ofccp audit: violations & recommended solutions · 11/3/2016 · ofccp audit: violations &...

OFCCP Audit:

Violations & Recommended Solutions

November 3, 2016

Be Lam Nina Le-Tse

Overview of Biddle Consulting Group, Inc.

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Affirmative Action Plan (AAP) Consulting and

Fulfillment

• Thousands of AAPs developed each year • Audit and compliance assistance • MyAAP™ Enterprise software

HR Assessments

• AutoGOJA™ online job analysis system • TVAP™ test validation & analysis program • CritiCall™ pre-employment testing for 911 operators • OPAC™ pre-employment testing for admin professionals • Video Situational Assessments (General and Nursing)

Custom Test Development & Validation

•“High stakes” test development •Validation studies in response/prevention to litigation

EEO Litigation Consulting /Expert Witness Services

• Over 200+ cases in EEO/AA (both plaintiff and defense) • Focus on disparate impact/validation cases

Compensation Analysis • Proactive and litigation/enforcement pay equity studies • COMPare™ compensation analysis software

Publications/Books • EEO Insight™: Leading EEO Compliance Journal • Adverse Impact (3rd ed.) / Compensation (1st ed.)

BCG Institute for Workforce Development

• 6,000+ members • Free webinars, EEO resources/tools

Speaking and Training • Regular speakers on the national speaking circuit

• BCGi Memberships (free): ~6000+ members / 15,000 HRCI credits to-date

– Online community

– Monthly webinars on EEO compliance topics

– EEO Insight Journal (e-copy)

• BCGi Platinum Membership (paid)

– Includes validation/compensation analysis books

– EEO Tools including those needed to conduct AI analyses

– EEO Insight Journal (e-copy and hardcopy)

– Access to the BCGi library of webinars, training materials, and much more …

www.bcginstitute.org 3

Biddle Consulting Group Institute for Workforce Development (BCGi)

HRCI & SHRM Credit

• BCGi is a HRCI & SHRM Preferred

Provider

• CE Credits are available for attending

this webinar

• Only those who remain with us for at

least 80% of the webinar will be eligible

to receive the HRCI & SHRM training

completion forms for CE submission

Biddle Consulting Group, Inc. 193 Blue Ravine, Suite 270 Folsom, CA 95630 916.294.4250 www.biddle.com | www.bcginstitute.org Be Lam ([email protected]) Nina Le-Tse ([email protected])

Contact Information

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mailto:[email protected]

mailto:[email protected]

OFCCP audit is a complex topic

• But it is a VERY important topic

• And one that has significant ramifications…

We are not giving legal advice

This presentation has been designed to benefit all stakeholders in the EEO compliance community

Disclaimer

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• Introduction to the violations data

• Violations and Recommended Solutions

― Written Affirmative Action Plan (AAP)

― Past Performance

― Recruitment

― Recordkeeping

― Hiring

• Common Requests During OFCCP Audit

• Summary and Take Aways

• Questions and Answers

Agenda

Copyright © Biddle Consulting Group, Inc. 7

Audit Violation Data (2011-2016)

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Fiscal Year Notice of Compliance Conciliation Agreement

Total # of Compliance Evaluation

Count Percentage Count Percentage Count

FY2011 2,898 72.32% 1,109 27.68% 4,007

FY2012 2,675 66.79% 1,330 33.21% 4,005

FY2013 2,965 72.32% 1,135 27.68% 4,100

FY2014 3,269 85.15% 570 14.85% 3,839

FY2015 2,134 82.01% 468 17.99% 2,602

FY2016* 1,338 78.94% 357 21.06% 1,695

Total 15,279 75.46% 4,969 24.54% 20,248

• Data taken from Department of Labor’s Enforcement Data

– Online enforcement database

o http://ogesdw.dol.gov/views/data_catalogs.php

o Consists of closed compliance evaluations conducted by the OFCCP from FY2011 – FY2016

Copyright © Biddle Consulting Group, Inc.

* Data was pulled as of 10/06/2016

http://ogesdw.dol.gov/views/data_catalogs.php

Audit Violation Data (2016)

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Type of Closure Count Percentage

Notice of Compliance 1338 78.94%

Conciliation Agreement 317 18.70%

Consent Decree 2 0.12%

Financial Agreement 38 2.24%

Total 1695


• 2016 data

― Frequently occurred violations

o Written AAP

o Past Performance

o Recruitment

o Recordkeeping

Audit Violation: Written AAP • Violations

– Show cause

o Did not submit an AAP

o Denied to submit an AAP

o Not a compliant AAP

– Not complete

o Missing item(s) in the itemized listing

– More than one attempt of the compliance officer’s request

• Recommended Solutions

– Be PROACTIVE!

o Develop a written AAP annually. It’s a REQUIREMENT!

– Create a checklist of the scheduling letter o https://www.dol.gov/ofccp/regs/compliance/faqs/SchedulingLetter_Itemiz

edListing_508c.pdf

13 Copyright © Biddle Consulting Group, Inc.

https://www.dol.gov/ofccp/regs/compliance/faqs/SchedulingLetter_ItemizedListing_508c.pdf

https://www.dol.gov/ofccp/regs/compliance/faqs/SchedulingLetter_ItemizedListing_508c.pdf

NOTE: Contractor has 30 days, from receipt of the audit letter, to submit the completed AAP to the OFCCP.

Written AAP: Checklist for the Itemized Listing


Audit Violation: Past Performance

• Violations: – Reoccurring violations

o Examples: recordkeeping, assessment of outreach and positive recruitment, accommodation, salary, etc.

• Recommended Solutions: – Executive Team buy in

o Inform Executive team of all violations (past and current)

– Managers and Supervisors

o Work together to strategize an action plan to remedy the violation

– Accountability

o Assign accountability to implement plans/strategies

– Evaluation

o After the action plan is implemented for a period of time, evaluate the plan to ensure that it works!

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Audit Violation: Recruitment

• Violations:

– Job Listings

– Outreach/Positive Recruitment

– Evaluation/Assessment of Outreach and Positive Recruitment



• Recommended Solutions: Job Listings – At minimum list all job openings with the state/local agencies

o Contractors are required to list all job openings with the Employment Service Delivery System (ESDS).

o Union jobs

– Listing/posting at union halls will not suffice the listing requirement.

– Employment openings subject to the mandatory job listing requirement include all positions except

o Executive and top management positions,

o Positions that will be filled from within the contractor's organization, and

o Positions lasting three days or less

― Listing with the appropriate employment service delivery system must be done concurrently with a contractor's use of any other recruitment source or effort



• Recommended Solutions: Job Listings – Posting is NOT a requirement, LISTING is!

– Why it is important to list?

o Jobs must be listed prior to the posting to allow time for the Local Veterans Employment Representative (LVER)/ Disabled Veterans Outreach Program (DVOP) or Business Services staff to provide the priority referral to protected veteran

– DOCUMENTATION!



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• Recommended Solutions: Outreach And Positive Recruitment

– Outreach is more than listing and posting jobs

o Local outreach and building relationships with outreach partner

o Documentation of the relationships you have built and events you have participated

– Building relationships with outreach partners

o Send emails regularly with updates about hiring needs

o Make phone calls to check in – get to know them

– Be able to track where candidates are coming from

– Outreach requirement for veterans and individuals with disabilities has always been a requirement

o Focus shifted to protected veterans and individuals with disabilities due to the new regulations

– Do not forget outreach for females and minorities

o It is still a requirement

– Not meeting your AAP Goals will NOT get you in trouble, NOT trying will!


• Recommended Solutions: Evaluation of Outreach and Positive Recruitment

– Track referral sources from applicants to help measure the effectiveness of each outreach and positive recruitment.

– Document each activity

o Evaluate each activity as you go, so there’s time to make correction/adjustment

– Are you getting qualified candidates? If not, why?



• Recommended Solutions: Evaluation of Outreach and Recruitment

Evaluation of Outreach and Recruitment (Sample):

Criteria for Evaluation:

1. Did the activity attract qualified applicants with disabilities and/or protected veterans?

2. Did the activity result in the hiring of qualified individuals with disabilities and/or protected veterans?

3. Did the activity expand Contractor’s outreach to individuals with disabilities and/or protected veterans in the community?

4. Did the activity increase Contractor’s ability to include individuals with disabilities and/or protected veterans in its workforce?

Activity Date Brief Description Evaluation

Annual Meeting with State Vocational Rehabilitation Service Agency (SVRA)

March 1, 2014 Met with SVRA to inform of Company’s outreach and recruitment efforts for IWD’s

SVRA will begin posting all of Company’s job openings starting in 2015 to expand Company’s applicant pool

Veterans Job Fair held at Hilton Hotel

April 25, 2014 Participated at local job fair aimed at counseling veterans on employment applications and inclusion of veterans in the workforce

Received 25 applications on the spot which resulted to hiring 2 qualified veterans.

Annual meeting with Company’s Hiring Managers and Recruiters

July 20, 2014 Meeting also included a training on Company’s AAP obligations.

Discussed, brainstormed and received great ideas on other Outreach and Recruitment activities and programs that the Company can initiate/participate in. Will implement these ideas sometime in the 3rd quarter of 2014.



Audit Violation: Recordkeeping

• Violations:

– Incomplete/Inaccurate Data

o Personnel or employment records, accommodation requests, job listing, etc

– Solicitation records of demographic information

o Race

o Gender

o Protected veterans

o Individual with disabilities



• Recommended Solutions: Recordkeeping (APPLICANT DATA) ― Incorrect applicant data is the number one data-related technical violation in

OFCCP conciliation agreements.

o No applicant data

o More hires than Applicants

― Collecting/retaining proper applicant data is related to four (4) primary components

1. Having the right system (based on usage, size, volume, features, etc.)

2. Properly configuring the system

• Collecting the right data

• Require gender/race to continue application process

• Defining the appropriate disposition codes (must match the selection processes)

• Defining the necessary reports/output files

3. Training those who will be using the system (recruiters, managers, etc.)

4. Regularly evaluating the system use (perhaps mock audit)



• Recommended Solutions: Recordkeeping (APPLICANT DATA)

― It is rare that all of these parts work perfectly together to generate accurate data on all occasions, as a result, “clean-up” is often necessary

– Applicant (examples of applicant data clean up)

o All hires appear in the applicant file (in the proper applicant pool)

– Must be able to link applicants to specific hires

o The job title, gender, and race of the applicant ‘s record is reconciled with the hires file

o All applicants are properly disposition at the close of each requisition

― As recruiters and hiring managers, you are on the front line in the battle to collect accurate data . . . the data must “tell the story” of each applicant.



• Recommended Solution: Recordkeeping – Accommodation

o Keep track of the following

– What was the accommodation request?

– Who requested an accommodation?

– Was the accommodation granted? If not, why?

– Employment Records

o Document all employment activities made on each employee, such as, but not limited to:

– Promotion/transfer/demotion reasons

– Termination reasons

– Salary changes

– Training



• Recommended Solutions: Self ID forms

– Solicit race/gender/protected veteran/disabled early or where ever possible in the process

– Periodically audit your self ID stage to ensure that candidates can easily view and access the Self ID forms

– Solicit pre and post offer candidates and new hires of their demographic information

– Solicit employees demographic information periodically to ensure accuracy

– Conduct audit (monthly, quarterly, semi-annually, etc.) on your response rate.


Audit Violation: Hiring

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Fiscal Year

Total # of Violations in FY 2016

Violation: HIRING

Count Count Percentage

FY2016 357 37 10.36%


• Violations: Hiring

– One of the least violation found in FY2016, but most IMPACTFUL!


• Violation in adverse impact/impact ratio in hiring

– Consent Decree and/or Financial Agreement

– Back pay, interest

o Adverse impact in hiring can lead to millions of dollars in “make-whole” relief by the OFCCP

– Forced offer

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Violation: HIRING

Type of Violation Count Percentage

Conciliation Agreement 5 13.51%

Consent Decree 1 2.70%

Financial Agreement 31 83.78%



What is adverse impact?

− Adverse Impact is when a facially neutral selection device or process yields a substantially different rate of selection in hiring, promotion or other employment decision which works to the disadvantage of members of a race, sex or ethnic group

Important: Identify any adverse impact in the selection processes and prepare a response with supporting documentation!



• Recommended Solutions:

– Review data to ensure accuracy!

o Investigate your data

– Are the candidates truly applicants?

– Ensure that the analyses reflect “reality”

– Conduct Appropriate Analyses

– Validation



• Recommended Solutions: Review Data for Accuracy

― Data

o Is it correct?

− Timeframe?

Should reflect those considered for hires occurred during the at-issue time period

− Were all the appropriate data captured?

o Consider data refinements

− Does it reflect the definition of an internet applicant?

Exclude applicants that are not associated with any hires

Exclude records that are not truly applicants

o Need to ensure data integrity before submitting to the OFCCP



• Recommended Solutions: Analyses Reflect Reality

− Who should be included in the applicant data? Follow the Definition of an Internet Applicant

1. The job seeker submits an expression of interest in employment through the internet or related electronic data technologies;

2. The contractor considers the job seeker for employment in a particular position;

3. The job seeker’s expression of interest indicates the individual possesses the basic qualifications for the position; and

4. The job seeker at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position




― Disposition Codes

o A disposition code is a device that identifies ALL specific decisions or actions that have been taken relative to an Applicant.

– Describes which step the candidate fell out of the selection process

o Used to filter out the non-applicants

o Disposition codes should varies based on the selection process

o Ambiguous disposition codes will affect the analysis since you cannot confidently exclude non-applicants

o Results are not accurate since all applicants and non-applicants will be analyzed



Disposition Codes Male Female

No Show: Interview 5 4

Did Not Meet Basic Qualifications:

Education

17 31

Failed Test 14 11

Hired 26 15

Total Applicants (Unrefined)

Selection Rate

62

41.9%

61

24.6%

SD*= 2.04

Total Applicants (Refined)

Selection Rate

40

65.0%

26

57.7%

SD* = 0.60

* SD = Standard Deviation. Statistically significant when 1.96 or greater.




• Recommended Solutions: Conduct Appropriate Analyses

o Is it appropriate to analyze by job groups?

– Do the job titles within the job groups have the same selection process?

o Conduct analysis (adverse impact) by job title and/or requisition

– Only if the selection process is distinct and separate for each job title within the impacted job group



• Recommended Solutions: Conduct Appropriate Analyses

Title VII of 1964/1991 Civil Rights Act

― Enforcement agencies have every right to investigate the practices, procedures, and tests (i.e., the individual “steps”) contractors use to screen applicant

― Conduct step analysis (documentation/disposition code is the key)

Translation: Employers must be able to identify who took/passed/failed each step within a selection process.

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• Recommended Solutions: Validation

– Adverse impact in itself does not equal discrimination. In the absence of validation, then it becomes discrimination

– Validation is evidence that a practice, procedure, and test (PPT) is job related and consistent with business necessity

– A job analysis that complies with the Federal Uniform Guidelines on Employee Selection Procedures is the basis for a valid test

o A Job Description is NOT a job analysis

– A Job Analysis identifies the “content” of the job: Knowledge/Skills/Abilities/Personal Characteristics

– Keep the job analysis current


• Resubmit compensation data to include job groups or pay bands; include any other factors used by the federal contractor to determine pay

• Compensation factors and data from the time each employee started work (up to 10 years in some cases)

• Job Group Analysis from previous year

• Explanation of Job Groupings and how they were created

• Copy of contractor’s FMLA policy

• Copy of VETS4212 reports

• Copy of EO Clause in contracts and purchase orders, verbatim, and in bold text

• Copy of contractor’s policy regarding background checks

• EEOC changed its policy on use of criminal history in the selection process

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OFCCP Requests During Audit


• Copies of job postings for all positions that were listed with the state workforce agency, job bank or with the local employment service delivery system

• Copies of all job vacancy announcements or other documentation showing proof of external dissemination of policy, outreach and positive recruitment of veterans, disabled veterans, recently separated veterans, or Armed Forces service medal veterans

• Proof of outreach, recruitment, and supporting data for job groups with only 1 hire but observed to have very few applicants

• Background information regarding the audited location (when was it acquired, how many employees were laid-off due to acquisition, etc.)

• Employee Handbook and Compensation Policy

• Explanation of reasons why current incumbents don’t match transaction data

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• Blank copy of job application or a copy from the website

• Copy of invitation to Self-ID, including:

• Protected Veterans

• Individuals with Disabilities

• Race

• Gender

• Submission of self-monitoring reports (i.e. adverse impact and compensation analyses)

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Summary/Take Aways

• Written AAP

– Be PROACTIVE. Develop annual AAP. It’s a requirement!

• Past Performance

– Ensure Executive team is aware of the violations

– Plan, strategize, and evaluate action items to remedy the violations.

• Recruitment

– List all openings to local and state agencies

– Build relationship with local outreach partners

– Document all outreach/recruitment events participated

• Recordkeeping

– Track all applicant data. Make sure that it tells the “story” of each applicant’s selection process (disposition code)

– Track all personnel movements and activities


Summary/Take Aways

• Hiring

– Ensure data is accurate

– Analysis should reflect reality

– Conduct appropriate analyses

o By job title/requisitions

o Step analysis (practice, procedure, and test)

– Applicant Disposition

• Validation

– Ensure that the PPTs used during the selection process (e.g., BQ, interview, etc.) are job related and consistent with business necessity

– Ensure that the job analysis complies with the Federal Uniform Guidelines on Employee Selection Procedures

– Keep the job analysis current


ofccp audit: violations & recommended solutions · 11/3/2016 · ofccp audit: violations &...

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