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November 11, 2019

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OFCCP Issues Technical Assistance Guide for Educational Institutions and Trains its Sights on the Tenure Selection Process

Maintaining its recent focus on compliance issues particular to educational institutions, OFCCP published a technical assistance guide for educational institutions on October 11, 2019.  The guide follows a flurry of OFCCP guidance for institutions of higher learning, including an opinion letter regarding the agency’s jurisdiction over such employers, a directive that student employees need not be considered in fulfilling AAP obligations, and an FAQ providing guidance on the definition of AAP “establishments” in campus settings.  OFCCP is also holding a town hall on issues particular to academic institutions on October 23, 2019 in Washington, D.C.  Contractors can review Polsinelli’s coverage of OFCCP’s prior guidance by following the links in the previous sentence.

The guide recognizes that educational institutions present “unique challenges” for OFCCP compliance and enforcement purposes because they have “numerous methods of governance, various organizational structures, and multiple workforces,” as well as “elements that can be difficult to quantify” in their hiring, promotion, and compensation structures.  These subjective criteria can include “the prestige of publications, research, discipline, and contributions to the institution.”  OFCCP also recognizes in the guide that it must apply different analyses to three major areas of an educational institution’s workforce: tenured instructional staff, non-tenured instructional staff, and non-instructional staff.

Although it is a good omen for educational institution contractors that OFCCP recognizes that their employment decisions involve idiosyncratic factors and differ from those of a commercial employer, that does not mean OFCCP is abdicating its oversight over educational institutions.  The guide clearly telegraphs OFCCP’s intention to scrutinize the tenure selection process due to the historical and continuing disparities in tenure selection rates for female and minority instructors.  Though OFCCP recognizes that many of the factors going into the tenure analysis are subjective and difficult to quantify, the guide states OFCCP’s intention to evaluate whether a contractor applies these factors consistently and in a neutral, non-discriminatory manner.  It is therefore essential for educational institutions to clearly outline the factors relevant to tenure selection and document how those factors are applied in each selection or non-selection decision.  OFCCP will also look at structural issues in the tenure selection process such as “the process by which the contractor composes the departmental committees responsible for granting tenure” as well as historical tenure data.

A second issue of interest to educational institution contractors is the guide’s discussion of disparities in compensation by academic discipline.  OFCCP will only control for differences in discipline areas that have a “substantial impact on determining instructional staff salaries.”  Much like a private sector contractor’s use of “market rate” data in setting compensation, it is essential for educational institutions to be able to explain how differences in compensation by discipline factor into compensation and to have defensible data supporting discipline-based compensation disparities.  The need for careful analysis is heightened because discipline-based disparities can potentially correlate to gender or race based disparities to the extent that members of different genders or races are disproportionately represented in disciplines that command different levels of compensation. 

Educational institutions should review the new technical assistance guide as it provides useful guidance and a window into OFCCP’s priorities in this field.  

© Polsinelli PC, Polsinelli LLP in California

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About this Author

Conne Bertram Government Contract Lawyer Polsinelli Law Firm
Shareholder

Connie focuses her practice on whistleblower, trade secrets, government contractors and employee mobility counseling and litigation. She frequently conducts confidential internal investigations involving executive-level employees, including alleged fraud, theft or misuse of company data, trade secrets, sexual harassment and code of conduct violations. She routinely counsels, investigates and litigates restrictive covenant and trade secrets disputes between employers and former employees.

Connie has defended complex whistleblower, trade secrets and restrictive...

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Jack Blum Polsinelli Employment Attorney
Associate

Jack Blum is an associate in the firm’s Employment Disputes, Litigation, and Arbitration practice, where he represents employers in connection with a wide range of employment law issues. Jack has extensive experience in defending employers against claims by their employees in federal and state courts, as well as before government agencies like the EEOC, Department of Labor, and state human rights commissions. Jack aggressively defends his client’s personnel practices and decisions while not losing sight of their underlying business goals and objectives. Jack represents clients in all aspects of complex employment litigation and has advised and defended employer clients regarding a wide variety of employee claims, including:

• Employment discrimination, harassment, and retaliation
• Wage and hour
• Employment contract disputes
• Independent contractor/employee misclassification audits 
• Tort claims arising out of the employment relationship

Jack also has extensive experience representing parties in litigation arising from employee mobility, including claims involving non-competition, non-solicitation, and confidentiality agreements as well as the misappropriation of trade secrets. Significantly, Jack has experience in both prosecuting and defending these claims and is, therefore, able to offer clients a well-rounded assessment of their options and courses of action. Jack also has experience redressing employee data breaches under the Computer Fraud and Abuse Act.

Jack also has a background in employment counseling, where he has worked closely with in-house counsel, human resources personnel, and business executives to craft personnel policies that meet the client’s business requirements while complying with applicable laws. Jack has particular experience in assisting clients with issues relating to employee/independent contractor classifications, and regularly advises clients regarding the defensibility of classifications, drafts independent contractor agreements to provide the strongest possible arguments in support of the classification, and defends misclassification claims asserted by employees and government agencies. Jack also walks clients through sensitive personnel actions to reduce the potential for litigation or at least best position the client in the event that litigation is inevitable. Jack draws heavily upon this counseling experience in representing clients in litigation.

During law school, Jack served as a legal intern in the U.S. Securities and Exchange Commission’s Office of the Inspector General where he contributed to several high-profile internal investigations, and also interned with the Maryland Attorney General’s Office.

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