The Department of Labor (DOL)/OFFCP Audit: Responding and Leveraging for Organizational Change

1. The Department of Labor (DOL)/OFFCP Audit: Responding and Leveraging for Organizational Change The University of Texas at Austin

2. Let’s Start at the Beginning • Executive Order 11246, signed by President Lyndon B. Johnson on September 24, 1965 required Equal Employment Opportunity. Amended in 1967. • The term Equal Opportunity Employment originated here. • Through this executive order, President Lyndon B. Johnson gave the responsibility of enforcing parts of the non-discrimination in contracts to the Department of Labor. The Office of Federal Contract Compliance Programs (OFCCP) was created. • Higher Education came to OFCCP in 1979 from HEW’s Office of Civil Rights.

3. Background – Federal Contractor • OFCCP administers and enforces Executive Order 11246, as amended, which prohibits federal contractors and federally-assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. • The Executive Order also requires Government contractors to take affirmative action to insure that equal opportunity is provided in all aspects of their employment.

4. AFFIRMATIVE ACTION REQUIREMENTS • Each Government contractor with 50 or more employees and $50,000 or more in government contracts is required to develop a written affirmative action program (AAP) for each of its establishments. • A written affirmative action program helps the contractor identify and analyze potential problems in the participation and utilization of women and minorities in the contractor's workforce. • If there are problems, the contractor will specify in its AAP the specific procedures it will follow and the good faith efforts it will make to provide equal employment opportunity. • Expanded efforts in outreach, recruitment, training and other areas are some of the affirmative steps contractors can take to help members of the protected groups compete for jobs on equal footing with other applicants and employees.

5. ENFORCEMENT AND COMPLIANCE • Compliance Reviews • OFCCP conducts compliance reviews to investigate the employment practices of Government contractors. During a compliance review, a compliance officer examines the contractor's affirmative action program; checks personnel, payroll, and other employment records; interviews employees and company officials; and investigates virtually all aspects of employment in the company. • The investigator also checks to see whether the contractor is making special efforts to achieve equal opportunity through affirmative action. If problems are discovered, OFCCP will recommend corrective action and suggest ways to achieve equal employment opportunity.

6. Higher Education and Audits • OFCCP doesn’t like higher ed– we are weird • OFCCP identifies industries to audit • OFCCP uses EEO-1 Reports to audit • Won’t tell you how you were selected • Will give you 30 days to respond to their letter, which includes 11 items to provide • Items may be found on the internet or contact me directly

7. Things Requested • Job Groups • Utilization Analysis • Placement Goals, where appropriate • Preceding Year’s Goals • Data: applicants to hires; promotions; terminations • Annualized Compensation: salary, race, gender, job title

8. UT Austin’s Recent Experience • Notice received fall 2006; received extension • Data submitted November 2006 • April 2009, letter indicating severe compensation concerns for faculty and staff • New data set requested and submitted May 2009 – liability for two years • BECAME PROACTIVE • April 2010 heard again on 5/09 data set: • Now only three titles of concern

9. OFCCP Analysis • Three-tiered investigation approach • Tier 1: look for 2% difference in average salary between whites and people of color, between men and women across the organization • Tier 2: cluster employees across the institution into groups of at least 30 with at least 5 from each comparison group based on job title and pay from high to low pay • For each cluster conduct a regression analysis to assess statistically significant differences in pay between comparison groups • Tier 3: create Similarly Situated Employee Groups (SSEG) and construct regression analyses for each group to determine if there are statistically significant differences in pay between comparison groups • You get to define your SSEGs • UT Austin faculty were tenured, tenure track, off track, dept., college • UT Austin staff were by job title, dept., college/unit

10. Proactive Approach • We started to anticipate what OFCCP would find, based on 2009 data set submission. • John Moore’s group began to run stats looking for disparities by SSEGs • This is what you should be doing on a regular basis but certainly do it when your data is requested. Don’t wait for them to tell you there are problems – ANTICIPATE!!

11. Down to Specifics • In April 2010, now at the area office, apology for time delay • Identified three titles (i.e., SSEGs): • Associate Professors in college A (n=37) • Minorities (10) paid more than Whites (27) • Postdocs in college B (n=173) • Minorities (93) paid less than Whites (80) • Administrative Assistants in college B (n=33) • Men (10) paid more than women (23)

12. Administrative Assistants • Using multiple regression analysis, salaries of admin assistants were examined for differences between males and females.  Independent variables included gender, full time or part time status, and months of service.  Gender was insignificant (t = -1.60, p = .1229) while full time/ part time status did affect salary. 

13. Administrative Assistants cont. • Remember asked for annualized salaries. But we found that some of the administrative assistants were actually paid hourly/part time. • We found that some were located outside of Austin, where the salaries are lower. • We found consistency in salaries at the departmental level. Some departments are richer than others.

14. Postdoctoral Fellows • Using multiple regression analysis, salaries of postdocs were examined for differences between minorities and non-minorities. Independent variables included minority/non-minority and academic discipline, reflected in the department affiliation. Minority/non-minority was marginally significant (t = 1.93, p = .056). As noted above, postdoc positions are highly individualized, and the individual characteristics and requirements of each position contribute to the actual salaries. However, that individuality also makes it impossible to conduct only statistical analyses. Accordingly, differences in salary are due not only to the discipline one works in but also to the unique differences in the individual positions and matching those to a relatively small pool of qualified individuals.

15. Postdocs continued • Compensation rates were determined by project funding. Project funding considers many factors: experience of the Postdoctoral Fellow, academic credentials, skill set and contribution to the project, project budget, grant compensation guidelines, salaries of others on the project, etc. Race is never a factor in the compensation of a Postdoctoral Fellow.

16. Faculty Example • Nonminority Associate Professor is paid, on average, $51,500 with 37 years in current rank and 41 years with the University, while a Hispanic Associate Professor with only three years in current rank and nine with the University is paid $81,011. • How would you explain this? • What would you do? • What variables do you have quantified to use statistically?

17. Faculty continued • Met with department chairs for explanation of salaries. • Newly hired often command higher salaries – more market driven • Previous example proved to be someone who retired some years prior and taught a class or two as requested • Some no longer employed • Some were acknowledged to be nonproductive scholars who did not seek promotion

18. Statistics Go Only So Far • Once April 2010 identified three titles, John’s group did their work using regression models and quantifiable variables to explain the statistical differences. • But stats only go so far, so I had to individually look at those 243 individuals OFCCP was interested in. Think Tier 4 analysis.

19. It Takes a Village • UT Austin had to utilize the services of many departments to respond to this audit. • HRS and IMA created data for their people. HRS handled stats for staff and faculty. Helps to have some statistical expertise, internal or external, because compensation equity analysis is statistical. • We anticipated problems but in the end, it took an individualized analysis of each of the 243 individuals to explain their compensation.

20. Me • I knew the institution did not determine someone’s salary based on the way they look. • Ultimately, it took someone who had survived audits before and who had a working relationship with OFCCP to make this work. • You have to explain tenure and merit increases for faculty. You have to explain how staff salaries are set. • You have to be respectful but tenacious in defending your institution.

21. UT in a Fishbowl • Keep legal informed but don’t let them take over • Keep public affairs informed but at a distance • Keep your boss informed • Get advice from others who have gone through it • Identify needed expertise to argue your case • Use the experience to advocate for resources to be prepared for the next audit

22. Questions??

23. Leveraging Compliance for Improved Organizational Structure UT Austin Director Series restructuring project

24. A & P Project Overview • The purpose of Administrative and Professional (A&P) job restructuring project is to align those jobs designated as A & P with established criteria and restructure others in order to achieve greater definition in work content, compensation and compliance with policy. • The project was initiated by the Human Resources Consortium with a subcommittee that provides research, data gathering, analysis and formulates recommendations. THEHRA Presentation Draft

25. A & P Project Goals THEHRA Presentation Draft

26. A & P Project: Phase I—Director Titles • As shown in the graphic on the next page, the Director series titles no longer reflect a coherent organizational title structure as indicated by pay. • Therefore as a first step, the project focused on the Director title (0379 and 0382) plus the many related titles including Executive Director, Assistant /Associate Director, “Director of xxxx” and others. THEHRA Presentation Draft

27. THEHRA Presentation Draft

28. Director Titles Current Picture • Additionally, the previous slide shows that the distribution of pay for Assistant and Associate Directors does not relate to the Director employee pay distribution in a way that is meaningful. THEHRA Presentation Draft

29. Director Titles Current Picture • The use of Director, Assistant and Associate Director titles across campus evolved in scope, function and compensation so that there is not a valid and viable hierarchy that is represented using the existing title structure. • Inequities are created where jobs with lower attributes have higher titles and vice versa. • Implications for compliance (fair pay and “glass ceiling” analysis). • Managing the workforce (relating contribution and title across campus jobs). THEHRA Presentation Draft

30. Director Titles: Recommendation • Establishing structural attributes • Restructure existing Assistant Director, Associate Director, Director and Executive Director titles into a 5-tier Director structure with appropriate relative attributes in: • Scope—span of control • Organizational (reports to) • Administrative Officer designation • Risk Management • At Will status • Competency • Compensation THEHRA Presentation Draft

31. Proposed Director Structure • Proposed is a 5-tier Director title structure to provide • A meaningful hierarchy of these jobs based on key attributes in scope, function, competency requirements and compensation. • Equity based on relative contribution and worth of the titles across campus. • Improve our ability to manage the workforce and better understand work content. THEHRA Presentation Draft

32. New Director Series THEHRA Presentation Draft

33. Presenters • Linda Millstone Associate Vice President for Institutional Equity LindaM@austin.utexas.edu • John Moore Director, Workforce Planning john.moore@austin.utexas.edu • Rich Burns Project Consultant rich.burns@austin.utexas.edu