Guest Contributor: Stephanie R. Thomas, Ph.D.

As 2011 draws to a close, we naturally start to think about what the coming year has in store. We wonder about the new opportunities – and challenges – 2012 will bring. In past years, I’ve predicted increases in employment-related litigation. This year, the watchword is “Regulation”.

Reducing Barriers to Employment

In light of the unemployment situation in the US during the last three years, the government is eager to get as many people back to work as possible. The EEOC, in particular, has been spending a lot of time looking at barriers to employment for various groups of people. The Commission held hearings to explore the barriers faced by veterans with disabilities and by individuals with mental disabilities. They also explored the barriers to employment created by using unemployment status and arrest and conviction records as candidate screening tools. Furthermore, they examined the prevalence of intentional employment discrimination based on gender, race, national origin or other prohibited basis. If the EEOC believes that employers are engaging in intentional or unintentional discrimination against segments of the unemployed population, then it’s likely that we will see some proposed regulations to reduce or remove these barriers at some point next year.

Proposed Mandatory Hiring Regulations

But the EEOC isn’t the only agency focusing on employment. On December 9, the Office of Federal Contract Compliance Programs (OFCCP) published a proposed rule that would require contractors to set a hiring goal of having individuals with disabilities comprise seven percent of their workforces. The proposed regulatory changes detail specific actions employers must take with respect to recruiting and training individuals with disabilities, accommodations record-keeping and data collection regarding the number and percentage of disabled candidates and hires. According to Secretary of Labor Hilda Solis, “this proposed rule represents one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act.” The OFCCP is accepting comments to the proposed rule through February 7, 2012. I’m expecting that we’ll see some movement on this proposed rule by early summer.

More Documentation Regulations

The OFCCP has also proposed some changes to its scheduling letter that would require employers to produce detailed employee-level compensation data, among other changes. This data would have to be produced for all full time, part time, contract, per diem, day laborers and temporary workers. Under the proposed changes, compensation is defined as the base salary, wage rate and hours worked. Additional compensation or adjustments such as bonuses, incentives, commissions, merit increases, geographic differentials and overtime would be produced as well. The OFCCP is encouraging employers to submit information regarding any other factors used to determine pay, such as educational attainment, prior experience, location, department, function, etc. The proposed changes would also require employers to submit organizational policies to reasonably explain compensation practices. With this new detailed data set, OFCCP is planning on reviewing each employee’s compensation at the individual employee level. The general consensus is that the proposed changes to the scheduling letter will be adopted during the first quarter of 2012.

In part 2 of this series, we’ll view additional regulations and other 2012 labor law updates that are looking to become important employment factors in the coming year.

Guest Contributor:

Stephanie R. Thomas, Ph.D., is the CEO of Thomas Econometrics. She specializes in the quantitative analysis of discrimination. Dr. Thomas has authored numerous papers published in professional journals and regularly speaks to legal and industry groups on litigation avoidance, the use of statistics in litigation, equal employment opportunity and affirmative action compliance issues, and the statistical analysis of employment decisions.