Expert Support During OFCCP, EEOC, and Other Federal and State Agencies Investigations

Welch Consulting labor economists have extensive experience helping firms understand and respond to investigations conducted by the federal government (such as the OFCCP) and state agencies (such as California’s Department of Fair Employment and Housing – DFEH).

Unfortunately, these agencies’ investigations commonly use models that do not accurately reflect a firm’s employment practices.  We excel at isolating and understanding the sources of the agency’s findings and at providing the agency with the appropriate way to study the firm’s decisions.

We also closely follow agency changes in analysis methodologies, such as changes to Directive 2018-05, which reflects a major overhaul to OFCCP compensation guidance, and ongoing changes expected in 2020 that can alter the OFCCP’s use of statistical evidence.

Our experts are actively engaged in ensuring that the OFCCP, EEOC, and State Agency investigations follow sound statistical and transparency principles.

OFCCP Audits

Every year, the OFCCP audits more than 3,000 government contractor establishments.  What differentiates the OFCCP from other agencies is that their audits take place even if there are no employee complaints regarding the contractor’s employment practices.

Our OFCCP labor consultants have successfully worked on hundreds of OFCCP audits across every major industry and in each of the OFCCP’s six regional offices. As a result, we understand how the OFCCP analyzes the contractor’s data during audits to identify “indicators” of compensation and employment selections (e.g., hiring, promotions, terminations).

We can help identify relevant data, perform statistical analyses, and supplement the data where necessary.  We can also help in preparing the data for production, generating tables and reporting results, including responding to questions and verifying calculations from the OFCCP.

Representative Engagements

The Assignment: Assist a Government Contractor with a Proactive Audit of its Affirmative Action Plan (AAP)

A government contractor in the oil and gas industry engaged our experts to proactively study their compensation and employment selections data prior to submitting their AAP to the OFCCP.

 

The Outcome: Our economists helped the contractor improve the collection and organization of their employment data and assisted in the design of Pay Analysis Groups (PAGs) to be submitted with their AAP.

The resulting statistical analyses provided a better reflection of the contractor’s decision process and incorporated the business-related factors the contractor considered when making compensation and employment selection (e.g., hiring) decisions.

Welch experts, through outside counsel, also advised the client in the formulation and progress evaluation of the contractor’s diversity goals. Since this initial assignment, Welch Consulting has provided assistance with the firm’s AAPs in each subsequent year.

The Assignment:  Assist with an OFCCP Audit Suggesting Some Race Groups Damaged by the Company’s Compensation Practices. Welch Consulting was retained by a nationally recognized research laboratory to assist in an OFCCP audit of the existing compensation structure for employees at all levels. We have worked on many discrimination cases and so are known for our ability to work through such scenarios.

 

The Outcome: Our economists studied the company’s pay practices and initially confirmed that there were differentials in pay among employees of different races, as OFCCP’s analyses alleged.

After further analysis, we discovered that the OFCCP’s pay indicators were caused by differences in an employee’s time-since-degree and degree discipline, which differed substantially across race groups.

The client provided educational background data that our experts organized and incorporated into the statistical models, which caused the observed pay differentials to be greatly diminished, or eliminated. The audit closed shortly after we explained our findings to the OFCCP.

EEOC Investigations


We have assisted with the response to numerous EEOC investigations. Our responsibilities have included identifying the compensation of similarly situated employees (to respond to a charge of pay discrimination by a single party), as well as data production and analysis in our capacity as testifying experts (in cases with claims of class-wide systemic discrimination).

Our involvement in EEOC investigations have ranged from claims of systemic race-based differences in hiring, claims of individual and systemic age-based termination practices, and gender-based claims of discrimination in pay and promotion to individuals and company-wide.

In our experience, early expert involvement is often essential to a thorough analysis and understanding of the data that EEOC incorporated in their analysis, and alternate information that can facilitate a rebuttal of the EEOC’s claims, after careful analysis.  A comprehensive and complete analysis of the data can also provide the foundation for a successful settlement.

Representative Engagements

The Assignment:  A client was charged by the EEOC with discriminatory hiring practices. We were provided with the report by EEOC’s statistical expert, which purported to show statistically significant patterns of under-hires of equally qualified African American applicants compared with Whites. We served as the expert witness for the company when the matter was litigated.

 

The Outcome: Welch Consulting’s economists assisted with the criticism of work by the opposing statistical expert. Through the introduction of education and skill measures from applications, we showed that hiring differences could be statistically explained by a more complete understanding of each employee’s skills, regardless of race.  Our analysis resulted in the opposing expert’s exclusion from the matter and a judgment in favor of our client.  Following the litigation, we assisted in a successful claim against the EEOC for fee reimbursement.

The Assignment:  A national company was charged by EEOC with discriminating in pay and promotion decisions seen to systematically favor men over women. The case proceeded to litigation, where Welch Consulting was retained to defend against the statistical results generated by an opposing EEOC expert.

 

The Outcome: Welch Consulting economists analyzed the opposing expert’s analyses, and recognized that it had excluded relevant information on skill and responsibility levels. Our economist supplemented the analyses with this employee-level information and showed that, once accounted for, the opposing expert’s results on differences in pay and promotion were reduced to statistical insignificance.

On the basis of our expert testimony and a more complete statistical model, the opposing statistical expert was excluded from testifying to his results, which later resulted in summary judgment for our client.

The Assignment: A corporation faced an EEOC claim of having a policy and practice of gender discrimination in termination, pay, and promotion decisions. Welch Consulting was retained to evaluate the statistical evidence cited by the EEOC prior to a Conciliation process.

 

The Outcome: At the Conciliation, Welch economists provided statistical evidence to the effect that EEOC’s analysis was incomplete and that, once rehabilitated with the addition of relevant statistical data, the strength of EEOCs case was substantially diminished. As a result, the charge was settled for a fraction of EEOC’s original damage demand.

State and Local Agency Investigations

We have assisted with the response to state and local agency claims of discrimination in hiring, pay, promotions, terminations and other claims. As with any proper statistical response to such claims, our economists focus on understanding how company policies and practices operate.

We then generate statistical models that incorporate not only standard economic data (such as years of experience, measures of job skills etc.) but also incorporate measures that may be relatively unique to the company at issue, such as specific promotional pathways, measures of special skills, etc. We can assist with data production and provide expert testimony in cases with claims of class-wide systemic discrimination.

Representative Engagements

The Assignment: Welch Consulting was retained by a national retailer to assist in responding to a DFEH investigation alleging race discrimination in hiring.

 

The Outcome: Our economists studied the relevant labor market for each establishment under investigation and documented large race differences in the pool of job candidates for pairs of stores relatively close to each other. This finding supported the need to study the hiring practices of each store separately, and with this focus, hiring differentials by race group were greatly diminished at most stores, leading to a settlement of claimed damages that was far below initial DFEH claims.

Contact Welch’s OFCCP Labor Economists Today

With our great breadth of experience investigating discrimination cases of this type, organizations throughout the United States know that Welch Consulting can deliver results efficiently and in a timely manner.

Contact us today to learn more about retaining our OFCCP labor economists.

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