In the third of our webinars on The Ruby Files: Managing the Challenging Employee, we continue to follow Ruby as her changing circumstances present her employers with a variety of legal complications. View previous installments here. Ruby now works at a bank, which happens to be subject to the Office of Federal Contract Compliance Programs (OFCCP). In her application materials she didn’t mention she was previously fired, and when the bank learns of the misrepresentation it wants to take action. However, the bank has a history of unevenly applying such a policy, and as a result it may be risky to fire Ruby. While the company mulls next steps, Ruby flirts with a supervisor in another department and then claims sexual harassment; after a company investigation Ruby is kept on staff but placed in a separate department from the supervisor. Just in time for her 40th birthday, Ruby fails an aptitude test and promptly claims the test has a disparate impact on individuals over 40. She quits the job at the bank, updates her resume, and prepares to take another company by storm in our next installment.

1. The Ruby Files: A Whisper, A Wink and a 40 Year-Old
Aptitude Flunky
Eric E. Packel, Erin Schilling, Scot Seabaugh, Scott Gilbert

2. Ruby Recap
 1st installment: We met Ruby. 39 years old.
Back into workforce. Had some
misclassification issues and was involved in
DOL investigation.
 2nd installment: Ruby developed Carpal
Tunnel, migraines. Received warnings.
Terminated. Arbitration.

3. Ruby changes career paths
 Decides to utilize her accounting degree.
 Applies at Community Bank to work in
Credit Administration Department as
Underwriter.

4. Community Bank Application for Employment Form
Community Bank considers all applicants for positions, without regard to race, color, religion, gender, national origin, citizenship, age,
disability, marital status, veteran status, or any other similarly protected status. We also comply with all applicable laws governing
employment practices and do not discriminate on the basis of unlawful criteria.
Federal and state law obligates us to provide reasonable accommodations to the known disabilities of applicants, unless to do so would
pose an undue hardship. Please let us know if you need an accommodation to complete the application or interview process, or to
perform any essential elements of the position you are applying for.
Position Applying for:
Application Date:
Last Name First Name M.I.
Street Address City State Zip
E-mail Home Phone Cell Phone Social Security Number
Date available to work: Expected Salary:
Underwriting
March 4, 2016
Breaker Ruby R.
15 Meadow Kansas City MO
rubybreaker@yahoo.com
As much as possible
Yes No
Have you ever been fired or asked to resign from a job?
Have you ever been employed with us before?
If yes, please provide dates of employment: From To
Have you applied with us before?
Are you 18 years of age or older?
Do you have any relatives working for Community Bank?
Are you authorized for employment without restrictions?
Proof of citizenship or immigration status will be required upon employment.
Have you been convicted of a felony within the last seven years?
Are you a veteran of the Military Service?
X
X
X
X
X
X
X
X

5. List below related skills and qualifications acquired from employment or other experiences.
List below any honors, awards or certifications you have received while pursuing your education or during your employment.
Education
School Name City & State Did you graduate?
Yes No
High School
College
If attended, list course of study and degree received.
Graduate
Registered Nurse – former Unit Supervisor where I planned all monthly plans and ran entire department.
R.N.; numerous monthly awards.
Memorial
State University
Minor accounting
RN
X
Employment History
List three employers or assignments, chronologically (most recent first), and with no omissions, including military experience.
Employer Name Address City, State & Zip
General Hospital KCMO
Employer Phone: Your Job Title:
Supervisor of Dept.
Dates Employed:
2015-2016
Hourly Rate/Salary: Supervisor Name: Reason for Leaving:
Lack of challenge
Work Performed
May we contact? Yes No
Ran entire department

6. Ruby’s Bank Subject to OFCCP
 Executive Order (EO) 11246: prohibits discrimination and
requires affirmative action to ensure equal employment
opportunity without regard to race, color, sex, gender
identity, sexual orientation, religion and/or national origin.
 Vietnam Era Veterans’ Readjustment Assistance Act
(VEVRAA): requires government contractors to engage in
affirmative action to employ and advance in employment
qualified veterans.
 Section 503 of the Rehabilitation Act (Section 503): requires
affirmative action to employ and advance in employment
qualified individuals with disabilities.
6

7. Background/Credit Checks
 Bank concerns pre-employment – criminal
convictions involving dishonesty/breach of
trust/money laundering:
– Nature of crimes
– Nature of job
– Age of crime
– Arrest(s)

8. FCRA Obligations
 If employer uses third party, must comply
with FCRA.
 FCRA basics:
– Separate Disclosure Form
– Authorization by Applicant
– Pre-Adverse Action/Denial of employment

9. BSA/PATRIOT ACT
 Anti-money laundering programs
 Bank required to obtain/maintain:
– Name, address, d-o-b, ID number.
– Records of information in verification process.
– Suspected terrorist information.
– SAR – “Suspicious Activity Report”.

10. OFCCP Coverage
 Doing business with the federal government
– Directly (prime contractor), or
– Indirectly through a prime contractor (subcontractor)
 Levels of Requirements
– Basic coverage for women, minorities (Contract of $10,000 or
more)
– Basic coverage for individuals with disabilities (Contract of $15,000
or more)
– AAP Women and Minorities and Individuals with Disabilities
(Contract of $50,000 or more and 50 Employees)
– Basic coverage Veterans (Contract of $150,000 or more)
– AAP Veterans (Contract of $150,000 or more and 50 Employees)

11. What is a subcontract?
 “Subcontract” is any agreement between
the Prime Federal Contractor with a third
party
1) to provide goods or services that are, in whole
or in part, NECESSARY TO THE PERFORMANCE
of the Prime Federal Contractor’s government
contract, OR
2) Under which any portion of the contractor's
obligation under any one or more contracts is
PERFORMED, UNDERTAKEN OR ASSUMED.
11

12. Is the Bank Covered?
 Possible federal contracts:
Supplies
Services
 Financial Institutions
Federal fund depository
Paying agent for U.S. Savings Bonds
FDIC or NCUA insurance

13. Big Picture Affirmative Action
Requirements for Federal Contractors
 Implement Affirmative Action Program
 EEO Policy/Affirmative Action Policy
 Request for self-identification
 List openings with state or local employment agency
 Training
 Notice to subcontractors and vendors of Federal Contractor
status
 Tag line in all employment advertisements
 VETS-4212 Report
 EEO-1 Reports
13

14. EEOC/OFCCP Compensation
Collection
 EEOC proposed pay data collection
February 1, 2016
 Comment period ended on April 1, 2016
 Employers with 100 or more employees will
have to submit W-2 pay and hours
information
 Possible implementation 2017

15. Back to Ruby
 Ruby becomes friendly with supervisor in
another area.
 Ruby “friends” him on Facebook; he accepts.

16. Emails between Ruby and Another
Supervisor
From: Ruby Breaker
To: Tom DeMier
Subject: Blond moment
Hey, can you email me those forms again? I’m having a blonde moment.
From: Tom Demier
To: Ruby Breaker
Subject: Blond moment
Lol. I am attaching them again.
From: Ruby Breaker
To: Tom DeMier
Subject: Blond moment
Thanks. I’m gonna have to leave early today…I have to go sweet talk my way out of a parking ticket. Probably an up top pony
tail day. Or maybe side pony tail?
From: Tom Demier
To: Ruby Breaker
Subject: Blond moment
Huh?

17. From: Ruby Breaker
To: Tom DeMier
Subject: Blond moment
Oh come on! That’s my trick when I play the sweet blond. Put hair in up top or side pony tail!
From: Tom Demier
To: Ruby Breaker
Subject: Blond moment
LOL. Cute l’il blond huh? “Please give me a break sir”??
From: Ruby Breaker
To: Tom Demier
Subject: Blond moment
Yep! 
From: Tom Demier
To: Ruby Breaker
Subject: Blond moment
I like it!

18. Birthday Party Conversation
Tom: Enjoying the party?
Ruby: Yeah it’s nice.
Tom: How did the side pony tail work out?
Ruby: Like a charm!
Tom: I shouldn’t say this, but I’d love to see that.
Ruby: Oh yeah?
Tom: Sounds hot.
Ruby: It works! Innocent little ole me.
Tom: Innocent huh?

19. Ruby: Well…
Tom: Aha! So, are you accepting birthday hugs?
Ruby: Of course!
Tom: You give good hugs.
Ruby: That’s not all!
Tom: We better get back to the party.

20. Written Warning

21. Phone conversation between Ruby
and Rachel
Rachel: Hey Girl.
Ruby: Hey!
Rachel: When are you going to let me buy you that birthday drink?
Ruby: I don’t know – maybe this weekend.
Rachel: This weekend?! What’s up?
Ruby: Oh Rachel. I got written up.
Rachel: Another reason to have a drink. And why don’t you bring that fine man you have been flirting with.
Ruby: Ehhhh
Rachel: What’s your deal?
Ruby: Happy birthday to me! I told you I got written up! And I don’t know about him.
Rachel: Hmmmmm. You that worried about this write up?
Ruby: Yeah!
Rachel: Hmmmm

22. Ruby: What?
Rachel: I know what I’d do.
Ruby: What?
Rachel: You like this guy or not?
Ruby: Well, he’s corporate. And I got written up. I don’t know if I trust him.
Rachel: Hmmmm
Ruby: What?
Rachel: Girl. You want to keep your job? Hasn’t he emailed you about being blond?
Ruby: Yeah, and cornered me at my birthday party begging for a hug. Then I had to scram out of the room to get
away.
Rachel: Tell HR. Come on girl. I’m just looking out for you.
Ruby: Will something happen to him?
Rachel: Since when did you care about that? You gotta look out for yourself.
Ruby: Hmmmm

23. Effective Investigations
5 steps to conducting a fair, objective and
thorough investigation:

24. 1. Investigation Planning
OVERALL PLANNING
 Outline issues raised by allegations to determine investigation scope
GATHER DOCUMENTATION
 From complainant: texts, e-mails, calendars, etc.
 Other: Documents that may corroborate or contradict witness
versions of events: other emails and texts, security swipe reports,
telephone records, video, etc.
INTERVIEW PLANNING
 Identify witnesses & what they are expected to know.
 Plan order of interviews; typically start with the complainant.
 Have a good reason to interview each person to help maintain
confidentiality.

25. 2. Interviewing Witnesses
 Explain the purpose of the interview; nature of allegations under investigation.
 Identify the role and goal of the investigator: to obtain a complete and
accurate understanding of what has happened.
 Take thorough notes .
 Remind the witness about the prohibition on retaliation and the duty to
speak up.
 Ask open-ended questions.
 Don’t avoid the difficult questions; but plan a natural lead in to those questions.
 Don’t accept generalizations or conclusory responses.
 Maintain objectivity.
 Ask the witness to think about any unanswered questions or vague responses.
 Invite the witness to provide additional information.

26. 3. Analyze
 Compare witness versions of events for inconsistencies.
 Evaluate credibility; consider witness motivations potentially impacting
credibility.
 Refer to documents to corroborate or contradict witness accounts.
 Develop timeline of events.
 Identify any disputed issues of fact; consider whether further follow-up would
potentially resolve disputed recollections or versions of events.
 Confront witnesses with any apparent misstatements and provide an
opportunity to correct misstatements.

27. 4. Conclusion
 Make a good faith determination of what happened.
 Identify policy violations.
 Avoid legal conclusions.

28. 5. Document
 Document investigation and findings with report detailing facts and
findings.
 Consider possible privilege issues.
 Treat as sensitive and confidential.
 Be careful to limit audience to protect against possible retaliation
claims later.

29. Ruby Fails Test
 Takes test to advance as Underwriter II
 Fails; claims adverse impact.
 Beware of UGESP (Uniform Guidelines on
Employee Selection Procedures).
– Concern race, color, religion, sex, national origin.
– Apply to tests/selection procedures used as a basis
for employment decisions.
– The use of tests /selection procedures which have
adverse impact on hiring, promotion, opportunities
of race, sex, ethnic groups considered
discriminatory unless procedure has been validated.

30.  The 4/5 rule:
– If at least 4/5 (80%) of people tested in a group
pass, not considered an adverse impact.
– e.g. 120 people take test
– 48/80 white applicants pass
– 12/40 minority applicants pass
– Less than 4/5 – validity testing needed to show
relation between job and test

31. Example of Adverse Impact
 Recent DOL settlement with Food company.
 Applicants required to take test measuring skills
in math, locating information and observation.
 DOL reviewed company data, interviewed
people.
 Exam had adverse impact on hiring minorities.
 Exam not related to entry level laborers who
inspected products; monitored equipment and
maintained sanitation.
 $550,000 settlement

32. Next Time
 The Case of the Disappearing Secrets and
the Independent Contractor
 August 17, 2016

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