The Department of Labor recently settled a nearly 25-year-old hiring discrimination case with NationsBank, which later merged with Bank of America. The settlement ends an audit the Office of Federal Contract Compliance Programs (OFCCP) began on November 24, 1993. The bank agreed to pay $1 million in wages and interest to 1,027 African-American applicants for clerical, teller, and other positions. The settlement is a reminder of some best practices all contractors would do well to follow.
The OFCCP alleged the bank discriminated against African-American applicants for entry-level jobs. A Department of Labor judge found statistically significant disparities between African-American and Caucasian applicants for entry-level jobs in 1993 and from 2002-2005.
The audit revealed that the bank did not retain some records. The bank lacked clear and uniformly-applied criteria for hiring. The bank was inconsistent in its application of disposition codes, like failed credit check, hours not compatible, and applicant not minimally qualified. The inconsistency resulted in the bank being unable to reduce its applicant pool in an effort to eliminate or reduce the statistically significant disparities. The bank did not retain all records, like requisitions, interview notes, and credit reports, and many interview notes were of poor quality. The audit also revealed the bank considered candidates for positions for which they did not apply.
In 2013, a Department of Labor judge recommended that the bank pay $964,000 to the 1993 applicants and about $1.2 million to the 2002-2005 denied applicants for a total amount of $2.2 million. Three years later, the Department of Labor adopted the judge’s recommendation regarding the 1993 applicants, but reversed the decision relating to the 2002-2005 group of applicants. The bank challenged the Department of Labor’s final decision and order in federal court in May 2016. It was at this stage that the bank and the Department of Labor settled the dispute.
Under the settlement, the bank does not admit any wrongdoing, but agrees to pay $1 million in back wages and interest to 1,027 African-American applicants. The settlement does not require the bank to offer any jobs, but requires the bank to send notices of the settlement to long ago rejected applicants at their most current address provided by OFCCP.
The lessons learned from this audit and settlement include the following:
- Make certain to consider record retention obligations of OFCCP outside an audit, during an audit, and preserve company records. The OFCCP has onerous record retention obligations. If a contractor does not have a record that OFCCP requires it to retain, OFCCP may presume the record shows discrimination.
- Establish do’s and don’ts for sourcing candidates on issues such as the need for a candidate to apply for a position to be considered for a job, outreach to prior applicants or talent community members concerning open positions, and dispositioning of candidates.
- Train, train, train. Regularly train employees with recruitment responsibilities on OFCCP best practices. This is especially important because employees frequently move in and out of recruitment. Failure to regularly conduct the training ends up with recruiters having no or limited knowledge of OFCCP obligations. It is also important to provide training to employees involved in hiring.
If you have questions about OFCCP’s settlement with Bank of America, please contact Pamela Ploor at 414-277-5661 or email@example.com.
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