Did you know that the Department of Labor hosts live webchats? Patricia Shiu, Director of the OFCCP, hosted a webchat on Friday, January 7th. The goal of these webchats is to promote contractor feedback on the Department of Labor's Regulatory Agenda.
In my experience, these webchats provide a lot of good information, but are somewhat disjointed. Because questions are taken from the audience, there tends to be a lot of skipping around between topics, and a lot of different topics are discussed. The webchat on the 7th was a little different - there seemed to be some common threads running through the entire discussion. One of those threads was the proposed rescission of the Compensation Standards and Guidelines and the new wage data collection tool.
To highlight the importance of compensation issues in this webchat, here's a snippet from Director Shiu's opening remarks:
We are also seeking public comment on how we collect wage data. This data will be critical to realizing President Obama’s goal of ending, once and for all, the persisting gap in pay between men and women.
Participants wasted no time in getting into the compensation issue. Less than four minutes into the chat, Patricia Shaeffer, of EEOImpact, cut right to the chase:
Q:There are lots of rumors that the OFCCP will bring back the "DuBray" pay grade analysis...any truth to this?
A: Yes, this is a rumor. As we explained in the Federal Register notice regarding the rescission of the compensation standards, OFCCP will continue to follow Title VII principles in investigating and analyzing compensation discrimination. OFCCP will develop and issue compensation investigation procedures in the same manner as procedures for investigating other forms of discrimination, for example through the OFCCP directives and other staff guidance materials. OFCCP is well aware of the "DuBray" method and its limitations.
It wasn't clear to me - or other participants - what the OFCCP means by "Title VII principles":
Q: Citing the Title VII principles is very broad; can you provide 2-3 examples of how you plan to look at compensation, e.g. parameters, differentials?
Q: Could you please expand what you mean by Title VII principles for analyzing compensation?
A: Investigations of systemic compensation discrimination are complex and nuanced. OFCCP has traditionally focused on identifying compensation discrimination through the development of a variety of investigative and analytical tools. The use of a particular tool, or combination of tools, depends on the facts of a specific case and includes consulting with labor economists and other experts as appropriate...
Not really an answer to the question, right? I'm not a lawyer, but when I read Title VII of the Civil Rights Act, I don't see any analytical tools or methodologies outlined. So I still don't know what the OFCCP's response means. And based on follow-up questions, we might not really every know what the OFCCP means by "Title VII" principles:
Q: In the spirit of transparency, is the OFCCP ever going to communicate to contractors how it conducts its compensation analyses?
A: OFCCP is intending to hold stakeholder meetings to gather information regarding ways to analyze compensation. We welcome any input you would have on this.
Q: Will the OFCCP's compensation investigation procedures be made public?
A. OFCCP's interpretive standards and voluntary guidelines rescission was published in the Federal Register January 3, 2011. Comments regarding the rescission must be received by March 4, 2011. OFCCP will review the comments and establish procedures for investigating compensation discrimination, as well as other forms of discrimination through instructions for its compliance officers contained in the OFCCP Federal Contract Compliance Manual, Directives, and other staff guidance materials.
Again, not really an answer...
So we don't know what methodology or tool(s) the agency will be using, but we do know that contractors still have to perform compensation self-audits, based on a response to the question I asked:
Q: In the event that the Voluntary Guidelines for Self Evaluation of Compensation are rescinded, what kinds of replacement guidance will the OFCCP be providing for the contracting community?
A: If the voluntary guidelines are rescinded, contractors will still be obliged to conduct self-evaluations of compensation practices. OFCCP will continue to provide any needed compliance assistance through various means, including Webinars, Web site distribution of FAQs as appropriate rather than through the issuance of a Federal Register notice. If the compensation standards are rescinded, OFCCP will establish investigation procedures in the same manner of the investigations of other types of discrimination, e.g. compliance manual directives. OFCCP will use Title VII principles when conducting investigations of compensation discrimination.
Contractors will get their guidance on how to conduct compensation self-audits from webinars and a FAQ at the OFCCP's website. Doesn't seem like a while lot of guidance to me...
So where does this leave us? Before I tell you, let me share one more Q&A from the webchat:
Q: Once the proposed guidelines are adopted, what priority will OFCCP give compensation investigations compared to other investigations?
A: Beth, as you may know, OFCCP looks at discrimination in all aspects of employment, whether it be hiring, compensation, promotion, harassment, retaliation or termination. Under the Obama administration, we are taking a much stronger approach to enforcement of compensation discrimination, as part of our effort to, once and for all, end the wage gap between men and women.
Maybe I'm being too cynical, but to me, where all of this leaves us is (a) the OFCCP will choose amongst a variety of investigation and analysis methods that comply with "Title VII principles" on a case-by-case basis, (b) it doesn't seem like we'll ever really know for sure how the Agency is analyzing compensation until after they've already analyzed it and issued scheduling letters, (c) contractors still have to self-audit their compensation practices with guidance from the OFCCP in the form of a FAQ, and (d) all of this is being done to end a gender wage gap that's been exaggerated because of improper comparisons.
Stephanie R. Thomas is an economic and statistical consultant specializing in EEO issues and employment litigation risk management. For more than a decade, she's been working with businesses and government agencies providing expert EEO anlaysis. Stephanie has published several articles on examining compensation systems with respect to equity. She is the host of The Proactive Employer, and is the owner of Thomas Econometrics. Follow her on Twitter at ProactiveStats.
Comments