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Yesenia Avila

Yesenia Avila, M.P.S.

Associate Consultant
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Yesenia Avila joined DCI Consulting Group as a graduate intern in April 2012. She has since remained with DCI and is now an Associate Consultant. Since joining DCI, Yesenia has utilized job analysis data to develop new job descriptions and has supported Equal Employment Opportunity research projects related to employee selection, pay equity and EEO enforcement. Her primary focus is to provide support for clients on affirmative action planning, compensation equity analyses, audits and employment discrimination. Additionally, Yesenia has worked with Senior and Principal Consultants on various projects focused on developing new selection systems, conducting job analyses, and performing test validation and validity generalization research. Yesenia earned a Master’s of Professional Studies (M.P.S.) in Industrial/Organizational Psychology and a Bachelor of Arts degree in Psychology from the University of Maryland, Baltimore County.

Yesenia Avila ’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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In light of Pat Shiu’s recent departure from OFCCP (as of 11/6/16) and the continuous buzz around the OFCCP-focused GAO report, we wonder… what’s next? As a follow-up to DCI’s 9/29/16 blog, we wanted to share some interesting similarities between the GAO report and OFCCP’s FY17 budget proposal.

GAO Recommendation

FY17 Request for OFCCP

“Make changes to the contractor scheduling list so that compliance efforts focus on those contractors with the greatest risk of not following equal employment opportunity and affirmative action requirements.” “Continued focus on data to improve the effectiveness of worker protection agencies and maintained investment in the shared information technology platform, including updating the agency’s enforcement database to fully participate in a digital government integrated platform that will enhance data quality and increase the agency’s ability to focus limited enforcement resources on more likely violators…”
“Make changes to the current scheduling list distribution process so that it addresses changes in human capital and does not rely exclusively on geographic location.” “OFCCP will establish two Skilled Regional Centers. These centers, which would be located in the Pacific (San Francisco) and Northeast (New York) regions, would have highly skilled and specialized compliance officers capable of handling various large, complex compliance evaluations in specific industries, such as financial services or information technology… The agency’s move toward regional specialization in more complex cases will reduce the need for 48 brick-and-mortar field offices…”
“Provide timely and uniform training to new staff, as well as provide continuing training opportunities to assist compliance officers in maintaining a level of competence to help ensure quality and consistency of evaluations across regions and district offices.” “The OFCCP National Training Academy (Training Academy) will support contractor compliance and public education by providing educational Webinars or courses. The Training Academy will also conduct extensive training for OFCCP’s compliance officers and staff, and provide sessions for OFCCP’s non-contractor stakeholders such as community-based organizations, and others.”
“Assess existing contractor guidance for clarity to ensure that contractors have information that helps them better understand their responsibilities regarding nondiscrimination and affirmative action requirements to ensure equal employment opportunities for protected workers.” “To assist contractors in complying with their regulatory responsibilities, in FY 2017 OFCCP’s field offices will continue to conduct compliance assistance activities, and these activities will incorporate some improved tools and materials directed at self-assessment of contractor pay practices. OFCCP will continue to issue technical assistance guides, fact sheets and brochures that describe its enforcement priorities, the laws it enforces, and what companies can do to achieve compliance.”


Are these tell-tale signs of what is to come under the Trump administration? Only time will tell, but it’s always nice to see a sneak preview!

By Yevonessa Hall, Senior Consultant, and Yesenia Avila, Associate Consultant, at DCI Consulting Group

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Like other major tech companies, Microsoft’s employment practices are under scrutiny following a class action lawsuit. The case, Moussouris v. Microsoft Corporation Case No. 15 cv 1483 was originally filed by attorneys in 2015 and alleges the company engaged in systematic and pervasive discrimination against female employees in technical and engineering jobs.

Although the case is still ongoing, an article released last month reported that Notice of Violation (NOV) documents were released by OFCCP, which caused a stir in the contractor community. This, however, was not the case, and was most likely misinterpreted by the press. The plaintiff’s attorney noted in the filing that it was Microsoft who supplied the redacted copies of the notices.

A notice of violation is typically issued when OFCCP believes there are technical violations or that evidence of systemic discrimination exists. OFCCP sends these notices to the company and cannot make them public. Although a signed conciliation agreement or consent decree can be requested through the Freedom of Information Act (FOIA), an NOV cannot.

By Yesenia Avila, Associate Consultant, and Joanna Colosimo, Associate Principal Consultant, at DCI Consulting Group


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In an earlier blog  in this alert, Art Gutman summarized the April 21, 2016  Department of Labor Administrative Review Board (ARB) ruling related to a long-standing set of OFCCP allegations against Bank of America (BOA). This ruling serves as a warning to the Office of Federal Contract Compliance Programs (OFCCP) and other federal agencies to rely on more than just statistical significance when pursuing employment discrimination claims.

This ruling trumps the Administrative Law Judge (ALJ) ruling back in 2010 that supported the use of statistics demonstrating a disparity of two or more standard deviations as enough to establish a prima facie case of unlawful discrimination (see our previous blog for more details on that issue). In 2010, the ALJ found BOA in violation based on statistical evidence during the time periods of 1993 and 2002-2005. Why did they rule differently for the 2002-2005 period this time around?

Statistical versus practical significance

A key reason for the 2002-2005 period ruling of insufficient evidence is due to the extremely small shortfalls. Shortfalls give the number of expected hires for the disadvantaged group if selection rates across all groups were equal. The larger the shortfall, the more practical impact a difference in selection rates has. The ALJ noted “in 2003, 44 African Americans were offered a job instead of the expected number of 47.9; in 2005, 32 instead of 34.5. Those are small shortfalls.” In other words, even though the OFCCP found a statistically significant difference, the actual discrepancy in terms of hires was less than five people in a given year. Our takeaway from this is a precedent is set for courts to not rely on statistical significance in isolation: practical significance is another key piece of evidence.

By Yesenia Avila, Associate Consultant, and Samantha Holland, Consultant, DCI Consulting Group 
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Federal contractors doing business with the federal government must comply with the regulations enforced by OFCCP and during a compliance evaluation, they must submit all items on the scheduling letter. However, some of the proactive analyses that are conducted that are outside of the requirements of the regulations are done under the attorney-client work privilege and/or attorney-client work product.  As a result, it is important that federal contractors know their rights with regard to the attorney-client privilege. More information and the origin of these two doctrines can be found at the Federal Rules of Evidence.

This concept is outlined in the ABA Model Rule 1.6 under Comment (2): “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” This establishes the basis of trust under the attorney-client relationship and a violation of the ethics rule may lead to disciplinary sanctions. Furthermore, Comment (3) explicitly states: “The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”

The regulations implementing EO 11246, found in section 41 CFR 60-2.17 (b) (3), require Federal contractors to “evaluate… compensation system(s) to determine whether there are gender, race, or ethnicity-based disparities.” Unlike other requirements of the affirmative action plan, it is important to note that the regulations do not require that the contractor conduct an “analysis” nor do the regulations prescribe what is an acceptable “evaluation of systems.”

What does all this mean? It is clear that compensation is OFCCP’s number one priority for enforcement and that the OFCCP will conduct an analysis of your compensation systems. With that in mind, it is now even more critical to conduct these under attorney-client privilege. Conducting a proactive compensation analysis is the right thing to do, and supposedly the agency would prefer that contractors proactively analyze, identify, and correct their own compensation issues. However, if that analysis is not done under privilege, the contractor is open to unnecessary liability in that the analysis would need to be handed over if requested, for example, by OFCCP in an audit situation.

But that’s not all!  DCI is seeing a trend, particularly in the pacific region, where the agency is asking for proof and confirmation that the contractor is in compliance with regulations at 41 CFR 60-2.17 (b) (3).  Many contractors have responded to this request by confirming that they are in compliance but all “analyses” have been conducted under privilege.  Where previously OFCCP would accept that answer, the agency is now sometimes asking contractors for “proof” that compensation analyses are done under attorney-client privilege/work product by providing a “privilege log”. This is a fairly new request, and contractors are not required to submit “privilege logs” as they are not maintained in the regular course of business nor are they a required component of the itemized listing. The only instance where these are relevant is in the process of responding to discovery requests under litigation. This requirement to provide information related to privileged documents is found in the Federal Rules of Civil Procedure (FRCP” or “Rules”) which are rules that “govern the procedure in all civil actions and proceedings in the United States district courts.”

From their perspective, the agency feels that because it’s a regulatory requirement, you have to turn over these analyses in the course of the audit. However, other legal experts contend there is no need to submit “analyses” because the regulations don’t specifically require it (see quoted requirement above). What is the incentive or motivation to proactively analyze one’s compensation systems if you’ll be asked to hand over the analytics? Instead of encouraging contractors to do what’s right, the agency is doing the opposite.

So what’s the takeaway message? Make sure you are doing your proactive in-depth evaluation of your compensation systems and if conducting an actual analysis, conduct them under privilege.

By Yesenia Avila, Associate Consultant, DCI Consulting Group 

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In this multi-part blog series, we will cover various topics relevant to the Federal Contractor community as it relates to statistical analyses. We begin our series with a topic that is often misunderstood by both practitioners and enforcement agencies.

This past year we heard some crazy interpretations regarding the meaning of a statistically significant standard deviation test.  Our favorite was:

“A significant standard deviation means that there is a 95% chance that the difference is due to discrimination.”

As a result of such statements, we thought this might be a good time to briefly remind everyone about the meaning of the term, “statistically significant.” The idea behind statistical significance testing is that anytime you gather a sample of data (e.g., hiring rates for a janitorial position, average salary for accountants) and compare two groups (e.g., men and women), due to chance alone, it is extremely unlikely that the difference between the two groups is going to be exactly zero. For example, for a particular hiring requisition we hired 76% of White applicants but “only” 70% of Hispanic applicants. Is this 6% difference the result of chance or something more sinister?  What would the numbers look like across ten requisitions?

When a difference between two groups is statistically significant (e.g., the difference in selection rates is greater than two standard deviations), it simply means that we don’t think the observed difference is due to chance. The greater the number of standard deviations, the less likely we are to believe the difference is due to chance. Some things to keep in mind:

  • Because a standard deviation test is greatly affected by sample size, the number of standard deviations doesn’t say anything about the size of the group difference.  For example, with 10,000 job applicants, a 1% difference in selection rates (e.g., 90% v. 89%) would exceed two standard deviations; however, a 20% difference with 40 applicants (e.g., 80% v. 60%) would not.
  • A group difference that is flagged as being statistically significant using a standard deviation test may still have occurred by chance. If we ran 100 adverse impact analyses, we would expect five to be statistically significant by chance alone!
  • A statistically significant standard deviation doesn’t imply discrimination: It simply provides some confidence that something might be going on and that we should explore the difference further.

Stay tuned for additional blogs. Also, please read our white paper to learn more about the different statistical significance tests used to analyze data for the purpose of identifying disparate impact (adverse impact) which is different from disparate treatment.

By Mike Aamodt, Principal Consultant and Yesenia Avila, Associate Consultant at DCI Consulting Group 

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In the summer of 2014, OFCCP released a Notice of Proposed Rulemaking (NPRM) for collecting compensation data through an Equal Pay Report (EPR) as part of their initiative to combat pay discrimination. The EPR was slated to be final in November of 2015, as listed in the spring 2015 agenda, but was recently listed in the fall 2015 agenda with an expected date of May 2016. Although it may seem that OFCCP is just running behind schedule, it is interesting to note that a different proposed rule is in final draft form and currently at the Office of Management and Budget (OMB) for review and approval. This rule, which revises the existing Sex Discrimination Guidelines, is right on schedule. Given that the EPR is not moving along the pipeline, it is likely that the final rule, even if published in May 2016, will not be effective during the current administration. If so, history may repeat itself and the EPR may be eliminated by a new administration the same way the Equal Opportunity Survey was back in 2006.

Furthermore, a final EPR requirement seems even less likely given EEOC’s current efforts for a separate pay data collection tool. We believe the EEOC is continuing the work to develop a method of pay data collection that would be in conjunction with the annual EEO-1 and related filing requirements. For more information on the pilot study of this data collection and historical background, we recommend reviewing this DCI blog. It is anticipated that the new data collection guidance will be final in the fall 2016. Based on this, it would be reasonable to expect that this new information would be required for the 2017 EEO-1 filings.

Only time will tell what the fate of the EPR will be, as well as the outcome of EEOC’s efforts. Stay tuned.

By Amanda Shapiro, Senior Consultant, and Yesenia Avila, Associate Consultant at DCI Consulting Group

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The 33rd Annual Conference for the National Industry Liaison Group was held July 28-31, 2015 in New York City and brought together members of the federal contractor community, government officials, and EEO/affirmative action practitioners. The conference was particularly memorable as this year is the 50th anniversary of Executive Order 11246 – an important marker in furthering the goal of equality in the American workplace.

DCI Consulting Group (DCI) staff members were involved in a number of NILG presentations and attended a variety of sessions. Session summaries and highlights can be found below.

  1. OFCCP Keynote Address
  2. EEOC Keynote Address
  3. Self Auditing your Applicant Screening & Tracking Processes to Ensure Compliance & Implementing Outreach & Accommodation Trackers
  4. Big Data Analytics and HR Technology: Meeting Emerging Challenges in Sourcing and Selection
  5. Pepsi ACT – Achieving Change Together: PepsiCo’s Disability and Inclusion Initiative
  6. Navigating the New Frontier of Steering Claims
  7. Compliance Strategies for a New Era of Compensation
  8. Recruiting – Social Media & Technology
  9. Self-Identification
  10. From Base comp to total comp & everything in between
  11. Outreach – Individuals with Disabilities: Innovative Strategies for Enterprise-Wide Disability Inclusion & 503 Compliance
  12. Outreach – Individuals with Disabilities/Veterans: Successful Assessment of Veteran & Disability Outreach
  13. Stepping into the Unconscious Mind. Understanding Implicit Bias and Job Steering Decisions, Analysis, and Prevention.
  14. Update on Contemporary OFCCP Enforcement: A View from 2014 Settlement Data
  15. Legal Experts Panel
OFCCP Keynote Address

The Director of OFCCP, Patricia Shiu, provided OFCCP’s keynote address. Given the historic year, it was not surprising that her speech opened with reference to the passing of Executive Order 11246 and briefly chronicled important events leading to that significant moment. Director Shiu also made mention of another significant moment in history, one that happened this year, in which two new groups were added to the list of protected bases under EO 11246: sexual orientation and gender identity. Other themes included relationship building and “making inclusion a reality.” Before concluding the keynote address, Director Shiu accepted, on behalf of OFCCP, a commemorative plaque for the 50th anniversary of EO 11246.

EEOC Keynote Address

Charlotte Burrows, Commissioner of the Equal Employment Opportunity Commission, delivered the EEOC Keynote Address, where she mentioned that 2015 is a year of celebration, with both the 25th anniversary of the Americans with Disabilities Act and the 50th anniversary of the EEOC, but also said that there is a long way to go with regard to equal pay and LGBT rights.

Commissioner Burrows stated that equal opportunity and equal pay are not only important for compliance, but are actually in a contractor’s best interest as they lead to the best outcomes for both the contractor and its employees. Additionally, as the U.S. is becoming more diverse and more business is conducted in global markets, companies with a diverse workforce will be better suited to recruit and retain talented employees. She offered three proactive strategies to address pay equity:

  1. Make it clear throughout your organization that pay equity is a priority with support from the top.
  2. Conduct statistical analyses of pay and, if you find problems, fix them.
  3. Allow employees to discuss pay with coworkers.

She also spoke about claims related to sexual orientation, where she warned contractors that often the initial allegation turns out to not be an issue, but the company’s response to the allegation may lead to a retaliation or intimidation claim. Before concluding the keynote address, Commissioner Burrows accepted, on behalf of EEOC, a commemorative plaque for the 50th anniversary of the agency.

Self-Auditing your Applicant Screening & Tracking Processes to Ensure Compliance & Implementing Outreach & Accommodation Trackers

This session, presented by Valerie Hoffman of Seyfarth Shaw, LLP, discussed ways to assess your own applicant screening and tracking processes in efforts to identify and prevent discriminatory selection practices. Several tools were identified to ensure consistency in the applicant screening process, including:

  • Articulated competencies resulting from a thorough job analysis
  • Use of standard, structured interview questions embedded in the applicant tracking system
  • Use of validated tests (within the last 5 years or after changes in job occurred)
  • Training of those conducting interviews or administering tests

In self-auditing your applicant screening and tracking process, it is important to focus your efforts on several key areas that can minimize the potential for adverse impact:

  • If using an external source to list your jobs with ESDS, conduct an annual audit to ensure all relevant jobs are listed, including states where electronic listing is not available.
  • Ensure basic qualifications and any special physical or mental requirements are listed in the requisition posting for jobs that require them.
  • Post a unique job requisition for each opening or, if requisitions are not unique, ensure there is a system for identifying each opening and tracking applicants who were considered.
  • Close all requisitions at least once each AAP year to limit risk and the size of the pool to be analyzed for adverse impact.
  • Minimize or eliminate the use of general position requisitions.
  • If candidates who have not applied for a particular opening are considered, ensure they are transferred into the ATS to the job for which they are considered.
  • When using Job Boards, LinkedIn, Facebook, Google or other search sites, ensure that candidates are forwarded to your Careers website so that they are screened within the ATS once they have indicated interest in employment.
  • Ensure that external recruiters (i.e., staffing firms) are maintaining applicant tracking for jobs for which they act as your screening agent. For example, administering compliant self-identification methods including disability self-identification according to OFCCP’s specific format requirements.
  • Maintain all paper applications, including those who do not have basic qualifications for the position because the definition of applicant may be broader than OFCCP’s Internet applicant definition.
Big Data Analytics and HR Technology: Meeting Emerging Challenges in Sourcing and Selection

In a panel moderated by Jon Geier of Paul Hastings, LLC, panelists discussed how “big data” has affected use of the Internet applicant rule and human resources technology, tools, and practices. Presenters on the panel included: Heather Morgan of Paul Hastings, LLP, Nathaniel Glasser of Epstein Becker Green, Rick Holt of Resolution Economics, and Kathleen Lundquist of APTMetrics.

Panelists discussed the changing definition of “big data” from the sole use of the phrase in referring to data in terms of velocity, volume, and variety, to the more recent use of the phrase in referring to methods and tools. The focus of the majority of the panel was on challenges and concerns with the use of big data in employment. Such concerns included:

  • Creation of predictive algorithms without a set of criteria based in theory.
  • Data issues, such as statistical inaccuracies due to noise accumulation.
  • Appropriate application of the Internet Applicant Rule in record-keeping obligations and data management techniques.

The panel closed with a list of suggested questions for contractors to ask of assessment vendors. These questions were:

  • Has the process demonstrated adverse impact?
  • What validation evidence has been collected to establish the job relatedness of the algorithm? Evidence collected for each job?
  • Does the validation evidence comply with the requirements of UGESP? Get a copy of the validation study.
  • What steps have been taken to ensure the security of test questions?
  • What kind of ongoing monitoring do you provide as we continue using the instrument?
Pepsi ACT – Achieving Change Together: PepsiCo’s Disability and Inclusion Initiative

Included under the general theme of “Individuals with Disabilities and Veterans Strategy/Talent Management”, this session focused specifically on Pepsi’s major initiative to increase the hiring and retention of these groups. The initiative is known as the Pepsi ACT (Achieving Change Together). Pepsi ACT was first piloted in 2014 and has continued to expand in 2015. Panelists included a representative from Pepsi, as well as representatives from their partners in ACT: Ability Beyond and the Nevada State Rehabilitation Division. Pepsi ACT is largely focused on partnering with local organizations to find talent and then providing a track for applicants to train for the application process in order to increase their success in applying for the position (and remaining employed). Training includes “soft” courses like interview skills and retention skills (e.g., practicing scenarios), as well as “hard” skills like on the job training for position(s).

To begin this initiative, panelists stressed that the first step involved branding. Before starting PepsiCo needed to figure out what their goal was, how to communicate that internally and externally, and ultimately create their brand. To begin the Pepsi Act program, two test sites were selected in order to pilot their initiative. Panelists advised this should not be seen as a human resources or compliance initiative and not approached as a charitable action because it won’t stick long term (i.e., it will be the first program to be cut when budgets are tough). Also, it is important to imbed this process in the culture in order for it to last; otherwise, once your champion leaves the organization it may not last. They recommended having operations managers “lead the charge” locally. Much of the initiative is education. It was important to educate sites, employees, managers, and applicants that this initiative was not creating new or special roles, but rather a different track to get at the same job(s).

Several other tips for a successful initiative included:

  • Create videos to share success stories from test sites to educate other sites about the initiative.
  • Leverage social media to communicate brand and initiatives.
  • Utilize display boards to communicate with front line workers who may not routinely access the intranet or other sites.
  • Partner with ATS and HR personnel to streamline the data aspect.
  • Internal training for managers and other employees.
  • Host open houses for the community organization with whom you are partnering or would like to partner with. Bringing these representatives onsite to learn about the jobs and facility, as well as your initiatives, will help to bridge the gap and find candidates.
  • Lastly, panelists reminded the audience that nothing happens as fast as you would hope and it is important to remember when getting a new initiative off the ground.
Navigating the New Frontier of Steering Claims

Steering remains a hot compliance topic, as OFCCP continues to direct compliance officers to look for and investigate steering claims during compliance reviews. We have written extensively on the issue of steering, which is defined as the policy or practice of guiding applicants or employees towards or away from certain jobs based on protected characteristics. It is an OFFCP focus given its relationship to hiring, promotional, termination, and compensation practices.

In this session, panelists including Christine Hendrickson and Michelle Mellinger (Seyfarth Shaw LLP), Michael DuMond (Economists Inc.), and Rob Speakman (Welch Consulting), reviewed several “steering” cases that are familiar to regular readers of our blog. Using the cases as a framework, the panelists presented several fictional case studies to highlight common fact patterns in steering cases and to underscore the importance of proactively assessing workforce data and practices for such patterns. A preliminary analysis involves an evaluation of specific data areas:

  • Hiring patterns
  • Workforce Analysis
  • Incumbency to Availability Analysis
  • Compensation
  • Promotional opportunities

An important take away from the panel was a reminder of the distinction between correlation and causation. Simply because two variables are correlated (e.g., sex category tends to be correlated with job title, such that a higher proportion of men are in Title 1 versus a higher proportion of women in Title 2) does not mean that one variable is causing the other (i.e., sex status is not necessarily the reason for the proportion patterns across the two jobs). The “steering” cases that OFCCP settled make it clear that OFCCP infers causation on the basis of statistically significant disparities. Thus, it is imperative for contractors to have robust practices for selection, placement, and promotion to defend against steering claims. The more formalized and structured the processes, the better contractors can point to applicant choice and job fit as the reason for individuals being placed into the positions they are placed into.

Panelists presented a number of key takeaways for reducing the likelihood of steering allegations:

  • Remember the distinction between correlation and causality – correlation does not imply causality.
  • Require applicants and employees to unilaterally choose jobs or career paths for themselves, offering no guidance on those decisions.
  • Keep job postings open to everyone.
  • Use a requisition system that does not “co-mingle” levels or shifts.
  • Reject applicants that apply generally for “any” or “all” positions.
  • Prevent movement of applicants between requisitions.
  • Maintain documentation to support defense that individuals are not interested in or qualified for higher paying positions.
  • Ensure a competitive promotion process.
  • Use and enforce a written, neutral procedure when placing employees in assignments.
  • Set pay by legitimate, non-discriminatory factors.
  • Self-monitor your pay and placements.
Compliance Strategies for a New Era of Compensation

DCI’s Joanna Colosimo presented with Dean Sparlin of Sparlin Law Office, Dr. Rick Holt, and Elizabeth Bradley of Fortney Scott. The panel discussion focused on the pros and cons of conducting a proactive compensation analysis, methodologies that are useful for contractors, and considerations for contractors conducting proactive compensation self-audits. Themes from the session included:

  • A primer on OFCCP strengthened enforcement and regulatory activity regarding compensation. This included an overview of Directive 307, the proposed Equal Pay Report, Pay Transparency, and the Revised Scheduling letter data points.
  • Discussion of the legal requirements related to a proactive compensation analysis. The panel discussed when and why contractors should be conducting proactive pay analytics.
  • Appropriate units of analysis. The panelists discussed the merits of conducting analytics by job title or other pay groupings, such as salary grade, that would be meaningful to a contractor. There was some discussion on the merits of proactively examining AAP job group as the pay group in the proactive compensation analysis to mirror what OFCCP may do during an audit, in addition to critically evaluating the job group structure in the Affirmative Action plans. However, most panelists concurred that the best unit of analysis is one that mirrored the contractors’ pay practices.
  • Types of pay being analyzed in OFCCP audits. This included a noted trend of total compensation (which may not be an appropriate pay outcome from a methodology perspective), incentive pay, bonus pay, and base pay.
  • The importance of conducting pay analyses under attorney-client privilege.
  • Practical considerations. This included a discussion of how merit variables such as education and prior experience are stored in HRIS systems, as well as what data points OFCCP is expecting to see during an audit submission. Typically OFCCP is expecting to see all items outlined in the scheduling letter, yet, practically, not all data points are easily accessible to contractors.
  • Preparing contractors for OFCCP audits. The panel discussed that experts are often seeing the use of a compensation interview during the course of an audit. Specifically, contractors are being asked to have the individual in charge for establishing compensation at an organization to be interviewed by telephone early during the desk audit stage.
Recruiting – Social Media & Technology

During this session, panelists discussed ways federal contractors can successfully leverage social media, to identify and engage prospective candidates, while remaining in compliance with Equal Opportunity and Affirmative Action regulations. Although social media can serve as a great source for identifying passive candidates, much attention has to be given to complying with recordkeeping guidelines and ensuring the identification of who is deemed an applicant.

A consistent message echoed throughout the discussion was regarding the development and implementation of social media sourcing guidelines. Panelists shared that this can ensure recruiting professionals are aware of what needs to be done in order to stay in compliance, specifically with the Internet applicant rule. In establishing social media guidelines, some advice included:

  1. Guidelines should clearly define “expression of interest” (e.g., only applicants who come through the ATS),
  2. define when candidates are considered (e.g., only when there is an open position),
  3. describe how recruiters communicate with individuals (e.g., scripted email that invites a prospective applicant to review a link tied to an open position), and
  4. describe how to manage relationships with passive candidates (e.g., creating a talent community).

“A Proven Roadmap to Progress Toward 7% Self-Identification and Disclosure Objectives and Practical Solutions to Address Challenges Along the Way”

In a panel moderated by Katherine McCary, president of C5 Consulting, panelists discussed best practices for encouraging increased self-identification rates for individuals with a disability with the goal of meeting the 7% employment objective. Through the lens of each of their companies, panelists shared what organizations can do to increase self-identification, with the caveat that additional time is required to have robust evidence of their company’s program successes.

Katherine discussed various obstacles to self-identification; such as individuals being stigmatized or discriminated against, not seeing any personal gain, and not realizing they have a disability. While data typically best illustrates the makeup of a workforce, understanding unique disabilities helps contractors make progress toward a culture of inclusion. Communicating how the information will be used and that it will be kept confidential is key.

Bob Vetere of Northrop Grumman opened by speaking of the need to create a culture of diversity rather than an isolated campaign for self-identification, with the understanding that you may never reach the 7% utilization, though important to work toward. Among Bob’s recommendations were the suggestions of utilizing a welcoming statement on contractors’ websites, creating an engaging environment, and providing a self-service portal for accepting and handling requests for accommodation. Lori Kirsch of Florida Blue further focused on the need for cultural development through open discussion of leadership support, compliance standards, and cultural goals within the organization. Additionally, Lori shared that Florida Blue utilizes a dedicated recruiter to act as a liaison for individuals with a disability.

Marina Williams of Lockheed Martin emphasized the need for contractors to tap into their existing internal resources to best develop and celebrate a culture of diversity. Specifically, Marina suggested early and regular communications across the organization and to leverage existing communications and branding, as well as continuing development through communication and celebration of milestones and achievements. Jodi Woundy of Merck & Co., Inc. followed with a sample from the video series the organization has developed to engage their workforce in the self-identification process. Jodi suggested that pairing the videos with communications sponsored by senior leaders conveys to employees the importance the company places on employing and supporting individuals with a disability.

From Base Comp to Total Comp & Everything In Between 

During this session, Mickey Silberman from Jackson Lewis P.C. discussed compensation as it relates to OFCCP’s new tools and new rules and provided guidance and best practices for federal contractors and subcontractors. With the release of Directive 307 and the new scheduling letter and item 19, contractors must shift their focus to clearly understand their compensation systems. He explained that compensation is one of the President’s top EEO enforcement priorities and the agencies are getting the “tools” needed to uncover and eliminate pay discrimination. More specifically, two of the tools coming soon are the Equal Pay Report and the proposed “Pay Transparency” Rule. The Equal Pay report would require contractors to submit company-wide compensation data on an annual basis and the Pay Transparency rule would prohibit discrimination and retaliation against applicants and employees who discuss pay. Below are some key takeaways contractors can follow to prepare:

  • Review existing policies to ensure there are no restrictions regarding pay information.
  • Identify variables/factors that affect pay and be ready to provide an explanation for each.
  • Increase budgets for system changes and new requirements.
  • Review current systems that store variables/factors related to pay and develop a plan to combine data (e.g., performance scores, education, salary, etc.).Conduct privileged pay analyses and focus on base and total comp.
  • Identify and train all personnel involved in pay (e.g., Hiring manager, Talent manager, Supervisors, etc.).
Outreach – Individuals with Disabilities: Innovative Strategies for Enterprise-Wide Disability Inclusion & 503 Compliance

Speakers from the US Business Leadership Network (USBLN) discussed tools available to aid in evaluating a contractor’s extent of 503 compliance and disability inclusion, as well as some tips gleaned from contractors. Tips of note included the need for executive leadership team support for disability inclusion initiatives and utilizing cross-function teams to implement those initiatives. Leading organizations establish a disability employee resource group and centralize the accommodation process so that direct managers don’t have budget pressure for those requests. Regarding self-identification initiatives, using email alone to inform employees about the purpose of the survey was not as effective as:

  1. implementing a full campaign utilizing different media (i.e., videos, posters, voicemails),
  2. explaining why it is important for employees to participate (i.e., anyone could become someone with a disability – what kind of company do you want to be working for if it does/did happen to you),
  3. explaining how the results are confidentially maintained,
  4. including top executives or other employees willing to speak about their decision to participate, and
  5. training managers to be able to respond to employee questions about the survey is recommended.
Outreach – Individuals with Disabilities/Veterans: Successful Assessment of Veteran & Disability Outreach

This session focused on strategies for improving outreach and recruitment of disability and veteran populations, as opposed to assessment. Key takeaways on veteran outreach and recruitment included the recommendation that organizations internally evaluate the purpose for seeking to recruit veterans and be able to articulate that purpose. In addition, it was recommended that contractors enlist the assistance of employees who are veterans, where possible, to aid in providing insight to the veteran population and educate executives and hiring managers on this population. It was emphasized that the entire employee life cycle should be evaluated. This means identifying barriers in the recruiting systems and in the workplace and also educating the workforce, creating support for inclusion, and working to build brand recognition with disabled consumers who are a loyal consumer base. When asked about the assessment piece of compliance, the speakers pointed to tools being used to track outreach and recruitment efforts, including philanthropic donations, but did not include specific methods for evaluating the effectiveness of individual efforts.

Stepping into the Unconscious Mind. Understanding Implicit Bias and Job Steering Decisions, Analysis, and Prevention.

A legitimate steering claim would be one in which individuals are placed into particular organizational positions based on nothing more than protected group status. In this session, Julia Mendez (PeopleFluent), Charles Mullin (ERS Group), and Anna Nesterenko (ERS Group) provided an overview of bias and stereotype theory and research, which is the basis of OFCCP’s steering claims.

Presenters defined bias as “a subjective preference toward a particular viewpoint or belief that prevents a person from maintaining objectivity.” Unconscious bias (i.e., those subjective beliefs of which one may not be acutely aware) is distinguished from conscious prejudice and discrimination in which preferences or are known to and acknowledged by the individual who holds the beliefs. An example of unconscious bias that has been demonstrated and replicated in empirical research is that certain jobs tend to be associated with certain sex categories by many people (e.g., many individuals tend to think of men when they consider the job of Electrician). Similar examples may be found for race. As such, to the extent that sufficient guardrails are missing to protect against the influence of implicit bias in recruiting, selection, and placement, such processes may be vulnerable to discriminatory decisions and OFCCP challenge.

The presenters offered ten previously published strategies for combating unconscious bias in the workplace:

  1. Recognize that as human beings, our brains make mistakes without us even knowing it.
  2. Reframe the conversation to focus on fair treatment and respect, and away from discrimination and “protected classes”.
  3. Ensure that anonymous employee surveys are conducted company-wide to first understand what specific issues of hidden bias and unfairness might exist at the workplace.
  4. Conduct anonymous surveys with former employees to understand what issues they faced.
  5. Offer customized training based on survey results.
  6. Offer an anonymous, 3rd party complaint channel.
  7. Initiate a resume study within your industry, company and/or department to see whether resumes with roughly equivalent education and experience are weighted equally, when the names are obviously gender or race or culturally distinct.
  8. Launch a resume study within your company and/or department to reassign points based on earned accomplishments vs. birth traits.
  9. Support projects that encourage positive images of persons of color, LGBT and women.
  10. Identify, support and collaborate with effective programs that increase diversity.
Update on Contemporary OFCCP Enforcement: A View from 2014 Settlement Data

In this strategic leadership session, DCI’s David Cohen presented on OFCCP enforcement trends. According to Cohen, OFCCP’s top enforcement priorities are:

  1. Steering
  2. Compensation
  3. Entry-Level Failure to Hire Cases
  4. Good Faith Efforts
  5. Record Keeping

However, Cohen claimed, the data taken from DOL’s Public Enforcement Database show that the agency “is still trying to figure out compensation,” as indicated by a lack of settlements resulting from compensation discrimination and the majority of discrimination findings (70.58%) resulting from hiring cases in FY 2014.

Additionally, the total number of compliance evaluations and the percentage of those evaluations to result in a Conciliation Agreement or Financial Remedy are all lower in FY 2014 than in any other year under the Obama administration.

Other important takeaways from this session included:

  • Contractors in the Northeast and Mid-Atlantic regions should expect more pay discrimination cases.
  • There was at least one case where OFCCP pursued a compensation claim based on disability.
  • OFCCP will no longer look at compensation comparing white employees to “total minority” employees, but will instead be comparing the different race groups to each other.
  • Under the new Item 19 request, OFCCP will be increasingly looking at other forms of compensation besides base pay, such as bonuses.

Cohen’s advice is to conduct internal proactive analyses of base pay, and to consider analyzing additional forms of compensation as well, such as bonuses, commissions, and overtime pay. He suggests that OFCCP has said that they will follow Title VII principles and case law, so contractors should be conducting multiple regression analyses using “similarly situated employee groups” in their proactive analyses.

Legal Experts Panel

On the final day of the conference, David Fortney of Fortney & Scott moderated a panel of legal experts. The session was an effective wrap-up of the conference, with Fortney asking the panel to provide opinions on topics brought up in sessions over the previous two days. Some of the key takeaways from the panelists:

  • Valerie Hoffman of Sayfarth Shaw stated that, while both the EEOC and OFCCP say equal pay is a top priority, their inability to identify compensation issues is the reason for the focus on steering. However, steering is a placement problem, not a compensation problem. Her advice to contractors was to conduct pay analyses, fill in holes in your data (such as prior relevant experience), and make sure you have the tools to assess progress.
  • Mickey Silberman of Jackson Lewis said that despite the pressure on OFCCP to find pay discrimination, it is actually proving difficult for them to do so. The shift of focus to steering is because OFCCP is trying to use the same framework in compensation cases that has worked in failure to hire cases in the past.
  • Steering is not only possible in entry-level jobs, according to Nita Beecher of Mercer. She advised that an analysis of steering should make sure people are not getting stuck in their career advancement and that people are being promoted equitably. She also said that, while there are not many compensation findings by the agency, the ones that do happen tend to be bad.
  • According to Joe Lakis of Norris, Tysse, Lampey, & Lakis, the current relationship between the regulators and the regulated is the most tense and hostile that he has seen in 21 years, and that contractors are expending a lot of time, energy, and money trying to engage in good faith efforts.
  • Jon Geier of Paul Hastings advised that adverse impact analyses should be conducted using the “highest-selected” group as the comparator. In audits, he recommends always conducting any analyses prior to submission for risk assessment purposes. With regard to transitional items, such as the new reporting for Section 503 and VEVRAA, he has not received any pushback from simply indicating that you are aware of the requirements and that they will be done. He stressed that a very important, but often overlooked, step in an audit is to send a “Hold” letter to establishments advising them to retain all relevant records when a scheduling or courtesy letter is received.
  • Geier also suggested preparing alternate versions of AAPs using groupings other than AAP job groups that may be more meaningful within the organization. This may facilitate cooperation between the compliance and diversity functions and get more buy-in from executives. He stressed that these analyses should be conducted under privilege.
  • Several panelists lamented that the agencies did not use their presence at the conference to provide new information to attendees.

By Brittany Dian, HR Analyst; Bryce Hansell, HR Analyst; Kristen Pryor, Consultant; Kayo Sady, Senior Consultant; Jana Garman, Consultant;  Joanna Colosimo, Senior Consultant; Dave Sharrer, Consultant;  Amanda Shapiro, Senior Consultant; Yevonessa Hall, Consultant; and Yesenia Avila, Associate Consultant at DCI Consulting Group



There appears to still be confusion around what contractors are required to do with the VEVRAA annual hiring benchmark. Specifically, what should a contractor compare to the hiring benchmark?

    1. The contractor’s employment of protected veterans
    2. The contractor’s hiring of protected veterans
    3. Nothing

As DCI discussed in our first blog on the topic, the regulations do not require contractors to compare the benchmark to anything. As discussed in our second blog, during a DOL webinar a Solicitor of Labor (SOL) attorney indicated that the hiring benchmark should be compared to hires; however, an OFCCP representative indicated that the comparison should be to the contractor’s protected veteran employment. In our third blog, we explored OFCCP FAQs, which indicated that a contractor should compare the benchmark to hires. Hires, however, were defined to include internal movements. This raised the concern that a contractor could meet the benchmark without any external protected veteran hires.

Almost a year later, there is still no clarity about the hiring benchmark. This is evident in recent references, such as the OFCCP press release announcing the new national annual benchmark for VEVRAA as 7 percent. This press release stated that “contractors must compare the percentage of employees who are protected veterans in each of their establishments to the hiring benchmark set for that establishment.” [emphasis added]

In contrast, the revised itemized listing for the scheduling letter, outlines that the following must be submitted for item 14: “Documentation of the hiring benchmark adopted, the methodology used to establish it if using the five factors described in § 60-300.45(b)(2). If you are six months or more into your current AAP year on the date you receive this listing, please also submit information that reflects current year results.” Notice that the itemized listing only requires the percentage to be submitted. If the contractor is six months or more into the plan year then “results,” which are unclear in light of the regulatory requirements, are also supposed to be submitted.

In addition, the supporting documentation associated with the revised scheduling letter states that contractors shall “establish a benchmark for veteran representation in the workforce” and includes reference to “documentation of the hiring benchmark adopted, the methodology used to establish it if using the five factors, and the results of its comparison to incumbent workforce as described in 41 CFR 60-300.45.”  Again, this is interesting when considered in light of the lack of requirement to conduct any analysis in the regulations. [emphasis added]

As if this wasn’t enough, there is still more confusion around when the new percentage should be adopted. For example, if a contractor has a January 2015 plan, but had not finalized the plan before the revised VEVRAA hiring benchmark was posted, should they adopt a 7% or 7.2% benchmark? For more information about how the percentage is calculated see this previous blog. Note, the percentage will be updated in the March or April time-frame each year.

By Kristen Pryor, Consultant and Yesenia Avila, Associate Consultant at DCI Consulting Group

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21 January 2015

DCI predicts that the OFCCP will continue to stay busy in 2015.  Here are the top stories and trends we expect to see this year from the agency.

1.) Sex Discrimination Guidelines
2.) Construction Regulations
3.) Equal Pay Report
4.) VETS 4212
5.) 503/VEVRAA Implementation
6.) Steering
7.) Itemized Listing
8.) FAQs (LGBT and More)
9.) EEO is the Law Poster

Sex Discrimination Guidelines

In November 2014, the OFCCP sent a Notice of Proposed Rulemaking to the OMB for review and approval on the revised Sex Discrimination Guidelines.  We should expect to see the proposed rule for public notice and comment in early-mid 2015.  As soon as the NPRM is released from OMB and made public, DCI will notify contractors immediately.

Construction Regulations

The OFCCP mentioned revising the construction regulations in the FY 2015 Congressional Budget Justification. It is anticipated that an NPRM will be issued in FY 2015 addressing the affirmative action plan requirements for federal and federally assisted construction contractors and subcontractors. DCI will keep the contractor community updated on any developments from the OFCCP.

Equal Pay Report

Following the August 8, 2014 publication of the NPRM for a new Equal Pay Report, a public comment period was open through January 5, 2015 (extended from the original November 6, 2014 deadline). In brief, the proposed rule suggests that the OFCCP will annually collect summary W-2 compensation data from contractors, utilizing the data to determine an industry standard for identifying potential discrimination. Publication of the finalized rule is anticipated in late August 2015. Based on prior implementation timeframes for new regulatory data obligations and given the need for systems updates, it can be reasonably expected that the first equal pay reporting requirement under the new regulation would not occur until the start of 2017.

VETS 4212

As we reported in a prior blog, the Veterans’ Employment and Training Service (VETS) of the U.S. Department of Labor issued a final rule in September 2014 updating the reporting requirements for federal contractors under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). While the rule became effective on October 27, 2014, contractors will actually see the impact of these changes in 2015.

The primary change will be that VETS-100 and VETS-100A reporting will be replaced with the VETS-4212. In what we anticipate will be a welcome change to most contractors, the VETS-4212 requires that contractors will report protected veterans in the aggregate rather than by protected veteran category. This should ease the administrative burden of completing the report as well as provide more meaningful and practical data to VETS.

As we announced this morning, the OFCCP has released two FAQs related to the self-identification requirements under VEVRAA. Because VEVRAA requires contractors to invite applicants at the post-offer stage to self-identify whether “he or she belongs to one or more of the specific categories of protected veteran for which the contractor is required to report pursuant to 41 CFR Part 61-300” (VETS-4212), contractors are now only required to solicit whether those offered a job wish to identify as a protected veteran, regardless of category. However, the FAQs do clarify that contractors may continue to solicit information regarding the four categories of protected veteran if they wish to continue doing so, as long as they are reporting this information in the aggregate on the VETS-4212.

While there is no requirement to collect and maintain data on specific protected veteran categories, contractors may wish to do so to help identify disabled veterans who may require an accommodation, as well as to more easily identify when “recently separated” veterans are no longer a member of this protected category.

503/VEVRAA Implementation

This year will see the full implementation of the revised Section 503 and VEVRAA regulations covering individuals with a disability and protected veterans, respectively.  In addition to the changes that were effective as of March 2014, the remainder of the 503/VEVRAA provisions must be implemented as of each contractor’s next affirmative action date.  The following are some big picture NEW requirements that are being implemented for many January AAPs right now:

  • Voluntary self-identification of applicant disability (using the OFCCP form) and protected veteran status, both pre- and post-offer,
  • Voluntary self-identification of employee disability sometime during the plan year,
  • New external policy dissemination requirements,
  • EEO/AA policy statement changes,
  • Implementation of procedures to track outreach and recruitment efforts to assist with required annual evaluation requirements (if not already in place),
  • Formally documenting audit and reporting activities, and
  • Tracking data points for the “44k” analytics, including the number of job openings, jobs filled, total applicants and hires, as well as counts of disabled and protected veteran applicants and hires.

Please note that the new itemized listing requires contractors to submit documentation on some of these new requirements in addition to some of the existing 503/VEVRAA requirements. Contractors should verify these pieces are in place and up to date before an audit occurs.


The uptick in Steering allegations by the OFCCP in 2014 stimulated many DCI blog posts on the subject, multiple ILG conference discussions, and too many client conversations to count. And that is not going to change in 2015. The fact is, steering cases are low-hanging fruit for the OFCCP, and the fact pattern in steering cases is often very similar to the most common failure-to-hire settlements: placement into low-skilled, high applicant volume jobs using an unstructured, unstandardized system that is not evidently job-related. Thus, we expect steering allegations to increase in 2015 and encourage our clients to take stock of their selection and placement processes. In particular, we suggest that our clients audit their selection and placement systems (especially for lower level jobs) to ensure that they have appropriate standardization and validation evidence in place to defend against OFCCP steering claims.

Itemized Listing

For 2015 audit activity, be prepared to produce a lot more data at the desk audit stage, and endure a longer audit process. As we mentioned in a previous blog, the newly released scheduling letter and itemized listing revealed twenty-two requirements, compared to the eleven item listing that was previously used. In addition, enhanced data submission requirements were introduced for 503 (Items 7 – 10), VEVRAA (Items 11 – 14) and compensation (Item 19).

Although our December blog included information on the 503 and VEVRAA partial year request, we do want to note that this may not affect federal contractors who are now entering their transitional AAP year. So if you have a January or February 2015 plan date, and are now implementing subpart C, you would not be in the position to comply with this request. However, you should be prepared to produce your organization’s implementation plan.

For a quick comp review, please read our “compensation guidance summary” released in November.

FAQs (LGBT and More)

In an effort to help contractors navigate the sea of changes brought about in 2014, the OFCCP released a number of new FAQs near the end of the year. Several topics covered in the new FAQs included submission of partial year and compensation data under the new scheduling letter, options for storing self-identified disability data,  and defining employer-employee relationships for AAP purposes. DCI predicts that the OFCCP will continue to issue new FAQs throughout 2015 to address questions from contractors as they work to translate written requirements into tangible strategies for implementation. One topic that DCI expects to see covered in upcoming FAQs is guidance on implementing the new LGBT regulations. The final rule, which adds “sexual orientation” and “gender identity” as protected classes under Executive Order 11246, was published in the Federal Register on December 5, 2014. Although the rule states that data collection/analysis will not be required on the basis of sexual orientation or gender identity, contractors should be on the lookout for FAQs outlining the required changes for LGBT under the new rule.

EEO is the Law Poster

During the 2014 NILG conference, Debra Carr, the OFCCP’s Director of the Division of Policy and Program Development stated that the agency will be coordinating with the EEOC to update the EEO is the Law poster.  The updates are necessary to reflect the new regulatory landscape, including the new LGBT regulations.  However, no timeline has been put forth for this change as of yet.

By Joanna Colosimo, Senior Consultant; Keli Wilson, M.A., Senior Consultant; Jana Garman, M.A., Consultant; Dave Sharrer, M.S., Consultant; Kristen Pryor, M.S., Associate Consultant; Kayo Sady, Ph.D, Senior Consultant; Yesenia Avila, HR Analyst; Yevonessa Hall, M.P.S., Consultant; Rachel Gabbard, M.A., HR Analyst; and Eric Dunleavy, Ph.D., Principal Consultant, DCI Consulting Group 



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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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