The OFCCP Digest Volume 7, Issue 1

Be Ready for Increased Focus on Pay Equity in 2017 Topic: Compensation
Pay equity issues took center stage when the Lilly Ledbetter Act was signed into law by President Obama in 2009, the first such federal legislation to be enacted in an effort to close the wage gap between genders. This statute ushered in a new era for pay equity, and the effects...more
	Cheryl L. Behymer, Esq. Partner, Fisher Phillips LLP

Waiting for Change at OFCCP Topic: OFCCP
In January of 2017, Donald Trump will be president of the United States. This is not what the political pundits expected, and it is not what most service providers working in the affirmative action/equal opportunity area expected. Now that a Trump presidency is a reality, it is...more
	Bill Osterndorf President and Founder, HR Analytical Services

Tools for Your Toolbox – A Compensation Overview Made Simple Topic: Compensation
Yes, you saw that correctly. An analysis of your compensation while doing a self-audit, at least an overview in the manner typically done in a desk audit by the Office of Federal Contract Compliance Programs (OFCCP), can be relatively simple. That’s not because the agency...more
	Lisa Kaiser, Esq. Managing Partner, The Kaiser Law Group, PLLC

The New National Origin Discrimination Guidance Topic: EEO
Title VII of the Civil Rights Act of 1964 protects employees from discrimination and retaliation due to national origin. Title VII makes it unlawful for employers to treat workers unfairly because of their national origin or ethnic background, if an individual is from a certain country, or if he...more
	Judy Lindenberger President, The Lindenberger Group, LLC

Disability Etiquette: Tips for Interacting with Individuals with Disabilities Topic: Disability
According to the Americans with Disabilities Act, an Individual with a Disability (IWD) is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment or a person who...more
	Lauren Collinson Senior Communications Specialist, Berkshire Associates, Inc.

Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question. Questions and answers will occasionally be featured in The OFCCP Digest for the benefit of all readers.

Question: Company that Provides Validated Writing Tests

Do you know of any companies that offer validated writing tests to determine candidates for communications-related positions where they will do a lot of writing?

Answered by Bill Osterndorf from HR Analytical Services:

There will certainly be companies that offer writing tests. The more important question for you, however, is validation. Most companies offering writing tests will tell you they've done national validation studies, or that their studies have been proven effective across a wide base of industries. This is not an acceptable way to look at validation studies, at least from a regulatory perspective.

Any tests that are used for selection and/or decision-making purposes should have the following two characteristics:

1. They should have been validated for the particular workforce at issue
2. They should have been validated for the specific jobs at issue

Thus, if you're going to use a writing test to determine whether candidates for marketing positions are viable candidates, you will need to create and use a writing test that is validated for your company at whatever location the marketing candidates will be based that specifically evaluates writing skills used for marketing positions.

I have personally found very few situations where companies are using properly validated tests. Conversely, I have seen plenty of examples where a test bought "off-the-shelf" that has been "validated" for use throughout the United States is being used to make decisions. These tests too often have a disparate impact on some protected class.

If you strongly feel that you want to create a writing test that will evaluate candidates, I'd encourage you to work with a local college or university to specifically develop a test that is specific to your organization and to the positions where the test will be used.

I recognize this is neither the answer you were seeking, nor is it an answer that everyone will agree with. However, in the current regulatory environment, where tests are coming under increasing scrutiny by regulatory agencies, I would urge great caution in the creation and use of tests. This is especially the case with something like a writing test, where it will be much more difficult to develop a set of objective measures than it might be for something like a welding test.

EEOC Seeks Public Input on Proposed Enforcement Guidance on Harassment

The EEOC is asking for public input on a proposed enforcement guidance that addresses unlawful harassment. This guidance explains the legal standards and employer liability that apply to harassment claims under federal employment discrimination laws. It sets forth EEOC’s position on harassment law and provides helpful examples and practices. Harassment claims currently make up one-third of all charges received by the EEOC. The guidance is a companion piece to the Task Force Report on Workplace Harassment which identified ways to prevent harassment. The deadline for submission of comments is February 9, 2017.

EEOC Issues Publication on Rights of Individuals with Mental Health Conditions

The EEOC released a resource document explaining workplace rights for individuals with mental health conditions under the ADA. The publication details how job applicants and employees with mental health conditions are protected from discrimination and harassment, and have a right to reasonable accommodations. It also contains information on the types of available accommodation, restrictions on employer access to medical information, confidentiality, and the role of EEOC enforcement. This is part of a series which includes the rights of individuals with HIV and individuals who are pregnant.

Federal Court Stops Implementation of New FLSA Overtime Rules

A federal district court in Texas issued a preliminary injunction to stop the implementation of the new FLSA Overtime Rule set forth by the DOL, meaning employers do not have to comply with the new overtime rules on December 1st. This decision delays the effective date of the regulations until the Court makes a final determination on the overtime rules. The DOL strongly disagrees with the decision by the Court and is currently considering their legal options.

EEOC Issues Enforcement Guidance on National Origin Discrimination

The EEOC updated its enforcement guidance on national origin discrimination in the compliance manual section for the first time since 2002. The proposed guidance addresses issues such as job segregation and intersectional discrimination, while providing direction to employers on recruitment, language requirements, hiring, and promotion. The Commission also issued a question-and-answer publication and a small business fact sheet to highlight major points in the guidance document.

Read more DOL Highlights throughout the month for timely updates.

Contact Us
The OFCCP Digest is a complimentary resource featuring affirmative action, equal employment opportunity, and government compliance topics. Previous editions are available for easy reference on The OFCCP Digest Archives page. To subscribe or to provide feedback, email OFCCPDigest@LocalJobNetwork.com.

The opinions expressed in this newsletter are the opinions of the individual author(s) and do not necessarily reflect the opinions of the Local JobNetwork™. The information appearing in this newsletter is meant to provide the reader with a general understanding of topics relating to OFCCP compliance requirements and is not legal advice. If you are seeking legal advice to address OFCCP compliance issues or requirements, you should consult an attorney. The Local JobNetwork™ expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this newsletter.