By Nancy J. Pysher, SPHR
Consultant, The HR Group, Inc.

The Obama Administration has appointed Hilda Solis as the new head of the Department of Labor. She has proposed that the Employment Standards Administration be eliminated and that the OFCCP report directly to the Secretary of Labor. This reorganization is scheduled for November of 2009. Ms. Solis is an ardent supporter of Employee Free Choice Act and will definitely be bring a new twist to the administration.

Patricia Shlu who recently received the "Woman-Warrior Award" of the Pacific Asian American Woman Bay Area Coalition will be directing the OFCCP. She is affectionately known as one of the most relentless Asian-American litigators and has 25 years of experience litigating employment discrimination.

These two ladies will administer a 33% increased OFCCP budget of $109.5 million with a 36% increase in enforcement officials (213 additional). This will likely increase audits from 5,000 to 6,800 annually. The rope gets tighter.

The primary focus will be in the hiring area since 92% of audits with findings of discrimination involve hiring bias. The word is that they will be focusing on hospitals and HMO'S besides construction contractors and subcontractors. Emphasis will also be on tracking proper documentation of veterans, individuals with disabilities and state unemployment service outreach documentation.

Who will be targeted?...

Since 2006 the standard three-prong trigger (tipping point) for future inquiry has been used. But we are seeing a shift to variation in compensation trigger. This shift modifies the "tip" formula and renders audits less predictable. We will also possibly see the resurrection of the EEO Survey that chokes us with paperwork like a hangman's noose.

What we expect going forward will be more aggressive activity and greater attention to your recordkeeping. Different rules apply to companies receiving ARRA (American Recovery and Reinvestment Act) money. It gets really complicated identifying who is and who isn't and who is the contractor and who is the subcontractor and what requirements come into play. What we do know for sure is that E-Verify is a must as of September 8, 2009.

Another interesting change is that the "Beck Notice" has been rescinded. (This is the notice you had to have posted informing employees of their right not to join a union.) Executive Order 13496: Employee Notice spells out the requirement to post information for employees of their right to join a union. This is quite a switch in emphasis that will surely tighten the employer rope even more as we see the year play out.

Whatever your business, if you think you should be working under an Affirmative Action Plan, please GET HELP. Many things are changing and twisting what we thought were the right answers. There are new players with big bucks and lots of help to identify your lack of required outreach and or recordkeeping. Get qualified assistance to help you through this transition and keep you breathing as the ropes twist and turn to a new direction.