ofccp compliance: trends and best practices

OFCCP COMPLIANCE: TRENDS AND BEST PRACTICES

Mickey Silberman, Esq. Jackson Lewis, LLP

950 17th Street, Suite 2600 Denver, CO 80202

(303) 225-2400 [email protected]

Jennifer Seda, Esq. Jackson Lewis, LLP

950 17th Street, Suite 2600 Denver, CO 80202

(303) 225-2411 [email protected]

ERE WEBINAR

June 2, 2010

© 2010 Jackson Lewis LLP

Introductory Statement

THE MATERIALS CONTAINED IN THIS PRESENTATION WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE PARTICIPANTS’ OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS LLP. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE.

1


About Jackson Lewis

Jackson Lewis LLP is dedicated to representing management exclusively in workplace law and related litigation. With 45 offices nationwide, and more than 600 attorneys, the firm has a national perspective and sensitivity to the nuances of regional business environments.

Guided by the principle that a positive work environment results in enhanced morale and increased productivity, the firm devotes a significant portion of its practice to management education and preventive programs. This approach helps limit exposure to grievances, charges and lawsuits.

2


About The Affirmative Action Practice Group

We have unparalleled experience preparing AAPs and

defending them before the OFCCP in all industries and

areas of the country. Our diverse team of 35 attorneys,

paralegals, and support staff prepares approximately

1,800 AAPs a year.

Since 2008, we have defended over 250 OFCCP audits,

including successful defense of Corporate Management

(“Glass Ceiling”) Compliance Evaluations. As a law firm,

we offer more than consulting services, we offer

strategic thinking and sophisticated legal representation.

3


About Mickey Silberman, Esq.

Mickey is the Chair of Jackson Lewis’ Affirmative

Action Practice Group and is the Managing Partner of

the firm’s Denver, Colorado office. Mickey represents

management exclusively in all areas of employment

law and specializes in EEO, affirmative action and

diversity.

Each year, Mickey directs the defense of hundreds of

OFCCP audits throughout the country. He has

obtained Letters of Compliance in more than 99% of

those audits.

4


About Jennifer Seda, Esq.

Jennifer is an Associate in the firm’s Affirmative Action Practice Group in the firm’s Denver, Colorado office. Jennifer represents management exclusively in all areas of employment law and specializes in EEO, affirmative action and applicant tracking.

Jennifer defends approximately 60 OFCCP audits throughout the country and prepares approximately 300 affirmative action plans each year for employers. Jennifer also spends a significant amount of time counseling employers about the strategic development and implementation of applicant tracking systems.

5


Agenda

  Back to the Future: Good Faith Efforts with a Twist

  Adverse Impact: “Reverse” and Sub-Minority Analyses

  Strategic Disposition Codes

  Considerations for Recruiting with Social Networking Sites

  Q & A

6


BACK TO THE FUTURE: GOOD FAITH EFFORTS WITH A TWIST

7


Back to the Future: Good Faith Efforts with a Twist

8

  During the past several years, EEO enforcement agencies (EEOC and OFCCP) have focused little on traditional affirmative action outreach and recruitment efforts or “Good Faith Efforts” (“GFEs”)

  But with the change in OFCCP leadership, the Agency has returned to “GFEs” but with a new twist

•  Traditionally, “GFEs” concentrated on minorities and females

•  Instead, the current “GFE” focus is on veterans and the disabled


Back to the Future: “GFEs” with a Twist (continued)

9

  Increasingly during audits and investigations, the enforcement agencies are intently scrutinizing both veteran and disabled outreach efforts and results

  The agencies often will demand detailed information on how many applicants were referred by veteran and disabled recruitment sources and how many were hired

  This new, more numbers-oriented approach to “GFEs” places the obligation on employers not only to use veteran and disabled recruitment sources, but also to monitor the effectiveness of those sources



10

  Similarly, the enforcement agencies are intently scrutinizing the effectiveness of minority and female diversity outreach efforts

  The agencies often will demand detailed information on how many applicants were referred by minority and female diversity recruitment sources and how many were hired

  Employers should be able to evaluate the effectiveness of these sources and, if they are not effective, should consider implementing new sources



11

  In late 2009, the OFCCP announced plans to develop affirmative action statistical analyses for veterans and disabled similar to the statistical analyses for minorities and females

  The Agency is currently seeking input regarding GFE best practices and how to make veterans and disabled affirmative action obligations more successful



12

  Recommendation: ensure that you regularly list job openings with:

•  Minority and female diversity recruitment sources

•  Veteran and disabled diversity recruitment sources

•  State employment services (this obligation arises from the veterans affirmative action regulations)

  Record referral source information for applicants from diversity recruitment sources

•  Monitor the number and quality of applicants referred by these sources and, as appropriate, change these sources


But despite the Agency’s focus in some new (and some old) areas, “the Song Remains

the Same”

THE CONTINUING FOCUS ON APPLICANT-TO-HIRE

ADVERSE IMPACT

13

Adverse Impact Update


While the Agency continues to spend its time and gather considerable money from applicant-to-hire adverse impact, recent developments in this area are catching employers unaware, including the Agency’s focus on:

  Reverse” adverse impact; and,

  Sub-minority adverse impact.

Bottom Line: The EEOC and OFCCP are “going where the numbers take them.” The agencies are no longer focusing on just minorities and females, but rather investigate any alleged race and/or gender discrimination.

Adverse Impact Recent Developments

14


Analysis Rate for

Protected Group

Rate for Non-

Protected Group

IRA Standard Deviation

Minority v. Non-Minority 9/100 .09

1/100 .01

9.0 -2.596

Female v. Male 4/100 .04

6/100 .06

0.67 0.649

Traditional Adverse Impact Analysis

Traditionally, these are good adverse impact results.

15


Analysis Rate for

Protected Group

Rate for Non-

Protected Group

IRA Standard Deviation

Minority v. Non-Minority 9/100 .09

1/100 .01

9.0 -2.596

Female v. Male 4/100 .04

6/100 .06

0.67 0.649

Black v. All Others 1/80 .01

9/120 .08

.17 1.987

Black v. Hispanic 1/80 .01

8/20 .40

.03 5.416

Sample “Reverse” and Sub-Minority Analyses

16


With the increase in technology, the agencies and employers are able to analyze large data sets

  As employers continue to implement applicant tracking systems, utilize HRIS systems and third-party vendors for pre-employment testing, drug screens and background checks, etc., large data sets are available for analysis

  At the same time, new software allows the agencies and employers to analyze large sets of data at the click of a button

Technology – Making It All Happen

17


Non-Pacific Islanders: Adverse impact against Non-Pacific Islanders in an employer’s hiring process in rural Utah

Native Americans: Adverse impact against Native Americans in an employer’s hiring process in American Falls, Idaho

Hispanic vs. White + Black: Adverse impact against Whites and Blacks as compared to Hispanics in an employer’s hiring process in Houston

Examples of Recent OFCCP Sub-Minority Investigations

18


STRATEGIC DISPOSITION CODES

19


Now, more than ever, as “red flags” occur more frequently, employers must focus on explanations of statistical adverse impact

Employers can effectively do that through the use of strategic disposition codes

Importance of Strategic Disposition Codes

20


Strategic disposition codes should help employers clarify:

  When? What stage did the candidate fall

out?

  Why? Why did they fall out?

  Who? Who made the decision?

This is especially helpful for employers undergoing an audit several years later

Purposes of Disposition Codes

21


Examples of bad disposition codes:

  More qualified applicant selected

  Not chosen

  Interviewed/screened

  Applicant disqualified

  Blank

Disposition Codes

22


Examples of strategic disposition codes:

  Resume Screen – Better qualified candidates selected – education – Recruiter D. Black

  Resume Screen - Not willing to work for compensation – Recruiter M. Smith

  Resume Screen – Data management techniques – Recruiter B. Fleming

  Phone Screen - Did not return calls – Recruiter J. Segall

  Phone Screen - Not willing to work hours – Recruiter L. Anderson

  Test – Failed Test – Employment Manager P. Barry

  Interview - No show to interview – Hiring Manager S. Perez

  Drug Test – Did Not Show for Drug Test– Employment Manager N. Moore

  Background Check – Failed Background Check – HR Administrator W. Barnes

Disposition Codes (continued)

23


CONSIDERATIONS FOR RECRUITING WITH SOCIAL

NETWORKING SITES

24


Social Networking Sites

  Social networking sites like Facebook, Twitter, LinkedIn, etc. contain personal and professional information on millions of potential job candidates

  Facebook has over 400 million active users and is the second most heavily trafficked website in the world (behind Google and ahead of Yahoo). The average user age is 38.

  MySpace has over 200 million registered users (average age is 31).

  LinkedIn has over 60 million users.

… And growing every day. 25


Advantages of Recruiting with Social Networking Sites

  Recruiters may search social networking sites to identify qualified candidates for existing and upcoming positions

  If recruiting with social networking sites, keep in mind the following:

  Internet Applicant Rule definition of “applicant”

  Record keeping obligations

  Posting obligations

  Obligation to make good faith efforts to attract diverse candidates (EEO)

  Discrimination claims

26


Social Network Recruiting: Internet Applicant Rule

  Internet Applicant Rule is somewhat antiquated

  Proposed in October 2005; effective in February 2006

  OFCCP did not contemplate social networking sites in coming up with the rule; not addressed in FAQs

  Elements of the Internet Applicant Rule 1.  Individual submits an expression of interest

2.  Employer “considers” the individual for a particular position

3.  Individual possesses the basic qualifications

4.  Individual does not “self-select out” of the process

  Tip: Check to see if the individual is interested in the position, if not, they are not an “applicant.”

If the candidate meets these elements, he/she is an “applicant” who must be (i) included on the applicant flow log, (ii) included in adverse impact analyses and (iii) whose documents must be maintained.

27


Social Network Recruiting: Record Keeping Obligations

  Sourcing: Not Considered for a Particular Position

  No record keeping obligation

  Recruiting: Considered for a Particular Position

  Maintain a record with the following information:   Position for which search was made

  Search criteria used

  Date of the search

  Resumes of job seekers who met the basic qualifications for the position who were considered by the employer (and who were interested in the position)

* America’s Job Exchange or Direct Employers can assist in posting with the state. Although the OFCCP has challenged the use of these organizations, they are typically accepted in audits

28


Social Network Recruiting: Posting Obligations

  If recruiting for a particular position, do not forget employer posting obligations. All jobs must be posted with the state except:

  Jobs that will be filled by internal candidates

  Executive positions or

  Jobs lasting three days or less

29


Social Network Recruiting: EEO Obligations

  Employers have an obligation to make good faith efforts to attract qualified diverse (race and gender) candidates into the candidate pool

  Potential problems with social networking sites from an EEO perspective:

  Not necessarily diverse candidates

  More difficult to track

  Inconsistent use of the resource

30


Social networking sites contain an abundance of personal information that an employer would not necessarily obtain in hiring process, such as:

•  Sexual orientation •  Marital status/children •  Religion •  Political views •  Affiliations •  Ethnicity •  Personal interests

Tip: Have a non decision-maker conduct the search and filter out protected information

Social Network Recruiting: Discrimination Claims

31


Questions?

32