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Vinaya Sakpal

Vinaya Sakpal

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Vinaya Sakpal, M.P.S., is an HR Analyst with EEO Compliance team at DCI Consulting Group, Inc. Vinaya’s work primarily focuses on development of affirmative action plans for clients and providing assistance with equal employment opportunity reporting. Previously as an analyst with DCI’s Personnel Selection and Litigation Support team, she assisted the team on various employee selection and litigation support projects that involved designing and validating selection systems to improve selection efficiency and reduce adverse impact. She has also assisted senior consultants on various other special projects such as compensation equity analyses, expert testimony preparation and proactive adverse impact analyses. Vinaya graduated with her second master’s degree in Industrial/Organizational Psychology from University of Maryland, Baltimore County in 2014. Her first master’s degree in Industrial Psychology was from SNDT University in India.

Prior to joining DCI, she worked as an intern at Freddie Mac assessing organization wide human capital risk related to staffing, operational issues, and change readiness. Vinaya earned her Bachelor’s degree in Psychology from Mumbai University, India. Her previous experiences include design and delivery of soft skills trainings for multiple corporations in India.

Vinaya Sakpal ’s Recent Posts

A private compensation discrimination case alleging Allsteel discriminated against three former female managers in pay was brought to the attention of the Eighth Circuit Court.  The court’s ruling on Dindinger v. Allsteel, Inc. deemed OFCCP’s compliance audit results, which were in favor of the defendant, to be inadmissible as evidence in the trial. The circuit court’s rationale was that OFCCP’s findings might ‘unfairly prejudice’ the jury instead of allowing them to make an independent evaluation of whether the three female managers were paid less than men.

It is important to note that administrative findings by other government agencies have been found to be inadmissible in a number of cases. OFCCP’s audit findings have rarely been presented as evidence in court.  This ruling might set a precedent for the future, especially in jury trials concerning disparate treatment.

Another noteworthy discussion in this case was the use of economic conditions as defense to explain pay differences between female plaintiffs and their male counterparts. Allsteel presented evidence that the company had experienced negative effects because of the economic recession in 2008, resulting in company-wide employee layoffs and freezes on pay raises. The court rejected this argument, mainly because Allsteel failed to offer evidence specifically on how the recession may have caused the plaintiffs to be paid less than men.

For additional information on this case, click here.

By Joanna Colosimo, Director of EEO Compliance, and Vinaya Sakpal, HR Analyst, at DCI Consulting Group 

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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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Through our previous blog posts, we have kept our readers updated on changes to EEO-1 reporting scheduled to go into effect March 2018. Recently, President Trump put forth a regulatory freeze on new and pending regulations, which affects the revised EEO-1 regulations. This left many contractors wondering about the status of the EEO-1 Report for 2017. To address these concerns, on January 27, The OFCCP Institute sent a letter to EEOC Acting Chair Victoria Lipnic, and the Acting Secretary of Labor, Edward Hugler, requesting a review of revised EEO-1 report and answer the following questions for employers as quickly as possible:

  1. Will Component 2 in fact be implemented in 2018 as finalized?
  2. If Component 2 is eliminated, will the EEOC return to using the EEO-1 Report without Component 2?
  3. If EEOC returns to the EEO-1 Report without Component 2 will the survey be due by September 30, 2017 or in March 31, 2018?
  4. If the EEO-1 Report is due by March 31, 2018 rather than September 30, 2017, will the VETS-4212 report deadline be moved from September to March so that employers will be reporting on the same population for both reports?

To add more context on how we think this might play out, Victoria A. Lipnic, the recently appointed Acting Chair of the EEOC, has been against the added pay component of the revised EEO-1 Report, finding it burdensome to contractors and of little value. However, during a recently held Seyfarth Shaw, LLP sponsored panel discussion, she mentioned she was the only commissioner who voted against it and given the regulatory freeze, this regulation “would fall squarely under” the direction outlined by Trump.

It will be interesting to know how the EEOC and the Acting Secretary of Labor respond to the Institute’s letter. We will keep our readers informed on their response.

By Vinaya Sakpal, HR Analyst, and Rachel Monroe, HR Analyst, at DCI Consulting Group

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President Trump has named Commissioner Victoria A. Lipnic the Acting Chair of EEOC. Lipnic has served as an EEOC Commissioner since 2010 and she was also unanimously confirmed in 2015 by the senate to serve her second term as Commissioner ending July 1, 2020.

Prior to coming to EEOC, she served as the U.S. Assistant Secretary of Labor for Employment Standards. In that role, she oversaw the Wage and Hour Division, the Office of Federal Contract Compliance Programs, the Office of Workers’ Compensation Programs, and the Office of Labor Management Standards. Under her tenure, the Wage and Hour Division revised regulations regarding overtime under the Fair Labor Standards Act, reissued regulations under the Family and Medical Leave Act, and the Office of Federal Contract Compliance Programs issued new guidance and regulations for evaluating compensation discrimination.

As evident from her current and prior roles, Lipnic has a breadth of knowledge and expertise working with the federal labor and employment laws. She was one of the speakers at the NILG Conference last year as an EEOC Commissioner. In her speech, she openly expressed her thoughts on the EEO-1 report revisions with the added pay component. She found the added component (i.e. reporting W2 earnings and total hours worked) in the EEO-1 report to be unnecessarily burdensome for contractors.

A native of Carrolltown, Penn., where her late father was a teacher and long-serving mayor, Lipnic earned a B.A. degree in Political Science and History from Allegheny College and a J.D. degree from George Mason University School of Law. To see the full press release, click here.

By Vinaya Sakpal, HR Analyst, DCI Consulting Group

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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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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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The election has passed, and soon there will be changes at OFCCP. These changes primarily include a new politically appointed OFCCP Director and the shifts this new leadership will bring with it. Looking forward, we have noted recent changes in the agency’s leadership that will be in effect until the Trump administration.

  • Director Patricia Shiu left OFCCP on November 6,2016, 2 days before the presidential election. Upon her departure, Director Shiu stated that nothing is likely to change until a new Director is put in place, however, she indicated that the new administration is more likely to focus on finance and technology industries.
  • Tom Dowd, a current Deputy Director of OFCCP, will serve as the Acting Director of OFCCP until a new Director is appointed by President Trump.
  • Dr. Marika Litras was selected to serve as OFCCP’s Director of Enforcement by Director Shiu. Prior to this, Litras was the Director of the Division of Program Operations with OFCCP and has held several roles with the agency as a Senior Statistician, Director of Regional Operations, and Deputy Director of Program Operations. Director of Enforcement is a newly established Senior Executive Service level position with OFCCP and her responsibilities in this role will include:
    • Collaborating with the regions and National Office Divisions in planning and evaluating the overall enforcement program;
    • Working in partnership with the regions on cases referred to the Office of the Solicitor for potential litigation;
    • Managing and overseeing agency-wide enforcement strategies, investigative techniques and related resources;
    • Coordinating and participating in significant, complex, and multi-establishment investigations

Along with personnel shifts, DCI has noticed some continuing audit trends. We mentioned in a previous blog that OFCCP’s district offices are handling audits outside of their geographic enforcement zones. This trend has continued. We speculate that this may be an indicator of upcoming changes to OFCCP enforcement. Recently, OFCCP has considered “paperless audits” in order to streamline the process and reduce the administrative burden for both sides. Additionally, per their budget for FY 2017, OFCCP plans to establish two “skilled regional centers” in New York and San Francisco. These two centers will be tasked with handling large, complex discrimination investigations and providing new and efficient ways to support high-quality enforcement. Stay tuned for more updates on OFCCP and other industry trends.

By Vinaya Sakpal, HR Analyst, and Rachel Monroe, HR Analyst, at DCI Consulting Group

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Similar to the Massachusetts Pay Equity law passed earlier this year, California Governor Jerry Brown signed an additional anti-wage discrimination bill on Sept. 30th that bans using prior salary as a baseline for setting compensation. This law further strengthens the already stringent pay equity laws in California. Specifically, the law now states that employers cannot justify a disparity in compensation solely based on candidates’ prior salary.

The law states that employees performing “substantially similar work, when viewed as a composite of skill, effort, responsibility, and working conditions” must be paid equally. Any differences in wage can only be justified by the following factors:

  • A seniority system
  • A merit system
  • A system that measures earnings by quantity or quality of production
  • A bona fide factor other than sex, such as education, training, or experience

California’s law also aims at closing the wage gap regarding race and ethnicity. The law uses the same clause above to prevent employers from discriminating on the basis of race as well as gender.

The idea behind these laws is to eradicate prevailing unfair wage disparities in the market that get carried over when employers set compensation based on prior salary. According to the sponsors of the bill, many statistics on the wage gap between men and women have revealed the disparity (i.e. women earn 79 cents to every dollar men earn), and this wage gap is further widened when race is added to the equation (i.e. black women earn 63 cents to every dollar white men earn; and Latinas earn 56 cents to every dollar white men earn).

This law will go into effect January 1st 2017. Click here to learn more about the bill.

By Rachel Monroe, HR Analyst, and Vinaya Sakpal, HR Analyst, 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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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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