By Vin Gurrieri
Law360, New York
(April 10, 2019, 9:43 PM EDT) — Law firms need to “get their house in order”
when it comes to their diversity and inclusion practices, the top official at
the Office of Federal Contract Compliance Programs
told industry stakeholders Wednesday, both to serve as a model for other
businesses and to fulfill their responsibilities as federal contractors.
OFCCP Director Craig Leen’s comments came at a legal industry compliance event the agency held in Manhattan. There, he cautioned that law may be among the industry sectors that will soon face increased scrutiny by the agency of their equal employment opportunity practices — particularly when it comes to promotions — since women, minorities and disabled individuals are vastly underrepresented in top-level equity partner positions.
“Law firms need to get their house in order,” Leen told industry stakeholders. “You need to take a look at what’s happening because you are the example to the world of compliance with law. … It’s important that you never be in a position where it be viewed as you are being hypocritical or not following the legal advice that you give to others.”
The OFCCP is a department within the U.S. Department of Labor that enforces nondiscrimination and affirmative-action requirements for federal contractors and subcontractors, which can include law firms that perform work for government agencies.
During his remarks, Leen cited a recent study by the National Association for Law Placement that said women and women of color are vastly underrepresented at the equity partner level when compared with the percentage of women who graduate law school and those that make up firms’ associate ranks. He also cited a statistic that less than a half-percent of equity partners are individuals with disabilities.
“These numbers are glaring, they are concerning, they are troubling, they are problematic, and they are systemic,” Leen said. “They’re something that law firms need to take a look at, and it’s something it’s going to be a focus of OFCCP.”
While he mostly avoided discussing the root causes of firms’ long-standing problems with diversity and inclusion in high-level positions or possible solutions, Leen made a point to mention that inadequate policies regarding paid leave for new parents can be an obstacle to diversity at the top or, if a good policy is in place, a way to combat any lack of diversity that exists.
As best practices, Leen said that law firms could consider prorating billable hour requirements for any parent that takes leave and making sure that they aren’t penalized for taking leave. He also suggested that firms conduct self-assessments every year at whether men are taking leave when they have kids, figuring out ways to encourage them to do so and studying how both men and women fare upon their return to work.
Moreover, the OFCCP’s top official said the agency plans to issue guidance regarding how far the agency’s reach extends when it comes to policing problematic practices involving lawyers who are equity partners, an issue that Leen acknowledged has been up for debate. But the OFCCP director also said he believes the agency can currently look at issues surrounding promotions to equity partner positions.
“The promotion of associates or nonequity partners to partner is something I think we would have jurisdiction over because we have jurisdiction over the employees who are being promoted to partner or not promoted,” Leen said. “Someone who’s not promoted to partner is still an employee. So, they’ve been harmed would be the argument if they’ve been discriminated against, particularly if that affects their compensation or their opportunities at the firm.
“Generally, I do think we have a hook here, which is the promotion hook, and we are going to be pursuing that when we look at firms,” Leen added.
While not many firms were scheduled for audits this year based on the “neutral criteria” that the agency used to make its selections, Leen said the issue over promotions will be a focus of the agency as soon as the next fiscal year for for law firms and contractors in other sectors like finance and academia where women and minorities are statistically underrepresented in top positions.
Wednesday’s event was the second held by the OFCCP in two days, coming on the heels of an event Tuesday for financial industry stakeholders. The events were held with the dual-pronged objective of informing industry stakeholders about the agency’s initiatives and goals, but also to obtain feedback about areas where the agency can improve.
On the former front, Leen on Wednesday laid out a general set of principles that the agency will focus on under his watch: increasing transparency, creating certainty, improving efficiency and publicly recognizing the best performing contractors.
As to the first of those planks, Leen acknowledged that the agency “has been known in the past to not be very transparent,” and said he wants contractors to have a clear idea of both what it is doing and how it is doing it.
“Transparency is key to the success of this agency and making sure that it has a bigger impact across the United States,” Leen said.
As to improving the efficiency of the matters it handles, Leen said that the long periods of time that it takes to resolve some cases “is a huge threat and problem for the agency” in part because many companies often won’t move to fix a problematic compensation system until a case is resolved.
Leen noted that the agency has over 100 administrative matters pending that are more than four years old, a number he said “makes no sense” and that isn’t helpful for businesses, workers or the agency itself. The agency will be increasing the number of random audits it conducts in the future but streamlining them so they are completed far quicker and place a priority on resolving the oldest cases currently in the system, he said.
“My general view of the contractors in this country is that the vast majority of them don’t intend to discriminate,” Leen said, noting that bias is only found in about 2% of the agency’s audits. “Nevertheless, a good company, when we show them a disparity and there’s no explanation for that disparity, should want to fix it and they should work with us to do so.”
–Editing by Aaron Pelc.
Virginia Tech has posted a job opening for Director of Compliance and Conflict Resolution. Read more at https://listings.jobs.vt.edu/postings/96229
OFCCP’s FY2019 CSAL list was released Monday, 3/25/19.
You can view the full list here: https://www.dol.gov/ofccp/scheduling/index.html.
To view CSAL FAQs, click here: https://www.dol.gov/ofccp/regs/compliance/faqs/csalfaqs.htm.
- EEO-1 Survey Opens March 18th: https://www.eeoc.gov/employers/eeo1survey/index.cfm
- NILG Webinar March 21st, 2:00-3:30 PM EST: From Concept to Action: Learn How OFCCP is Putting the New Directives into Practice Register here: https://register.gotowebinar.com/register/448487891562969090
- NILG Webinar April 11th, 3:00-4:00 PM EST: OFCCP and ODEP: Agency Updates and Sec 503 Compliance & Focused Reviews Register here: REGISTRATION LINK
- OFCCP Announces NYC Town Hall Meetings April 9th and 10th for financial and legal industries Proskauer article Register here: https://www.dol.gov/ofccp/townhalls/index.html
- OFCCP Section 503 Focused Reviews Website is Live: https://www.dol.gov/ofccp/Section503-FocusedReviews/index.html
- Judge Lifts Stay on EEO-1 Pay Data Submission: Article
- OFCCP to Post CSAL List in March: OFCCP is on schedule to post its next Corporate Scheduling Announcement List (CSAL) in OFCCP’s FOIA Library in mid-to-late March 2019.
OFCCP Wants to Help
Ensuring federal contractors have the free tools and resources needed to comply with their equal opportunity obligations is critically important. In order to continue to enhance the scope and quality of OFCCP’s compliance assistance materials we have been holding town hall events to enhance our understanding of what is important to our stakeholders.
Most recently we held two successful town halls for the tech industry and gained valuable feedback and ideas from the participants. OFCCP is looking to build on the success of the town halls that were primarily focused on the tech industry with two more town halls in New York. The first New York town hall will be focused on the financial industry and related fields and the second New York town hall will be focused on the legal industry and related fields.
The town halls will be held in New York, New York. The financial industry town hall will be held on April 9, 2019 and the legal industry town hall will be held on April 10, 2019.
You can attend a town hall by registering through OFCCP’s website.
The meetings are open to the public but will be of particular interest to human resource managers, equal employment opportunity specialists, chief compliance officers, and other personnel in the legal and financial industries who are directly involved with ensuring their company’s compliance with OFCCP’s requirements. Workers, jobseekers, community groups and anyone interested in OFCCP and our work are also encouraged to attend. Please note only two tickets are available per organization on a first come, first served basis.
The NILG board has created a self-identification for disability survey to gather accurate information from employers on the contractor community’s challenges to share (in aggregate) with the OFCCP and ODEP.
Please use this link to complete the short Self-Id Survey. If at all possible, please complete the survey on or before March 6th.
The agenda for the 2019 National ILG Conference held in Milwaukee, WI from July 30-Aug 2 has been released. You can view the full program agenda here: https://ilgconference.com/2019/agenda/. Early bird registration ends April 5th. Hope to see you there!
The agenda, minutes, handouts, and presentations from the Feb 21, 2019 meeting have been posted on the Members Only Password-Protected page.