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Director Shiu: Federal contractors, OFCCP need to communicate “without filters”

November 1st, 2011  |  Cynthia L. Hackerott

The OFCCP and federal contractors need to speak to each other “without filters,” OFCCP Director Patricia A. Shiu told the audience at the National Employment Law Institute’s (NELI) Twenty-Ninth Annual Affirmative Action Briefing held in Chicago, Illinois. Shiu was one of several speakers featured at the briefing which was co-chaired by OFCCP expert John C. Fox, President and a founder of Fox, Wang & Morgan P.C. The OFCCP Director stated that contractors should not feel they need to rely on lawyers and other compliance experts to decipher what the OFCCP means. “Don’t believe everything you read” regarding OFCCP enforcement activities, Shiu cautioned.

Compensation data collection tool. As an example, Shiu noted some of the reactions to the OFCCP’s Advance Notice of Proposed Rulemaking (ANPRM), published in the Federal Register on August 10, 2011 (76 FR 49398-49401), that sought stakeholder comments on 15 specific inquiries related to the development and implementation of a compensation data collection tool. Shiu said that the agency did not start the process of developing this tool with pre-conceived notions of where it would end up and that is why it published the ANPRM posing those 15 questions. She explained that the 15 questions are “very open-ended” because compensation analysis is very difficult and the OFCCP wants to learn how contractors compensate their employees. “The way we approached wage discrimination before was too narrow,” Shiu stated.

The comment period on this APRM closed on October 11, 2011. Shiu said that many of the thousands of comments submitted in response to the ANPRM simply objected to the idea of any compensation data collection tool. However, Shiu maintained that a compensation data collection tool is needed because data is the “linchpin” for civil rights enforcement. Data collection is vital to enforcement because “what is measured gets done.”  

According to Shiu, many of the other comments on the APRM projected what the commenter believed the OFCCP is going to do, and then responded to this projected action. Contractors “can take a break from all that speculating,” Shiu advised.

Echoes of NILG. The majority of Shiu’s remarks at the NELI briefing largely echoed her keynote address on July 27 of this year at the Industry Liaison Group National Conference in New Orleans. She again stated that “affirmative action can no longer be defined by good faith efforts” and emphasized the importance of clarity in enforcement. The Director detailed how her agency is updating and revising out of date regulations, including: (1) the regulations at 41 CFR Part 60-741 that implement the nondiscrimination and affirmative action provisions of Section 503 of the Rehabilitation Act of 1973 (one again noting that the upcoming proposal will be a “game changer”); (2) the regulations in 41 CFR Part 60-4 implementing the affirmative action requirements of Executive Order 11246 that are applicable to federal and federally assisted construction contractors; and (3) the regulations at 41 CFR Part 60-20 which set forth interpretations and guidelines for implementing the nondiscrimination provisions of EO 11246 in regard to sex.

Shiu also noted that the OFCCP’s revisions to its Federal Contract Compliance Manual are near completion and that the agency’s compliance reviews are, and will be, more thorough and careful, focusing on quality rather than quantity.

Midwest Region changes. The OFCCP’s Midwest Region, headquarted in Chicago, is currently in transition. Shiu stated that she learned value of diversity in Chicago, having grown up in the city’s Hyde Park neighborhood. This summer, both Midwest Regional Director Sandra Ziegler and Deputy Regional Director Shirley Thomas resigned from the OFCCP. Shiu reported that the agency currently has a transition team in Chicago that is getting new leadership in place and working to make the Midwest Region more like other regions in terms of organization. Melissa Speer, the Acting Director of the Southwest and Rocky Mountain Regional Office, is also serving as the Interim Director for the Midwest Region.

Shiu also said that before she became the OFCCP Director, the agency had regions that acted “pretty independently,” and that she is working to make the regions more uniform.

Subsequent to Shiu’s remarks, Fox said that both Ziegler’s and Thomas’ resignations were voluntary. In addition, he explained that Ziegler had centralized the Midwest Region by taking all authority out of the district offices and running everything out of the Chicago regional office. Fox reported that currently, Shiu is decentralizing the Midwest Region and has to hire at least eight district directors, plus a regional director and a deputy director; he predicted this transition will take about a year.

As OFCCP Director, Shiu oversees a staff of nearly 800 employees nationwide. She also serves on the National Equal Pay Enforcement Task Force and represents Secretary of Labor Hilda L. Solis on the federal Interagency Working Group of the White House Initiative on Asian Americans and Pacific Islanders.

Fox represents companies and tries cases in state and federal courts that involve primarily individual trade secret claims, employment contract disputes, wage-hour and employment discrimination class actions, wrongful termination, corporate investigations, and the use of statistics in employment matters. Fox previously served as Executive Assistant to the Director of the OFCCP, where he was responsible for all enforcement and policy matters.

NELI’s Twenty-Ninth Annual Affirmative Action Briefing was held in Chicago on October 20-21, 2011. For more information on NELI, including its publications and future programs, call (303) 861-5600 or go to NELI’s website at: www.neli.org.