Just In Case You Didn't the Feds Were Controlling Enough In HR

Before I start on my "rant" for the day I want to thank Stephanie R. Thomas for the post that is the inspiration for my post today. Her post, entitled The Men from NEPET Are Coming , appeared on the Compensation Cafe on August 20, 2010. In that post she pointed out a report from the government. This report, entitled National Equal Pay Enforcement Task Force (Stephanie's NEPET), is a document from the White House that discusses the cross agency efforts to get the Paycheck Fairness Act passed by increasing the amount of scrutiny paid to, and information gathered from, businesses in the United States. My post will summarize what I consider to be the "high points" (or low  points depending on your point of view) of this report. For a complete understanding of the what you will be facing you need to read the report and Stephanie's post in addition to what you are reading here. Just follow the links above.

In his campaign to be elected president and in the State of the Union address, Barak Obama made it clear that one of his goals was to erase pay inequities based on gender. Getting the Lilly Ledbetter Act passed was considered to be the first step. The report points out the next step "To implement President Obama’s pledge in the State of the Union address to crack down on violations of equal pay laws, the Administration has created the National Equal Pay Enforcement Task Force, bringing together the Equal Employment Opportunity Commission (“EEOC”), the Department of Justice (“DOJ”), the Department of Labor (“DOL”), and the Office of Personnel Management (“OPM”)"

The report says that there are five areas that need to be addressed. These include:

1. Three agencies of the government have jurisdiction over pay discrimination and they do not coordinate efforts enough;
2. They feel they don't have enough data on pay and gender. So they will develop methods to extract this information from all the employers in the US, especially federal contractors;
3. They think employees don't know enough about their rights. The implication being that if they did they would turn their employers in more often. Also, employers don't know their obligations under the law, so they are going to provide information. They will also be hiring and training more investigators in order to step up criminal prosecutions.
4. They have determined they are not as "clean as a hound's tooth" so they are going to make sure they are complying with the laws too. (What an origianl concept!)
5. They don't feel the existing laws, especially the Equal Pay Act, are sufficient to handle the situation. So doing what all governments are compeled to do, they want to pass a new law, the Paycheck Fairness Act.

Here is my interpretation of their solutions:

1. Make sure that all agencies responsible do a better job of coordinating with each other. Hire more investigators and ferret out instances of pay discrimination in whatever form. Especially make the Office of Federal Contract Compliance Programs (OFCCP) an agent of the EEOC in enforcing wage discrimination based on gender violations in federal contractors. Increase the focus of EEOC on wage discrimination. Remove restrictions on the OFCCP regarding audits, hire more investigators and prosecute more employers.
2. Increase the methods used to extract data on wages from employers. If you are a federal contractor the amount of information you will have to reveal will be increased substantially. The goal is to reveal companies in violation of the laws (pick one) and to prosecute them. Failure to provide such information will result in loss of contractor status. Since they do not have that hold over the private sector they will probably change the EEOC reporting requirements and will be looking for more information. (My prediction is that the minimum company size for reporting on the EEO-1 will be dropped below 100, probably to the 15 employee level)
3. Undertake a public education campaign in order to make it clearer to women why and how they can sue their employers for pay discrimination. They will educate employers on their obligations in order to remove "ignorance of the law" as any excuse. After hiring several hundred more investigators they will be trained to find cases to prosecute.
4. Clean up the Federal government, so businesses can't complain that the Federal government isn't following its own rules.
5. Working with unions, push and cajole members of Congress to pass the Paycheck Fairness Act, because, after all, that is what government is in the business to do, pass new legislation.

Ok I admit, if  you read the report, they probably didn't use the same language I did. I was taking some "poetic license". But it is clear that the intent is to get harder and tougher on businesses, ESPECIALLY FEDERAL CONTRACTORS. If you are a woman working in HR at a company where you are paid less than the men in HR, this may be a mixed blessing. You may get more money but jeeezzz look at the extra work you are going to have to do as a result of this effort.

And Stephanie... I think your title is probably incorrect. It will most likely be the WOMEN from NEPET Are Coming.

Feds Getting Heavy on I-9 Enforcement: So Dot Those I's and Cross Those T's

I have written several times on the new emphasis that the Feds, specifically the USDOL, the EEOC, the OFCCP, and ICE of Homeland Security, are putting on clamping down on employers. Well I picked up my copy of HRMagazine today and read the column "Federal Enforcers Wield Big Sticks". Writer Beth Mirza provides more ammunition to what I have been saying. She is talking in particular about the I-9 form. She quotes attorney Mary Pivec, of Keller and Heckman LLP as saying employers are "carrying extreme liability" in their I-9 forms because aggressive agents are "looking for people to prosecute."

According to Mirza and Pivec the volume of I-9 audits will be stepped up considerably in 2010 and , get this, THEY ARE NOT SEEKING CIVIL REMEDIES, THEY USING CRIMINAL ENFORCEMENT AGAINST EMPLOYERS! This means business owners can have their PERSONAL PROPERTY SEIZED and middle managers (aka HR) can be charged with THE FELONIES OF CONSPIRACY AND HARBORING.

That is not the only arena. Wage and Hour class action suits are on the rise, OSHA is getting very aggressive and seeking criminal remedies and a friend told me today that federal contractors are now being told by the OFCCP that the will be found guilty of discrimination if they source candidates through social media sites since the majority of social media users are white. I have not confirmed the last bit of information, but I will let you know if I do. But the other stuff is fact.

So your HOUSE had better be in order! Unless you think you look good in an orange or blue jumpsuit.

Being a US Government Contractor: Many Hoops Many Mistakes

On May 19th I am giving a presentation to a group of small company business owners and managers. I will be talking about the top 5 HR mistakes that small businesses make. (Which I posted on Feb. 5, 2010) In particular this group is interested in potentially being Federal Contractors. The people that asked me to speak deal with helping small businesses become contractors and they mentioned that often it is the HR stuff that fouls up a small company. Often times it is having the FLSA requirements messed up or they improperly classify employees as independent contractors. So I will be covering that.

However, I ran across an article in the April 2010 issue of HR Magazine, written by Alissa Horvitz and Joshua Roffman, called A High Bar in which they detail several other compliance areas that may cause problems and cost money for businesses which desire to be contractors. As most of you know Federal Contracts are controlled by the Office of Federal Contract Compliance Programs (OFCCP) (almost looks Soviet doesn't it?) and there are several requirements that include:

• Understanding prevailing wage issues and doing proper trainning
• Having your computer and accounting systems set up to track required OFCCP fields
• Making sure applicant data is being recorded
• Instituting the Drug-Free Workplace Act requirements
• Having a statement of non-discrimination or a full Affirmative Action Plan if needed. An AAP is necessary if you have 50 employees and a contract greater than $50,000.
• Tracking subcontracts awarded to enterprises owned by women, minorities, veterans and people with disabilities
• Making sure that all jobs filled externally are posted with the appropriate state and local unemployment offices
• Necessary use of the E-verify system for background checks
• Posting required notices about rights under the National Labor Relations Act (due out later in 2010.)

As the authors mention, there are alot of up front costs associated with having federal contracts. However, there are costs associated with blowing the compliance as well. Companies that are awarded contracts and then get audited and are found to be out of compliance may get fined, with remedies often exceeding $100,000 or loss of contract. Many compliance issues deal with proper applicant tracking or improper employment ratios as well as improper pay structures.

Because of the size of contracts, and the way the law is written, often the requirements for compliance are either not clearly articulated or are buried deep in contract language. Either way ignorance of the law is no excuse.

Contracts with the Federal government can be lucrative, however, there are many obligations that go with being a Federal contractor and they should not be pursued or entered into lightly.

EEOC Drops Internet Applicant Definition Clarification: "We Can't Agree So Forget It!"

After four years of attempting to clarify the definition of "Internet applicant" the EEOC said they have been unable to reach any agreement on a clear definition with three other agencies, so they are now saying the definition in the Uniform Guidelines on Employee Selection Procedures (the one they were trying to clarify) is good enough! Well thanks for all the hardwork! They have concluded that “the precise definition of the term ‘applicant’ depends upon the user’s recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion or other employment opportunities. This interest might be expressed by completing an application form, or might be expressed orally, depending upon the employer’s practice.” Well thanks a load!

The OFCCP has done a better job of definining Internet Applicant. It's definition is:

"An Internet Applicant is defined as an individual who satisfies the following four criteria:

• The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
• The contractor considers the individual for employment in a particular position;
• The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and,
• The individual at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position."

So the solution to this dilemma is to adopt a procedure similar to the OFCCP's definition, adapt it to what works for you and then be CONSISTENT with it. First, only accept resumes or applications when you have an opening. Secondly, have minimum qualification that must be met before someone can proceed. Thirdly, make any preliminarily "qualified" applicant express further interest by filling out an application. This will eliminate the resume broadcaster. If someone wants to seriously be considered for a position they will do so.

Hopefully this will cut down on the number of applicants you have to track and will make life a bit easier on the ol' HR department.