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NELI to hold OFCCP mid-year update webinar, will cover recent changes in audit procedures and litigation strategy

The National Employment Law Institute (NELI) will hold a live, interactive Office of Federal Contract Compliance Programs (OFCCP) mid-year update webinar on March 24, 2011, and again on April 7 at the following times:

  • 1:00 p.m. – 3:00 p.m. (Eastern)
  • 12:00 noon – 2:00 p.m. (Central)
  • 11:00 a.m. – 1:00 p.m. (Mountain)
  • 10:00 a.m. – 12:00 noon (Pacific)

NELI notes that the last six months have been the most active period of change at the OFCCP under the Obama Administration to date. In the webinar, OFCCP expert John C. Fox, Esq. (of Fox, Wang & Morgan, P.C. in San Jose, California) will identify and discuss the many recent changes in OFCCP audit procedures and application of substantive discrimination rules. Specific developments to be covered in the webinar include:
(1) The OFCCP is the lead agency in investigating compensation discrimination in America:

  • The OFCCP has replaced the Bush Administration’s Guidelines on Compensation with new compensation investigation instructions;
  • The agency has abandoned the “5:30:3 Trigger Test” in favor of a new “2or2 Test” during Desk Audit;
  • The OFCCP has deployed a new set of so-called “mini-regression “factors to assess contractor compensation practices when the “2or2 Test” proves positive;
  • Options contractors have if they fail the “2or2 Test” when the OFCCP requests additional collection of data;
  • Renewed formal coordination protocols between the EEOC and the OFCCP and its implication for OFCCP audits, especially as to compensation;
  • Where the Office of Management & Budget is amid changing OFCCP audit procedures; and
  • Discussion of the options contractors should consider in light of OFCCP’s focus and concentration on contractor compensation systems.

(2) Abandonment of the Bush Administration’s Active Case Management Directive and issuance instead of a new Active Case Enforcement initiative and the new permissions it grants OFCCP investigators to come on-site to audit federal contractors.

(3) Solicitor of Labor Pat Smith’s recent decision to use the OFCCP’s lawyers in ways different from the way the OFCCP used them in the Clinton and Bush Administrations and the resulting increased number of OFCCP Complaint filings now occurring, including the Solicitor’s: (a) aggressive approach to discrimination law damages and their limitation by the failure of rejected applicants to properly mitigate their damages; and (b) frequent use of “Expedited Hearing Procedures” to bring cases to trial within 30 days of an administrative complaint and the practical and strategic implications for HR and company lawyers.

(4) The OFCCP’s policy with regard to the health care industry audits pending contractor appeals of OFCCP victories in the University of Pittsburgh Medical Center and Florida Hospital cases, including OFCCP’s new Directive on Health Care Industry Enforcement; and

(5) Return of OFCCP approvals of Functional Affirmative Action Programs (FAAPs), and many other issues.

For complete information, visit NELI’s webpage on this webinar at: http://www.neli.org/programs2.asp?ProgramID=28.