the bias you are dealing with
  • Mitigating biases with brain-based strategies

Instead of raising awareness of the exclusion of particular groups, David Rock suggests employers build new habits that create inclusion, focusing on the smallest possible set of behaviors to shape in these new habits.

DCI staff look forward to networking with you at the 2017 D&I conference! Stay informed of DCI’s D&I initiatives (e.g., D&I program evaluations, trainings, employee life-cycle diversity dashboards and metrics) through our bi-weekly blogs.

By Keli Wilson, Principal Consultant; Jana Garman, Senior Consultant; and Jeff Henderson, Associate Consultant, at DCI Consulting Group 

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On September 30, 2016, the U.S. Department of Labor’s (DOL) Wage and Hour Division published the Final Rule implementing Executive Order 13706, which requires covered federal contractors to provide up to seven days (56 hours) of paid sick leave annually to all employees. The DOL predicts that the Final Rule, effective on November 29, 2016, will provide paid sick leave to 1.15 million employees, including 594,000 employees who do not currently receive paid sick leave.

The Executive Order applies to new contracts and replacements for expiring contracts that result from solicitations, or contracts awarded outside the solicitation process, issued on or after January 1, 2017. It also covers those who are exempt from the FLSA’s minimum wage and overtime provisions. However, it does not apply to employees working on contracts covered by a collective bargaining agreement (CBA) that provides at least 56 hours of paid sick leave until January 1, 2020, or the CBA termination date, whichever occurs first.

Summary of Paid Sick Leave Terms under Final Rule:

  • Time accrued:  employees will accrue 1 hour of paid sick leave for every 30 hours worked, for up to 56 hours in a year.
  • Permitted use:  for employee’s own illnesses and other health care needs (includes preventive care); for the care of a family member or loved one (e.g. close friend) who is in need of health care; for purposes resulting from being the victim of domestic violence, sexual assault, or stalking (i.e. can include seeking counseling, relocation, or legal services)—or to assist a family member or loved one who is a victim of such behavior.
  • Carry-over:  employees can carry over up to 56 hours of unused paid sick leave from year to year while they work for the same contractor.
  • Cash-out:  contractors will not be required to pay employees for any unused paid sick leave when they leave their job.
  • Time used:  employees can use as little as an hour, or as much as all paid sick leave they have accrued, at a time.
  • Certification:  employers may require that employees using paid sick leave provide certification from a health care provider.
  • Anti-retaliation:  employers may not interfere with the accrual or use of paid sick leave.

For additional information on Executive Order 13706 and the Final Rule, including a Fact Sheet, FAQs, as well as some other helpful links, be sure to stop by the DOL website and consult with your legal expert to determine what these new requirements mean for your organization.

By Bryce Hansell, Associate Consultant and Jeff Henderson, Associate Consultant

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On June 15, 2016, OFCCP published its final rule updating the sex discrimination guidelines (41 C.F.R. part 60-20) from their period of dormancy since the 1970s. The long-awaited revisions, while reinforcing already-established sex discrimination principles from the dated publication, bring the regulations in line with current Title VII law and Supreme Court interpretations. Impacting federal supply and service contractors and subcontractors, as well as federally assisted construction contractors and subcontractors, the new regulations become effective on August 15, 2016. Here are the main takeaways:

  • There are no new imposed policy changes. For the most part, contractors should already be up-to-date with many of the policies and procedures outlined in the new rule.
  • Targeted outreach and recruitment efforts toward females as part of Executive Order 11246 affirmative action requirements will not violate these rules.
  • Proposed language referring to the requirement of contractors paying “equal” wages to similarly situated employees was removed in the final rule and, instead, replaced with language stating it will be a violation if wages, benefits, or other compensation are a result in whole or in part of the application of any discriminatory compensation decision or other practice.
  • There is a featured section on best practices in promoting gender neutral equal employment opportunity.

For more on the updated sex discrimination rules, be sure to visit the OFCCP website for a fact sheet, frequently asked questions, crosswalk of the old guidelines to the new final rule, and other resources.

By Jeff Henderson, Associate Consultant and Keli Wilson, Principal Consultant at DCI Consulting Group

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On May 11, OFCCP announced that Gordon Food Service (GFS) settled with the agency, agreeing to pay $1.85 million to female applicants to resolve allegations of hiring discrimination for laborer positions at four separate locations:  two in Michigan, one in Kentucky, and one in Wisconsin. Specifically, there were 926 affected female applicants across locations, and GFS agreed to hire 37 of those applicants as positions become available.

The allegations centered on findings of adverse impact at the job group level and referenced a strength test, lacking validation in accordance with UGESP, as the source of the adverse impact. OFCCP evaluated three separate time periods across the four facilities, the shortest being approximately 19 months of data at two facilities (Kenosha, Wisconsin and Grand Rapids, Michigan) and the longest being approximately 23 months of data at the Kentucky facility.

Each conciliation agreement indicated that the strength test adversely impacted female applicants and was not validated in accordance with the Uniform Guidelines on Employee Selection Procedures (UGESP). The conciliation agreements mentioned that an interim validation study was conducted, but it failed to include “an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedures which have as little adverse impact as possible.” In other words, the agency determined that the interim validation study did not provide any or enough information about potential reasonable alternatives to the strength test. GFS has agreed to cease use of the strength test until it has been validated in accordance with UGESP or a comparable UGESP validated assessment is identified.

This case serves as a reminder to research the underlying cause of statistical disparities. Per UGESP, this research should take the form of breaking down the hiring process into the steps or points where decisions are made. If a step is identified to be driving the disparity, sufficient validation evidence is then required to support the continued use of that step, in spite of the statistical disparity. Personnel psychology research literature generally reports that tests of physical strength and/or endurance are likely to produce adverse impact against females. As such, federal contractors using these types of assessments should seriously consider formal validation research in accordance with UGESP.

By Kristen Pryor, Consultant, and Jeff Henderson, Associate Consultant, 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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Since the release of OFCCP’s FY 2017 budget justification on February 8, 2016, the federal contractor community has been buzzing, as OFCCP’s requests shed light on the agency’s enforcement priorities for the near future. Given the current political landscape, it is very unlikely that the budget increase desired by OFCCP will be granted by Congress. However, insights into OFCCP’s strategy and the potential implications still can be gleaned from the report.

First, the unusual exchange between the House and Senate Appropriations Committee and OFCCP is fascinating. Essentially, Congress alleged that OFCCP has been eschewing anecdotal evidence and using debarment threats to induce contractors’ compliance. OFCCP refutes those allegations, stating that statistical evidence alone will not result in enforcement procedures against a contractor, and that violation notices will be issued “only where there is an ample evidentiary record” of discrimination.

Hiring and pay discrimination will remain OFCCP’s main focus for FY2017. OFCCP has eliminated numerical targets for completing reviews during the year, instead setting a goal to ensure that 95% of their cases will not have any major investigatory deficiencies. Although enforcement on construction projects is highlighted as a priority in FY2017, updating the construction AAP regulations is notably absent. This confirms that OFCCP will not publish a new rulemaking notice for those regulations before the end of the current administration’s term.

The most interesting revelation is OFCCP’s plan to open Skilled Regional Centers in San Francisco and New York to provide the Pacific and Northeast regions, respectively, with highly trained compliance officers who are able to tackle more complex compliance reviews in specific industries. One of OFCCP’s stated reasons for this move is saving costs by closing some “brick-and-mortar field offices.” Along with the overall reduction in staff during the last few years, this plan could create morale challenges within the agency. The timing of the plan is curious: instituting a fundamental organizational transformation amid the final months of a presidential election year only gives the current administration 3-4 months to enact change. Whether intentional or not, this plan could leave numerous organizational challenges for the next administration to inherit in 2017.

By Fred Satterwhite, Principal Consultant and Jeff Henderson, Associate 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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The OFCCP Institute (“The Institute”) recently submitted comments in response to OFCCP’s Proposed Renewal of Information Collection Requirements, published on October 29, 2015, which describes proposed changes to the Scheduling Letter and Itemized Listing. The Institute’s comments highlighted two major grievances with the proposed changes:

1. The OFCCP should clarify its intentions and authority to share information amongst other agencies and the public

Citing 41 CFR § 60-1.20(g) and the Freedom of Information Act, as amended, 5 U.S.C. § 552 (2009), OFCCP has added language to the end of the Scheduling Letter stating they “may share such information with other federal government agencies to promote interagency coordination and collaboration,” and “the public may seek disclosure of the information you provide during a compliance evaluation.” There is a concern that the proposed language seeks to expand OFCCP’s ability to share and disclose information without appropriate legal authority. The Institute requested that OFCCP provide clarification on whether they intend to share information more broadly with other federal agencies, in addition to the EEOC and DOJ.

2. The OFCCP should remove the additional requirements included in the itemized listing to provide data every six months because it is not consistent with the requirements under Section 503 and VEVRAA  to provide annual data

Itemized Listing items 9 and 10 under Section 503, and Items 13 and 14 under VEVRAA require federal contractors, who are six months or more into their current plan year, to collect and analyze six months’ worth of update data in addition to data for the immediately preceding AAP year.  Analyzing an additional six months’ worth of data goes beyond what is outlined in the regulations, which require contractors to collect and analyze data on an annual basis. Further, this collection and analysis was not factored into the burden estimates of the regulations or in the revised Itemized Listing. In order to remain consistent with the regulations, the Institute recommended that OFCCP revise Items 9, 10, 13 and 14 to remove the additional requirements.

Click here for the full submission of comments by the OFCCP Institute.

By Bryce Hansell, HR Analyst and Jeff Henderson, Associate Consultant at 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.

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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