what is the ofccp asking for in audits under the new regulations

What is the OFCCP Asking for in Audits Under the New Regulations?

Presentation Participants

Candee J. Chambers, SPHR, CAAP

Vice President, Compliance & Partnerships

DirectEmployers Association

Joyce M. Morgan

President/Owner

Morgan Consulting Services, LLC

John C. Fox, Esq.

Founding Partner

Fox, Wang & Morgan PC

Jen Bernhardt

Regional Vice President, Membership Development

DirectEmployers Association

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I. Section 503 and VEVRAA Outreach

Highlights

II. What outreach and documentation is the

OFCCP looking for in the new regulations?

III. What do the OFCCP’s mandatory listing

requirements necessitate and permit?

IV. What are some best practices when going

through an audit with the OFCCP?

V. Proposed Assistance

VI. Question and Answer

Agenda

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• What do the regulations say about outreach?

– “Shall” vs. “Should”

– Use of technology and website requirements

• Has the OFCCP put quantitative parameters around the outreach?

– Are linkage agreements required for Section 503 and VEVRAA?

– Quality over quantity of outreach

I. Section 503 and VEVRAA OutreachHighlights

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• What’s new about outreach in the regulations?

– What are utilization goals and benchmarks?

• The OFCCP devised a way to measure the effectiveness of your hiring practices

• 7.0% utilization goal for IWDs

• 7.2% benchmark for Protected Veterans – benchmark to meet when hiring opportunities occur

– What are the new data collection requirements?

• Must track applicants and hires, as well as promotions that are deemed as placements

• Records must be maintained in separate files termed by the OFCCP as “data analysis files”

• Records must be maintained for 3 years

– What are the new Self-ID requirements for IWDs?

• Must use the form VERBATIM issued by the OFCCP

• Use it each time you are issuing an invite to self-identify

I. Section 503 and VEVRAA Outreach Highlights (cont’d)

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• What’s new about outreach in the regulations? (cont’d)

– How do the Self-ID requirements differ for VEVRAA compared to Section 503?

• VEVRAA does not have a mandated form for self-ID, but the OFCCP has offered suggested language

• Veterans are only invited at pre-offer to identify as a protected veteran; they can specify the type of protected veteran post-offer

– Will third party assisted outreach be accepted by the OFCCP in an audit?

• The OFCCP speaks about “relationships” in the context of recruiting

• “Relationships” are hard to build if someone else is doing the outreach

– Can outreach be centralized at the corporate office?

• Effectiveness is KEY

I. Section 503 and VEVRAA Outreach Highlights (cont’d)

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• Measurable Results

– Conduct an internal review/evaluation of current processes to assess any gaps

• Review existing personnel processes

• “Effectiveness” of outreach

• “Results” of outreach

• Other areas that might affect the success

– How does the 7% utilization goal and 7.2% benchmark apply to me?

• What is a utilization goal?

– “Aspirational utilization goal”

– “Yardstick” to measure the success of outreach and recruitment efforts

• What is a benchmark?

– Focuses on your entire workforce, not just a job group

– Regardless of current representation, 7.2% of those placements are expected to be Protected Veterans

II. What outreach documentation is the OFCCP looking for?

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• Measurable Results (cont’d)

– Does the same type of measurement apply to recruitment of minorities and females?

• Placement efforts will be measured by “good faith efforts”

• If a company misses a goal, then “good faith efforts” will come under scrutiny

II. What outreach documentation is the OFCCP looking for? (cont’d)

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• What type of documentation of outreach is the OFCCP looking for?– Record all outreach attempts

• Email, phone calls, face-to-face meetings, on-site visits, etc.

• Keep track of dates

– Keep detailed job applicant data from apply to interview to hire

• Be prepared to provide lists of those identified as disabled, veteran, or diverse and why

• Keep record of those denied employment and why

Joyce’s Tip

Monitor your efforts and your documents at least quarterly

until you are comfortable with your documentation. Don’t wait until the end of the year – you won’t be able to change any

results, especially if they do not show effectiveness.


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• What does personal outreach mean within Section 503 and VEVRAA?– Remember, your goal is QUALIFIED REFERRALS of job

seekers

– Somewhat intimate!

– Ask for referrals from other groups!

– OFCCP Employer Resource Referral Directory

• What if…– I just don’t have the time or resources

to do the required outreach?

– I don’t get any applicants or hires even though I’ve worked with a group for a year?

– I’m a regional recruiter located in one part of the country but recruiting in another region?


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II. Poll Question

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• Does Section 503 have a mandatory listing requirement?

– No, only the VEVRAA Regulations have a mandatory listing requirement

– Contractors must still actively target and partner with organizations that work with individuals with disabilities to promote job openings and employment opportunities

• What do the VEVRAA regulations require and permit?

The contractor agrees to immediately list (emphasis added) all employment

openings which exist at the time of the execution of this contract…with the

appropriate employment service delivery system where the opening occurs.

Listing (emphasis added) employment openings with the state workforce

agency job bank or with the local employment service delivery system will

satisfy the requirement to list jobs with the appropriate employment service

delivery system.

III. What is required within the Mandatory Listing Requirements?

VEVRAA: 41 CFR § 60-300.5(a)(2)13

III. What is required within the Mandatory Listing Requirements? (cont’d)

• What is the difference between LISTING and POSTING?

Job posting refers to the act of the

state or local ESDS (not federal

contractors) having received the job

listings supplied by federal

contractors via any of the methods

listed above, and “posting” those job

listings on the state job

bank. Federal contractors are not

required to post to state job banks,

as long as they can prove “job

listing”, as described above.

POSTING

Job listing refers to the act of the

federal contractors transmitting their

job openings to either the local

ESDSs or the state job bank. This

can be done in a variety of ways

(mail, email, direct entry into state

job banks, automatic indexing, direct

feeds) as long as the appropriate

ESDS system says it is a valid format

and enables the ESDS system to

conduct priority referrals.

LISTING

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• Is posting an available option to comply with the VEVRAA Mandatory Listing Requirements?

– NO!

• Why will the OFCCP not require federal contractors to prove jobs were posted?


- Impossibility: Each ESDS posts differently than the next. It would be impossible to provide proof of posting when each location uses a different mechanism to host, track, and manage those postings.

- Unnecessary Cost: The OFCCP knows it would be too expensive to require federal contractors to keep up with each different posting mechanism and to track each of those.

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• “If you post, but don’t list, you will be cited.”- Melissa Speer, Regional Director, SWARM Region

of the OFCCP, at the ILG National Conference on August 7, 2014

• You MUST list your jobs to provide for priority

veteran referrals

• 24 Hour Priority Access

– The ESDSs have a duty to give 24 hour priority access of job listings to all Protected Veterans

– Manually posting your jobs into the state job bank without listing them with the ESDS does not allow Protected Veterans to see the job prior to a non-veteran jobseeker


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“Just use the National Labor Exchange (NLx), and you will be able to meet your mandatory listing requirements…”

- Bradley Anderson, Regional DirectorMidwest Region of the OFCCP, at the ILG National Conference on August 7, 2014

Vet Central Reporting and Confirmations

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• Build a relationship– Join your region’s ILG

chapter to network with other federal contractors like you

– Seek out and attend other networking events that the OFCCP might be hosting

– Subscribe to OFCCP news and updates to receive notices of upcoming webinars, etc.

IV. What are some best practices when going through an audit with the OFCCP?

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• Cooperation– The OFCCP is an

enforcement agency;They are not your best friend and not a new enemy

– Ensure your consultant/attorney/ compliance vendors can and do maintain a cooperative relationship with the OFCCP

IV. What are some best practices when going through an audit with the OFCCP? (cont’d)

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Joyce’s Tip

Ask the Compliance Officer to put the data request in writing, or

reply to the Compliance Officer’s verbal request in writing so there

is a record of the communication/data request. You

also have a right to ask the OFCCP to provide you with their

regulatory justification.

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• Professionalism

– Regardless of agreement or disagreement, be firm but keep emotions in check

– You have a right to ask for the regulations in question to be provided to you in writing

• Know OFCCP Limits

– The OFCCP has the authority to request documents and information

– Know the difference between “data” and “information”

– Professional challenge – ask for regulatory authority and ensure they have the authority to ask for the materials they are requesting

– Know the contents of the FCCM for the OFCCP request for data/information


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Proposal to amend Executive Order 11246

• DirectEmployers submitted comments, on behalf of our members, to the Office of Management & Budget (OMB) on September 5, 2014

• Comments due to the OFCCP on November 6, 2014 – DirectEmployers will be surveying our members in order to provide more detailed comments based on the following areas of importance as outlined in the NPRM:

– Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

– Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

– Enhance the quality, utility, and clarity of the information to be collected; and

– Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of IT (e.g., permitting electronic submission of responses).

NPRM – Equal Pay Report Comment LetterExclusive Member Support

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V. Proposed Assistance

OFCCP Compliance

Recruitment & Employer Branding

Data

Networking & Education

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Cutting Edge Technology, Owned by YOU!

Member Career Sites(indexed/scraped every 24 hours)

3,600+ Wagner-Peyser funded State Workforce Agencies and One Stop Career Centers

Local Veteran Reps (LVERs)

Disabled Veteran Reps (DVOPs)

Locations

Occupations

Specialty Terms

40KSITES

My.jobs Network

Combos

State Feeds

Partner Feeds

Homegrown ATS

API/XML Feed

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OFCCP Compliance

Automated job delivery to over 3,600 Wagner-Peyser funded ESDSs

Endorsement from NASWA and signed agreements with all 50 states vetting DirectEmployers’ process

Exclusive partnership between NASWA and DirectEmployers which created the National Labor Exchange (NLx)–the largest supplier of vetted jobs to the states daily

24/7 access to VetCentral reporting showing proof of listing, time and date stamp documenting receipt, and vetted contact info for the ESDS

Partner Relationship Manager (PRM) allowing federal contractors to track and manage outreach

PRMReporting

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Networking & Education

Recruitment & Employment Branding

Data

1,000 niche sites included in job distribution network

Member owned My.jobsRecruitment Marketing Site

Veterans.jobs skills translator

Job distribution analytics tracking candidate portal activity and origination

Source code application

Web analytics to track SEO performance

DirectEmployers Annual Meeting

Member Pipeline with archived webinars and surveys

Insight from John C. Fox and other compliance experts

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National Employment Law Institute

32nd Annual Advanced Level

AFFIRMATIVE ACTION BRIEFING

Austin, TX • October 9-10, 2014 • Four Seasons Hotel

Chicago, IL • October 16-17, 2014 • Four Seasons Hotel

Washington, D.C. • October 23-24, 2014 • Ritz-Carlton Pentagon City

San Francisco, CA • October 30-31, 2014 • Westin St. Francis

DirectEmployers Association members can receive an exclusive discounted rate to attend. Contact your membership representative, call (866) 268-6206, or email [email protected] today

for the special promotional code to use at registration.

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Questions?

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Contact Information

(317) 874-9000 or (866)268-6206

[email protected]

@DirectEmployers

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what is the ofccp asking for in audits under the new regulations

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