For federal contractors, simple things such as failure to post open positions with local state departments of labor or neglecting to cast a wide employment “net” can lead to incompliance. US DOL OFCCP is looking for these violations to include in their yearly evaluations. Violations, especially financial violations, are the only ways a Federal Agency can justify its existence. OFCCP is no exception; President Obama increased OFCCP’s budget by a whopping 30% in FY 2012. For any industry, this is a substantial increase, but for OFCCP – a government sector – it was huge. Each year since, the budget has continued to increase, though not by such a significant percentage.
Overall, the increased budget means more compliance officers, more scrutiny, more inquiry, and more ways to find issues. In some areas, the increased budget has allowed the agency to hire up to 100% more compliance officers.
In order for OFCCP to rationalize its budget, discrimination has to be uncovered in any way possible. District Directors, Assistant District Directors, and even the compliance officers, get a bonus at the end of the year that is directly dependent on securing financial violations.
Since 95% of financial violations come from hires, this should be the primary consideration for organizations. There needs to be concerted attention on the Applicant Tracking System and how it should work on your behalf by following hiring policies and procedures that depict, and result in, a compliant Applicant Flow Log (AFL).
The only gift the US DOL has ever provided to private industry is the definition of an Internet applicant. This gives the company control on who really is an applicant. This will help to condense a large applicant pool that might lead to adverse impact.
The candidate meets the definition of an Internet applicant if the following criteria are met:
- The individual submits an expression of interest in employment through the Internet or related electronic data technologies.
This criteria is straightforward and also allows for the collection of physical applications and resumes for the open position.
- The contractor considers the individual for a particular position.
This gives the employer control on who stays on the Applicant Flow Log. Eliminate anyone who has applied after the closure date, does not fill out the application completely, or has any other disqualifying factor.
- The individual’s expression of interest indicates the individual possesses the basic objective qualifications for the position.
The applicant has at least the minimum requirements for the job. A person with a GED would not be considered for a positon as Chief Medical Officer, logical as it appears, and understandably should not stay on the AFL. Yet before this definition, any applicant would have had to be included.
- The individual at no point in the contractor’s selection process prior to receiving an offer of employment removes him or herself from consideration or otherwise indicates that he or she is no longer interested in the position.
If an applicant does not show up for an interview nor calls to reschedule, or calls to say he/she is no longer interested, or has another position, this applicant should not remain on the AFL.
A caveat: even if an applicant is removed, all applications need to be saved for two years as per regulations. It is our recommendation to only accept applications on the Internet. If an individual with a disability (IWD) wants to apply and is unable to do so through the company’s website, the company website should include a telephone number and e-mail that is ONLY to be used by those who need special assistance. There should be a caveat saying that any other call or e-mail will be disregarded, as the phone number and email address are provided only for individuals with disabilities who would like to apply.
Below are more helpful hints to prepare for a compliance evaluation:
The TEN DO’s
1 – Be Prepared
Make sure you have an updated AAP in place.
- Before the onsite visit, the Compliance Officer (CO) will inform the contractor orally or through writing what items will be needed for the inspection.
- Retrieve the requested documents and be sure you are able to intelligently discuss any areas relating to adverse impact, salary issues, etc.
- Have copies of all documents requested for the onsite review.
- Have an office available for the CO to use while he or she is onsite.
2 – View the compliance evaluation as a learning experience
The COs are the experts in their field. Take this as an opportunity to learn from them.
- Technical assistance is always available during a compliance evaluation.
- Learn as much as you can from this experience and apply this knowledge to improve your program.
3 – Maintain all records associated with employment activity – interview notes, etc.
Tracking the personnel activity data alone is not sufficient. You must maintain the records to support and document your position.
- It’s especially important to maintain interview notes with employment applications.
- Notes kept by managers on employment actions taken against employees are also important.
4 – Document and maintain specific information on good faith recruitment efforts
Recruitment documentation should include specifics, not an overall picture in the year-end report. Specifics include:
- Telephone conversation logs with community groups, etc.
- Copies of specific job advertisements, the names of the papers in which they were placed, and the dates of the ads.
- Copies of letters sent to recruitment organizations, their responses, and a listing of any referrals received.
5 – Provide correct and complete AAP and support data for the desk audit
At the beginning stages of the compliance evaluation (desk audit), the CO begins to get an overall picture of your company and its practices.
- The CO needs to gain an accurate understanding of your policies and procedures early in the evaluation process.
- This includes information on any collective bargaining agreements and the positions to which they apply, leave policies, selection procedures, etc.
6 – Have key people and key policies and procedures available during the onsite visit to explain your company’s policies on compensation, hiring, etc.
Give the CO specific and accurate information. This can only come from the people actually involved in the process.
- When providing the individuals for the CO to interview regarding your company’s policies, make sure these people are the ones making the actual decisions on salary increases, promotions, terminations, etc.
- Make sure human resources people involved in the onsite visit understand enough about the process to be able to ask intelligent questions about things they don’t understand.
- A company representative needs to be available to sit in on manager interviews, but not on confidential employee interviews.
- Make sure the human resources person’s calendar is clear while OFCCP is onsite.
7 – Make sure there is solid commitment to EEO/AA at the top
The tone for the company’s commitment to EEO/AA comes from the top.
- Managers and supervisors need to see more than a paper commitment, but a personal interest from the CEO in making EEO/AA a priority.
8 – Consistently apply personnel policies/guidelines
Inconsistent application of policies and procedures opens the door for subjectivity.
- When people make subjective employment decisions, unequal treatment occurs and discrimination can be alleged.
9 – Hold managers accountable for implementing EEO/AA requirements
In order to make EEO and AA work, managers and supervisors need to be held accountable for their actions.
- A formal accountability system should be implemented so that there are consequences for bad decisions and rewards for active support of the program.
- There needs to be some incentive in place to be sure managers and supervisors are aware that their actions have consequences – both positive and negative.
10 – Periodically review compensation system and its impact on covered groups vs. others
Don’t wait until OFCCP comes in for an evaluation to find there are disparities in your compensation system that negatively impact protected groups.
- The longer a deficient system is allowed to continue, the more employees are negatively impacted.
- Implement at least an annual review of your compensation system so that problems can be fixed before they get too bad.
- Use the information on OFCCP’s Internet as a resource for learning how to conduct a self-audit of your own compensation system.
The TEN DON’TS
1 – Don’t be afraid to ask questions if you don’t understand government procedures or terminology
A compliance evaluation can seem to be extremely complicated and burdensome if you don’t understand what the CO is doing and why.
- The CO wants you to understand the process they are going through to review your program so that you can fully understand why problems have been identified and how to correct them.
2 – Don’t view the compliance evaluation as an adversarial process
A CO’s efforts during a compliance evaluation are to get you in compliance with the regulations.
- They are not coming into the evaluation with preconceived ideas about your compliance status.
- Develop a good working relationship from the beginning to set the tone for the review.
- Hostility from a contractor gives the CO the impression that you not only feel their job is a waste of time, but that you have something to hide.
- Don’t take things personally.
- Don’t be afraid if more than one person shows up for the onsite visit.
3 – Fail to conduct necessary self-audits on a periodic basis
- Periodically review your policies, practices, and procedures to ensure that they are not in conflict with federal contractor obligations.
- Where problems are identified, fix them before OFCCP comes in to do an evaluation.
- Do your own Impact Ratio Analysis on your personnel activity data.
- Go over your I-9’s to make sure they are on file and correct. Remember, Immigration attaches fines for each bad form.
4 – Fail to be proactive in your recruitment efforts
First of all, recognize that your recruitment efforts are clearly reflected in the composition of your workforce.
- It’s not always going to be enough to just post an ad on an online job board and expect to get a diverse group of applicants.
- Make contacts with community groups.
- Network with other industries similar to yours to see what they are doing to find minorities and women.
- Knock on some doors, pound the pavement, and make phone calls to develop contacts in minority communities.
5 – Apply faulty application and selection procedures
Make sure you have a good system in place to capture the race/sex of applicants.
- Everyone involved in distributing employment applications should be fully trained on the company’s procedures for disseminating applications, tracking EEO data, and forwarding the applications to the appropriate people or office.
- Faulty procedures result in lost applications, and incomplete information on race, sex, and job for which the person applied. Ultimately this can cause qualified individuals to be overlooked or the race of individuals to be incorrect; selecting officials may make selection decisions without being provided all applications.
6 – Fail to develop effective race/sexual/disability harassment prevention programs
Issue a strong message about the lack of tolerance for race/sexual harassment.
- Then make sure managers are trained on how to deal with complaints of this nature.
- Make employees feel they can file complaints without fear of retribution and that their complaints will receive a prompt and fair investigation.
- Managers should be made aware that there are serious consequences for any violation of the race/sexual harassment policy.
7 – Fail to develop a system to resolve conflicts between employees and/or management.
- Develop an early warning system so that minor disputes don’t turn into major issues that could impact employee morale and productivity.
- Let employees know that the company is willing to listen to their problems and will make every attempt to resolve their issues.
8 – Fail to designate a neutral EEO pre-decision maker to review key employment decisions
The responsibility for final decisions on employment actions should not rest on a single individual.
- All decisions should be reviewed by an EEO person for compliance with EEO/AA requirements.
9 – Don’t be unfamiliar with your Affirmative Action Program (AAP)
Know the different components of an AAP.
- Don’t just pay for a consultant to put together your AAP without knowing what’s in it.
- A CO is going to question different parts of your AAP and you have to be able to provide the answers relatively quickly.
- Don’t put in your AAP things that sound good or that are required by the regulations and then not do them.
10 – Don’t withhold information
- Be truthful with the CO and it will save you lot of time and energy.
- When a CO is investigating a focus area, they need to be provided with all of the relevant information to conduct their analysis.
- Inaccurate or incomplete information indicates to the CO that there are flaws in your system that may contribute to discriminatory actions.
- Don’t delay the process or impede access to records. OFCCP won’t go away.
- Conversely, don’t provide too much information – it’s a waste of valuable time for a contractor to take up a whole day with presentations. OFCCP knows you want to show them you’re a good company, but keep it short.
Each company and each situation is unique, but these guidelines of “do’s” and “don’ts” are a good start for federal contractors who are hoping to have a smooth and simple compliance evaluation. The more prepared you are for the CO’s arrival, the more likely you will be able to get through the process quickly and without issues.