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Bryce Hansell

Bryce Hansell

Associate Consultant
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Bryce Hansell, an Associate Consultant, joined DCI Consulting Group, Inc. as an HR Analyst in January of 2015. He works to help contractors comply with regulatory obligations and achieve goals in the areas of affirmative action and equal employment opportunity.

Bryce received a Master of Arts degree in Industrial-Organizational (I-O) Psychology from Xavier University, summa cum laude, and a Bachelor of Arts degree in Psychology from Bellarmine University, summa cum laude. During his graduate studies, he was part of teams that conducted data analyses for a leadership development survey for a client in the Cincinnati area, developed a training manual for the Epilepsy Foundation of Cincinnati, established a consulting center through Xavier’s I-O program, and conducted data analyses for a personality assessment for a client in the Cincinnati area. Bryce was also a teaching assistant, responsible for leading two undergraduate psychology labs. His graduate internship was completed at The Nielsen Company in the HR department.

Bryce Hansell ’s Recent Posts

On September 30, 2016, the U.S. Department of Labor’s (DOL) Wage and Hour Division published the Final Rule implementing Executive Order 13706, which requires covered federal contractors to provide up to seven days (56 hours) of paid sick leave annually to all employees. The DOL predicts that the Final Rule, effective on November 29, 2016, will provide paid sick leave to 1.15 million employees, including 594,000 employees who do not currently receive paid sick leave.

The Executive Order applies to new contracts and replacements for expiring contracts that result from solicitations, or contracts awarded outside the solicitation process, issued on or after January 1, 2017. It also covers those who are exempt from the FLSA’s minimum wage and overtime provisions. However, it does not apply to employees working on contracts covered by a collective bargaining agreement (CBA) that provides at least 56 hours of paid sick leave until January 1, 2020, or the CBA termination date, whichever occurs first.

Summary of Paid Sick Leave Terms under Final Rule:

  • Time accrued:  employees will accrue 1 hour of paid sick leave for every 30 hours worked, for up to 56 hours in a year.
  • Permitted use:  for employee’s own illnesses and other health care needs (includes preventive care); for the care of a family member or loved one (e.g. close friend) who is in need of health care; for purposes resulting from being the victim of domestic violence, sexual assault, or stalking (i.e. can include seeking counseling, relocation, or legal services)—or to assist a family member or loved one who is a victim of such behavior.
  • Carry-over:  employees can carry over up to 56 hours of unused paid sick leave from year to year while they work for the same contractor.
  • Cash-out:  contractors will not be required to pay employees for any unused paid sick leave when they leave their job.
  • Time used:  employees can use as little as an hour, or as much as all paid sick leave they have accrued, at a time.
  • Certification:  employers may require that employees using paid sick leave provide certification from a health care provider.
  • Anti-retaliation:  employers may not interfere with the accrual or use of paid sick leave.

For additional information on Executive Order 13706 and the Final Rule, including a Fact Sheet, FAQs, as well as some other helpful links, be sure to stop by the DOL website and consult with your legal expert to determine what these new requirements mean for your organization.

By Bryce Hansell, Associate Consultant and Jeff Henderson, Associate Consultant

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In accordance with the revised Section 503 regulations, federal contractors are required to invite applicants and employees to voluntarily disclose disability status and include these figures in their affirmative action plans. This information is strictly voluntary, so contractors may not compel or coerce employees or applicants to complete the form. Therefore, 100% participation of employees or applicants in the voluntary invitation is not likely.

Given this, DCI clients have raised concerns about low participation rates in this voluntary process and the impact that this will have on the disability goals and other analytics. Therefore, we conducted a follow-up to our 2015 survey for contractors to share their self-identification participation rates to establish an industry benchmark for contractor awareness. All information gathered from this survey was kept anonymous, and the following results have been aggregated.

This survey addressed six areas contractors should consider when interpreting self-identification results:

  1. Participation rate (percent of employees that filled out the survey);
  2. Response rate (of those that participated in the survey, what percent were disabled);
  3. Utilization rate (percent of employees disabled in comparison to the workforce);
  4. Applicant Participation Rate (percent of applicants that filled out the survey);
  5. Applicant Response Rate (of those applicants that participated in the survey, what percent were disabled); and
  6. Applicant Rate (percent of applicants identifying as disabled)

One additional analysis conducted was a correlation analysis to compare rates in comparison to contractor size. For example, are employees more likely to participate in the voluntary survey in a smaller company versus a larger company? The results suggest that the smaller the company, the more participation.

 1. Participation Rate

Participation rate was measured by the percent of the entire workforce that completed the voluntary self-identification form. Results showed that as the size of the company increased, the participation rate decreased.

  • Average participation rate: 32.33 (an increase from 22.32 in 2015)
  • Correlation between company size and participation rate: -0.49 (a stronger correlation than -0.28 in 2015)

2. Response Rate

Breaking the results down even further, response rate was also considered. Response rate assessed the percent of employees that responded affirmatively to having or having had a disability out of the employees that participated. Interestingly, this resulted in a positive correlation with company size, meaning, out of the employees that participated, the rate of those that responded affirmatively increased along with company size.

  • Average response rate: 6.69 (a decrease from 9.89 in 2015)
  • Correlation between company size and response rate: 0.12 (a weaker, albeit positive, correlation than 0.29 in 2015)

3. Workforce Rate

However, when affirmative responses were assessed against the entire company population, identified as utilization rate, we found a considerable decrease in the average number of employees who affirmatively self-identified as having or having had a disability. Much like the participation rate, a negative correlation was found between workforce rate and company size, meaning, as the size of the company increased, the number of employees who affirmatively self-identified decreased.

  • Average workforce rate: 1.89 (a decrease from 2.54 in 2015)
  • Correlation between company size and workforce rate: -0.33 (a stronger correlation than -0.07 in 2015)

As with the workforce rates, applicant rates were also assessed using the same methods.

4. Applicant Participation Rate

Applicant participation rate was measured by the percent of all applicants that completed the voluntary self-identification form. Results showed that as the size of the company increased, the participation rate among applicants decreased.

  • Average applicant participation rate: 62.8
  • Correlation between company size and applicant participation rate: -0.33

5. Applicant Response Rate

Applicant response rate assessed the percent of applicants that responded affirmatively to having or having had a disability out of the applicants that participated. Similar to workforce response rates, this resulted in a positive correlation with company size, meaning, out of the applicants that participated, the rate of those that responded affirmatively increased along with company size.

  • Average applicant response rate: 3.24
  • Correlation between company size and applicant response rate: 0.33

6. Applicant Rate

Finally, this survey assessed the rate of applicants who affirmatively self-identified out of the entire applicant pool. As with the workforce utilization rate, a negative correlation was found between applicant rate and company size.

  • Average applicant rate: 2.48 (an increase from 2.17 in 2015)
  • Correlation between company size and applicant rate: -0.05 (a weaker correlation than -0.16 in 2015)

When comparing self-disclosure rates to an industry benchmark, contractors should consider the method in which they analyze their company data. Here we have identified three potential ways contractors may be looking at their applicant and workforce data, with each providing different results. Specifically, the difference in response rate and workforce rate should be cause for concern. By using a denominator (total workforce versus those that participated in the survey), we see a substantial decrease in self-identification rates, and a reversal in the direction of the correlation. Each method provides a different picture of the data, with some more favorable than others.

Although the sample was relatively small, a number of industries were represented, such as banking, education, healthcare, and manufacturing, to name a few, as well as company sizes, which consisted of  ranges of 0-499 to over 50,000. Full survey results can be found here.

There were several comments in the survey that address challenges that employers are encountering with the self-identification invitation, such as:

  • Lower participation rates for employees without email access.
  • Employees don’t feel comfortable self-disclosing disability status.
  • Some employees who may meet the definition of having a disability do not consider themselves disabled.
  • Union dislike of the data collection.
  • Individuals sometimes completed the self-identification form as an applicant, but not once they were hired.

Recall that OFCCP is hopeful contractors will aspire for a welcoming environment in which applicants and employees feel comfortable self-disclosing disability status. It is imperative to effectively communicate how this information will be collected and maintained confidentially to appease any fear of information sharing or retaliation. This being said, it is important to communicate support from all levels of the organization, and share resources and information with employees on why this change is occurring.  In addition, consider providing supplemental information on the page before and after the mandated OFCCP form so that employees become more knowledgeable and comfortable with self-identifying. This supplemental page will be an opportunity for contractors to collect employee ID information to annually complete the utilization analysis (i.e., link disability status to job group within a location). Finally, monitoring the participation rates within your company will help you identify whether the workforce is more aware of and comfortable with the data collection.

DCI will continue to seek out opportunities to collect and present self-identification benchmarks to the contractor community.

By Keli Wilson, Principal Consultant, and Bryce Hansell, Associate Consultant at DCI Consulting Group 

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OFCCP has updated the annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark, which is based on 2015 end-of-year data from the Bureau of Labor Statistics (BLS). Effective on March 4, 2016, the Annual National Benchmark is now 6.9% – a slight drop from the previous 7% benchmark. This update was announced on June 15, 2016. However, contractors who implemented the prior year benchmark of 7% before the June 15 announcement may continue using 7%. Going forward, the effective Annual VEVRAA Benchmark date will mirror the BLS report release date. Effective dates for all Annual VEVRAA Benchmarks are available here.

The VEVRAA hiring benchmark is based on the percentage of veterans in the civilian labor force. Contractors should use the result of this comparison when assessing the effectiveness of their veteran outreach and recruitment efforts.

National and state information has also been updated in the VEVRAA Benchmark Database for federal contractors and subcontractors who calculate an individualized hiring benchmark using the five-factor method. This database provides additional information regarding the establishment of hiring benchmarks and easy access to the national and State data that may be needed to establish these benchmarks. For more information about VEVRAA requirements, please visit the DoL website.

By Bryce Hansell, Associate Consultant at DCI Consulting Group

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The 31st Annual Conference for the Society of Industrial and Organizational Psychology (SIOP) was held April 14-16, 2016 in Anaheim, California. This conference brings together members of the I/O community, both practitioners and academics, to discuss areas of research and practice and share information. Many sessions cover topics of interest to the federal contractor community, including employment law, testing, diversity and inclusion, big data, and regulations for individuals with a disability. DCI Consulting Group staff members were well represented in a number of high profile SIOP presentations and also attended a variety of other sessions worth sharing. Notable session summaries and highlights can be found below.

 

Beyond Frequentist Paradigms in Legal Scenarios: Consideration of Bayesian Approaches

High-stakes employment scenarios with legal ramifications historically rely on a frequentist statistical approach that assesses the likelihood of the data assuming a certain state of affairs in the population. This, however, is not the same as the question that is usually of interest, which is to assess the likelihood of a certain state of affairs in the population given the data. This session explored the use of a Bayesian statistical approach, which answers the latter question, across different high-stakes employment scenarios. In each of the presented studies, data were simulated and analyzed, and results between the Bayesian and frequentist approaches compared:

  • David F. Dubin, Ph.D., and Anthony S. Boyce, Ph.D., illustrated the application of Bayesian statistics for identifying selection test cheaters and fakers.
  • Chester Hanvey, Ph.D., applied a Bayesian approach for establishing whether jobs are correctly classified as exempt in wage and hour questions.
  • Kayo Sady, Ph.D., and Samantha Holland, Ph.D., demonstrated the advantages of a Bayesian analysis in compensation scenarios with difficult-to-detect subgroup differences.

In each of the studies, the results suggested the utility of a Bayesian analysis in some specific circumstances. Overall, the presenters agreed that the Bayesian analysis should supplement more traditional frequentist analyses and noted specific issues to consider when designing these analyses. Given the lack of legal precedent and difficulties introducing a new set of statistical interpretations into the courtroom, the takeaway was that the best current value-add for Bayesian approaches is in proactive, non-litigation applications.

 

Contemporary Issues in Occupational Credentialing

The opportunity for credentialing or micro-credentialing is ever increasing, with credentials popping up in many professional fields that previously had none. What it takes to develop and maintain these credentialing exams, however, is something that many people know little about. In this session led by Samantha Holland (DCI), panelists from both private and public sector credentialing programs shared their experiences with issues such as maintaining test security, developing test content, and establishing validation evidence for their exams. Some highlights are noted below:

  • John Weiner, from PSI, noted the many security aspects to consider when administering exams online, a situation that requires additional measures beyond those described by other panelists.
  • Rebecca Fraser, from the Office of Personnel Management, shared her experience using methods beyond practice analysis to establish the content domain for specialized, low sample size domains.
  • Lorin Mueller, from the Federation of State Board of Physical Therapists (FSBPT), discussed the need for clearer boundaries when it comes to regulation of certification boards: the line between what is good for a profession, and what is good for business, can sometimes become blurred.
  • Alex Alonso, from the Society of Human Resource Management (SHRM), provided his experiences of building a certification program from the ground up for his organization’s newly minted HR certification program.

 

A View from the Trenches: EEOC/OFCCP Practitioner Update

DCI’s Joanna Colosimo moderated this panel, featuring DCI’s Mike Aamodt, Michelle Duncan of Jackson Lewis, Eyal Grauer of Starbucks, and David Schmidt of DDI, providing an update on recent regulatory changes, enforcement trends, and other topics related to compliance.

In fiscal year 2015, the OFCCP completed fewer compliance evaluations, but the duration of audits has increased as a result of the revised scheduling letter and more in-depth follow-up requests, particularly related to compensation. The panel also discussed the increase in steering allegations and settlements where whites and/or males were the alleged victims of systemic hiring discrimination.

Dr. Aamodt spoke about two hot topics: the EEOC’s proposed pay data collection tool and the use of criminal background checks for employment decisions. With regard to the EEO-1 pay data collection tool, he highlighted the burden of reporting pay data for 10 EEO-1 categories, 12 pay bands, 7 race/ethnicity categories, and 2 sex categories, as well as some of the limitations of using W-2 data. Additionally, he discussed how difficult it would be for the EEOC to use the resulting data to identify pay issues. For employers using criminal background checks, Dr. Aamodt recommended that contractors adopt narrowly-tailored policies that consider the nature of the offense, the duration of time since the offense, and the nature of the job being sought.

 

Strategically Evaluating Outreach for Individuals with Disabilities and Veterans

This session presented research conducted by DCI’s Kristen Pryor, Rachel Gabbard, and Joanna Colosimo to investigate best practices amongst federal contractors in complying with the 503-VEVRAA formal evaluation of outreach and recruitment obligations. Representatives from 77 federal contractor organizations provided survey feedback on current methods and prospective strategies for evaluation. Results identified strategies such as tracking resource specific metrics on qualified referrals and hires as well as ROI analysis for evaluating the success of outreach efforts. Results also suggest general frustration among federal contractors due to insufficient and ambiguous regulatory guidance on this requirement. The full white paper is available here. In addition, DCI will be conducting follow-up research in the near future to determine if further progress has been made in this area, now that the regulations have been in effect for over two years.

 

No Longer an Afterthought? Reasonable Alternatives and Title VII Litigation

DCI’s Emilee Tison moderated this session where panelists discussed their perspectives and experiences related to identifying and evaluating reasonable alternatives. Panelists included Winfred Arthur, Jr (Texas A&M Univ.), Theodore Hayes (FBI), James Kuthy (Biddle Consulting Group, Inc.), and Ryan O’Leary (PDRI, a CEB Company).

Discussion topics included:

  • The Uniform Guidelines text related to the “reasonable effort” in identifying alternatives with “equal” validity and “lesser” adverse impact
  • Strategies for identifying and considering alternatives, including the impact this will have on two selection goals: validity and diversity
  • The potential impact of recent case law on discussions of reasonable alternatives
    • Lopez v. City of Lawrence, 2014
    • Johnson v. City of Memphis, 2014
    • Documenting a consideration of alternative selection procedures

Panelists ended the session with a few parting words, including:

  • Clearly identify what you are considering an alternative
    • Note that not all alternatives are created equally
    • Put in the effort to identify and document your search for alternatives
    • When documenting alternatives, steer clear of ‘stock language’ by providing justification for your choice(s)

 

Competencies and Content Expertise for I/O Psychology Expert Witnesses

In light of recent developments in case law and updated regulatory guidance, panelists provided competencies and strategies for expert witness testimony, focusing on three main topics: social framework analysis (SFA), new measures for test validation, and wage and hour concerns related to revised FLSA regulations on exempt status employees. Panelists included DCI’s Eric Dunleavy and Arthur Gutman, in addition to Margaret Stockdale of IUPUI, Cristina Banks of Lamorinda Consulting, Caren Goldberg of Bowie State University, and David Ross of Seyfath Shaw.

The goal of SFA as it relates to expert witnesses is to educate the court and jury on the processes underlying cognitive bias and other socially constructed concepts like gender inequality. Panelists cited the 2011 Supreme Court case of Walmart v. Dukes as a prime example of applying SFA methodology to diagnose discrimination in personnel practices. Although SFA has been met with some criticism, it can be said that there is a certain degree of subjectivity in many employment processes that have the potential to lead to discrimination. For this reason, experts are encouraged to look at seemingly neutral factors that may have a disproportionate impact on members of a protected group.

Shifting focus to standards regarding test validation, panelists commented on the outdated nature of the Uniform Guidelines on Employee Selection Procedures (UGESP), which have not been updated in nearly 40 years.  Although the panel was not aware of any initiatives to update the guidelines, it was noted that several SIOP representatives have met with the Equal Employment Opportunity Commission (EEOC) regarding the guidelines and other topics of mutual interest. Panelists also advised the audience to rely on both the SIOP Principles and APA Standards as supplemental, more contemporary resources regarding test validation standards. Additionally, SIOP will be publishing a white paper on minimum qualifications and adverse impact analyses that addresses data aggregation concerns and other testing considerations.

The final topic discussed focused on wage and hour issues concerning the revised FLSA regulations. The panel discussed the difficulties that many employers face in accurately classifying jobs as exempt or non-exempt, and also when determining whether independent contractors should be considered employees. It was recommended that job analyses be done for individual positions, rather than general ones, to help determine exempt status and how much time is spent doing each type of work. Employers should also be aware of any differences regarding state law.

 

Opening the “Black Box”: Legal Implications of Big Data Algorithms

The subject of “big data” has become a hot topic as access to increasingly large amounts of data provides employers with new opportunities to make informed decisions related to recruitment, selection, retention, and other personnel decisions. However, “data scientists” often overlook the legal implications of using big data algorithms within an employment context, especially when it comes to employee selection. Panelists discussed several issues emerging from the use of big data algorithms, including the potential for discrimination, Title VII consequences, and strategies for mitigating risk.

As suggested by DCI’s Eric Dunleavy, many of the “big data” models really do not differ from empirically keyed biodata, which is not a new concept. What is new are methods of collecting larger amounts of data from new sources. Like empirically keyed biodata, big data can be very effective in predicting work-related outcomes. However, if the employer cannot explain how the algorithm works or illustrate that it is job-related, it may be difficult to justify use of the algorithm if facing a legal challenge.

In addition to traditional adverse impact concerns related to women and minorities, some big data techniques may have the potential to discriminate against other protected groups. For example, one panelist mentioned a computer program that can automatically score an applicant’s body movements and analyze vocal attributes from a video recording of an interview. Several other panelists noted that certain body movements or vocal attributes may be related to protected class status, in particular individuals with disabilities. The main takeaway here is that if an employer is using data algorithms, it is imperative that they not only validate the model, but also understand how it is making decisions.

 

Big Data Analytics and Employment Decisions: Opportunities and Challenges

In this session, speakers highlighted the increasing popularity of the use of big data techniques (e.g., machine learning) within organizations to predict work outcomes , pointing out both benefits and challenges inherent to these approaches.

As one example of a big data “win”, Facebook’s David Morgan described how data collected on the current workforce can be used to identify employees at risk of turnover. More caution is required, however, when using big data to inform selection decisions. Many big data algorithms are essentially “black boxes”: data goes in and results come out with little transparency of the how or the why. Not being able to explain the “why” makes these approaches very difficult to defend in court. Rich Tonowski, representing the EEOC, advised that companies be knowledgeable and comfortable with the process being used as the agency will obtain access to the algorithm. Similarly, companies should be able to explain how the information being used is job-related, especially when data have been mined from social media or other Internet sources.

A final caveat was that machine learning tools may use data that is correlated with protected-class status in some way.  Dave Schmitt of DDI suggested one way to test for this is to determine if the model can predict the race or sex of applicants. If so, then it may be subterfuge for discrimination. This may be especially compounded by the “digital divide,” where minorities may be less likely to have regular access to the Internet due to lower socio-economic status.

 

Applied Criterion-Related Validation Challenges: What We Weren’t Taught in Textbooks

This panel, which included DCI’s Art Gutman, discussed a variety of challenges faced when working to conduct criterion-related validation studies for client organizations. Challenges included study design issues, data collection problems, determinations regarding appropriate analysis, and meeting reporting requirements. Specifically, presenters discussed the criteria problem (obtaining appropriate and accurate measures of job performance), problems with predicting low base rate events, issues of range restriction and the appropriateness of applying corrections, among others. The panelists hypothesized that upcoming issues in criterion validation will include dealing with big data (“messy predictors”), processes for validating non-psychometric assessments, addressing validity equivalence (or lack thereof) in multi-platform or mobile assessments, and the eventuality of court cases evaluating validity generalization.

 

Implications of Revisions to FLSA Exemptions for Organizations and Employees

In this session, a panel of experts provided insights on the proposed changes to the FLSA exemption criteria.  The panel discussed the salary test for exemption, which would increase from $455 a week to the 40th percentile of weekly earnings for full-time salaried workers (estimated at $970 for 2016) and the implied potential changes to the job duties test. Regarding the salary test, panelists agreed that a change is overdue. However, they argued that a phased approach would be more appropriate and that the regulation should not be set at a dollar value, but instead aligned to a value that will allow it to stay in line with inflation. The NPRM’s discussion of the job duties test did not propose a change, but asked for feedback on whether a quantitative threshold, like the 50% “primarily engaged” test in California, should be implemented. The DOL estimated that approximately 20% of exempt employees would be impacted by the salary changes alone. Implications for employers are staggering, especially in light of the potential for a 60 day implementation window. First, employers must assess the extent to which they are comfortable with their exempt/nonexempt classifications and reasoning and plan to re-evaluate where needed. Second, budgeting and cost scenarios for moving exempt positions to non-exempt, realigning duties, or increasing pay should be evaluated. Finally, internal messaging and communication plans should be in place to outline the changes, reasoning, and any new procedures.

 

Novel Approaches for Enhancing Diversity Training Effectiveness in the Workplace

In this session, four different presenters provided insights on diversity training. Three presented information from academic research, and one presenter provided information from an organization context. A full 67% of organizations provide some form of diversity training, though research into the impact of that training on the job is varied. One series of studies found that individuals who are high in social dominance orientation (e.g., high preference for hierarchy in a social system and dominance over lower-status groups) tend to be more resistant to diversity training, but that this resistance can be mitigated when the training is endorsed by an executive leader. Another series of studies found that men are more likely to place importance on gender issues addressed when those issues are put forth by other men, and that this holds in both written context and in-person contexts. A Google employee presented on the training Google has implemented as part of new hire on-boarding on implicit or unconscious biases. The training focuses first on increasing awareness and understanding of the topic, to provide a common language, and initial suggestions for mitigation. Follow-up training has focused more on role playing type scenarios to cement the behavior change and mitigation aspect, increasing employee comfort level with calling out biases when and where they are observed.

 

Why Survey Data Fail – and What to Do About it

Panelists discussed their experiences conducting surveys, times when things went wrong, and recommendations for a successful survey. Anyone can use and develop a survey, but issues can arise when multiple stakeholders are involved, each with a different opinion. For this reason, it is important to communicate the purpose of the survey and how the results will be used. Branding can be beneficial to help develop awareness, generate interest, and increase participation. Positive changes implemented based on survey results can also lead to increased participation the following year. Additionally, it is important to research any null or opposite findings between survey iterations to give you a better understanding of any issues that may be present within your organization.

Panelists also addressed problems they have encountered when implementing results, including trying to do too much with the findings, or slicing the data so many ways that your results become less reliable. It was also emphasized that results should be presented in a way that leaves little room for subjective interpretation to avoid making conclusions that are not supported by the data.

Finally, the panel provided a few recommendations for a successful survey:

  • Make responding easy
  • Get people excited about data by telling a good story
  • Provide insights and summaries when reporting results
  • Make an effort to understand your audience in order to keep participants engaged year after year

 

Can Technology Like Deep Learning Eliminate Adverse Impact Forever?

This debate-style session posed the question of whether or not big data techniques (specifically deep learning or machine learning) could/should be used to eliminate adverse impact during selection. The panel included data scientists and I/O psychologists to present their perspectives. The I/O psychologists opposing this technique – including DCI’s Emilee Tison – presented the following high-level points:

  • The identification of adverse impact alone is not synonymous with illegal discrimination
    • The blind elimination of it may eliminate meaningful differences that exist due to legitimate job-related factors – impacting the validity of the selection procedure
    • Adverse impact is the prima facie standard for a disparate impact case; however, procedures that produce adverse impact have two additional considerations:
      • The job relatedness or business necessity of the procedure
      • The consideration of reasonable alternatives
  • Making selection decisions based on protected class status is illegal according to the CRA 91 and, as supported in recent case law, selection decisions should not be based on adverse impact alone (Ricci v. DeStefano, 2009)
  • Data scraping techniques – that learn and pull in factors to use in predicting important outcomes (such as information from Facebook) – call into question the job-relatedness of the selection procedure

In summary, the panelists came from very different perspectives and foundational knowledge bases; however, it was the start of what hopefully becomes meaningful cross-discipline dialogue.

 

 

By: Kayo Sady, Senior Consultant; Samantha Holland, Consultant; Brittany Dian, Associate Consultant; Dave Sharrer, Consultant; Kristen Pryor, Consultant; Rachel Gabbard, Associate Consultant; Joanna Colosimo, Senior Consultant; Emilee Tison, Senior Consultant; and Bryce Hansell, Associate Consultant at DCI Consulting Group 

 

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On March 16, 2016, the EEOC held a public hearing on its proposed revisions to the Employee Information Report (EEO-1). The hearing opened with statements from each of the EEOC commissioners.  Following the EEOC opening statements, OFCCP Director, Patricia Shiu, and OFCCP’s Director of Policy and Program Development, Debra Carr, provided testimony on the collaboration between the agencies in preparing this proposal, and how the proposed revisions to the EEO-1 will serve the purposes of the OFCCP’s previously proposed Equal Pay Report, without a separate reporting requirement.

The hearing then proceeded to move through three separate panels of five individuals each. Each panel began with a brief introduction and summary of their written testimony, which was provided in advance of the hearing and is available online. EEOC commissioners then took turns asking questions.

The invited panelists were almost evenly split between those strongly in favor of the proposed EEO-1 revisions (e.g., the NAACP, the US Women’s Chamber of Commerce, and academic researchers) and those with significant reservations (e.g., National Federation of Independent Business, SHRM, EEAC and US Chamber of Commerce). The reservations can be bucketed into four broad categories: issues with the EEOC’s burden estimate, issues with the type of data being collected, issues with the proposed use of the data, and confidentiality concerns.

As mentioned above, panelists voiced concerns to the EEOC commissioners about the burden, especially as it pertains to small employers (e.g., 101 employees). The EEOC commissioners seemed particularly open to considering calendar year reporting, to reduce the burden of pulling W-2 data off-cycle. Regarding the type of data being collected, some panelists suggested that annualized base pay would be a better type of data to use, as it would both reduce the burden of pulling data from multiple systems and decrease the error that may be introduced based on time in company with W-2 data (i.e., if two employees make the exact same salary, but one started 2 months before the pull date and the other started 10 months before the pull date, they would be erroneously reported in different pay bands using W-2 earnings, but not so using annualized base pay).

DCI predicts this proposal will move forward and the EEOC will likely try to make this final by September. It seems increasingly likely that they may be willing to move to a calendar year reporting for EEO-1 reports to reduce burden, but it is still unclear how many of the other alternatives proposed in comments will be applied. Remember, the EARLIEST this requirement would become effective is September, 2017. Stay tuned!

By Kristen Pryor, Consultant, and Bryce Hansell, Associate Consultant at DCI Consulting Group 

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The application and approval process for entering into a Functional Affirmative Action Program (FAAP) agreement with the OFCCP is outlined in Directive 305 (renumbered to 2013-01), which became effective on December 17, 2012.

The OFCCP is currently seeking approval from the Office of Management and Budget (OMB) for its information collection request (ICR) revision titled, “Agreement Approval Process for Use of Functional Affirmative Action Programs.” As discussed in the Federal Register, this ICR “addresses the collection of information associated with the process for obtaining, modifying, updating, and renewing an agreement that allows contractors to develop and use functional AAPs.” The OFCCP has requested an increase in reporting burden from 7.6 hours per contractor (926 total) to 9.5 hours per contractor (1,427 total), which reflects the replacement of the renewal process with a certification requirement. Additionally, contractors seeking a new FAAP agreement will no longer be required to provide a copy of their Federal contract for approval.

The previously approved ICR expired on December 31, 2015; however, the expiration date is extended monthly (currently, to March 31, 2016) while OMB conducts the review and approval process for the revision. OMB has received and is considering all written comments regarding the ICR revision that were submitted by February 8, 2016. It is noted in the supporting statement from the OFCCP that there are currently 82 contractors with a FAAP agreement, covering more than 1,900 functional units. Based on trends in prior years, the OFCCP has estimated that there are approximately 10 new requests each year for FAAP agreements. Until OMB completes its review of the FAAP ICR, contractors are encouraged to continue communicating with the OFCCP regarding any updates, modifications, or renewals made to active FAAP agreements.

By Bryce Hansell, HR Analyst and Keli Wilson, Principal Consultant at DCI Consulting Group 

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Last spring, DCI surveyed Federal contractors to assess participation rates regarding the revised Section 503 regulations (2015 results). The majority of contractors have likely reached a year of full compliance and implementation under the revised regulations. Given this, DCI has decided to re-survey the contractor community in hopes of gathering more robust self-identification benchmarks.

Under these regulations, Federal contractors are now collecting voluntary self-identifications of disability status from employees and applicants and including these figures in their affirmative action plans. Self-identification is voluntary, so contractors may not compel employees or applicants to complete and turn in the form. Therefore, 100% participation of employees or applicants in the voluntary invitation is not likely.

Based on this information, DCI clients have raised concerns about low participation rates in this voluntary invitation and the impact that this will have on the disability goals and other analytics.  Therefore, we have put together a short survey for Federal contractors to share their self-identification participation rates to establish an industry benchmark for contractor awareness. Your participation in this survey is strongly encouraged. All information gathered from this survey will be kept anonymous, and results will be shared only in the aggregate.

Please answer these questions as they relate to the entire company and not individual establishments. Even if you participated last year, we encourage you to participate again, as we will be analyzing a new data set and sharing the results.

SURVEY

By Bryce Hansell, HR Analyst and Keli Wilson, Principal Consultant at DCI Consulting Group 

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The OFCCP Institute (“The Institute”) recently submitted comments in response to OFCCP’s Proposed Renewal of Information Collection Requirements, published on October 29, 2015, which describes proposed changes to the Scheduling Letter and Itemized Listing. The Institute’s comments highlighted two major grievances with the proposed changes:

1. The OFCCP should clarify its intentions and authority to share information amongst other agencies and the public

Citing 41 CFR § 60-1.20(g) and the Freedom of Information Act, as amended, 5 U.S.C. § 552 (2009), OFCCP has added language to the end of the Scheduling Letter stating they “may share such information with other federal government agencies to promote interagency coordination and collaboration,” and “the public may seek disclosure of the information you provide during a compliance evaluation.” There is a concern that the proposed language seeks to expand OFCCP’s ability to share and disclose information without appropriate legal authority. The Institute requested that OFCCP provide clarification on whether they intend to share information more broadly with other federal agencies, in addition to the EEOC and DOJ.

2. The OFCCP should remove the additional requirements included in the itemized listing to provide data every six months because it is not consistent with the requirements under Section 503 and VEVRAA  to provide annual data

Itemized Listing items 9 and 10 under Section 503, and Items 13 and 14 under VEVRAA require federal contractors, who are six months or more into their current plan year, to collect and analyze six months’ worth of update data in addition to data for the immediately preceding AAP year.  Analyzing an additional six months’ worth of data goes beyond what is outlined in the regulations, which require contractors to collect and analyze data on an annual basis. Further, this collection and analysis was not factored into the burden estimates of the regulations or in the revised Itemized Listing. In order to remain consistent with the regulations, the Institute recommended that OFCCP revise Items 9, 10, 13 and 14 to remove the additional requirements.

Click here for the full submission of comments by the OFCCP Institute.

By Bryce Hansell, HR Analyst and Jeff Henderson, Associate Consultant at DCI Consulting Group

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The 33rd Annual Conference for the National Industry Liaison Group was held July 28-31, 2015 in New York City and brought together members of the federal contractor community, government officials, and EEO/affirmative action practitioners. The conference was particularly memorable as this year is the 50th anniversary of Executive Order 11246 – an important marker in furthering the goal of equality in the American workplace.

DCI Consulting Group (DCI) staff members were involved in a number of NILG presentations and attended a variety of sessions. Session summaries and highlights can be found below.

  1. OFCCP Keynote Address
  2. EEOC Keynote Address
  3. Self Auditing your Applicant Screening & Tracking Processes to Ensure Compliance & Implementing Outreach & Accommodation Trackers
  4. Big Data Analytics and HR Technology: Meeting Emerging Challenges in Sourcing and Selection
  5. Pepsi ACT – Achieving Change Together: PepsiCo’s Disability and Inclusion Initiative
  6. Navigating the New Frontier of Steering Claims
  7. Compliance Strategies for a New Era of Compensation
  8. Recruiting – Social Media & Technology
  9. Self-Identification
  10. From Base comp to total comp & everything in between
  11. Outreach – Individuals with Disabilities: Innovative Strategies for Enterprise-Wide Disability Inclusion & 503 Compliance
  12. Outreach – Individuals with Disabilities/Veterans: Successful Assessment of Veteran & Disability Outreach
  13. Stepping into the Unconscious Mind. Understanding Implicit Bias and Job Steering Decisions, Analysis, and Prevention.
  14. Update on Contemporary OFCCP Enforcement: A View from 2014 Settlement Data
  15. Legal Experts Panel
OFCCP Keynote Address

The Director of OFCCP, Patricia Shiu, provided OFCCP’s keynote address. Given the historic year, it was not surprising that her speech opened with reference to the passing of Executive Order 11246 and briefly chronicled important events leading to that significant moment. Director Shiu also made mention of another significant moment in history, one that happened this year, in which two new groups were added to the list of protected bases under EO 11246: sexual orientation and gender identity. Other themes included relationship building and “making inclusion a reality.” Before concluding the keynote address, Director Shiu accepted, on behalf of OFCCP, a commemorative plaque for the 50th anniversary of EO 11246.

EEOC Keynote Address

Charlotte Burrows, Commissioner of the Equal Employment Opportunity Commission, delivered the EEOC Keynote Address, where she mentioned that 2015 is a year of celebration, with both the 25th anniversary of the Americans with Disabilities Act and the 50th anniversary of the EEOC, but also said that there is a long way to go with regard to equal pay and LGBT rights.

Commissioner Burrows stated that equal opportunity and equal pay are not only important for compliance, but are actually in a contractor’s best interest as they lead to the best outcomes for both the contractor and its employees. Additionally, as the U.S. is becoming more diverse and more business is conducted in global markets, companies with a diverse workforce will be better suited to recruit and retain talented employees. She offered three proactive strategies to address pay equity:

  1. Make it clear throughout your organization that pay equity is a priority with support from the top.
  2. Conduct statistical analyses of pay and, if you find problems, fix them.
  3. Allow employees to discuss pay with coworkers.

She also spoke about claims related to sexual orientation, where she warned contractors that often the initial allegation turns out to not be an issue, but the company’s response to the allegation may lead to a retaliation or intimidation claim. Before concluding the keynote address, Commissioner Burrows accepted, on behalf of EEOC, a commemorative plaque for the 50th anniversary of the agency.

Self-Auditing your Applicant Screening & Tracking Processes to Ensure Compliance & Implementing Outreach & Accommodation Trackers

This session, presented by Valerie Hoffman of Seyfarth Shaw, LLP, discussed ways to assess your own applicant screening and tracking processes in efforts to identify and prevent discriminatory selection practices. Several tools were identified to ensure consistency in the applicant screening process, including:

  • Articulated competencies resulting from a thorough job analysis
  • Use of standard, structured interview questions embedded in the applicant tracking system
  • Use of validated tests (within the last 5 years or after changes in job occurred)
  • Training of those conducting interviews or administering tests

In self-auditing your applicant screening and tracking process, it is important to focus your efforts on several key areas that can minimize the potential for adverse impact:

  • If using an external source to list your jobs with ESDS, conduct an annual audit to ensure all relevant jobs are listed, including states where electronic listing is not available.
  • Ensure basic qualifications and any special physical or mental requirements are listed in the requisition posting for jobs that require them.
  • Post a unique job requisition for each opening or, if requisitions are not unique, ensure there is a system for identifying each opening and tracking applicants who were considered.
  • Close all requisitions at least once each AAP year to limit risk and the size of the pool to be analyzed for adverse impact.
  • Minimize or eliminate the use of general position requisitions.
  • If candidates who have not applied for a particular opening are considered, ensure they are transferred into the ATS to the job for which they are considered.
  • When using Job Boards, LinkedIn, Facebook, Google or other search sites, ensure that candidates are forwarded to your Careers website so that they are screened within the ATS once they have indicated interest in employment.
  • Ensure that external recruiters (i.e., staffing firms) are maintaining applicant tracking for jobs for which they act as your screening agent. For example, administering compliant self-identification methods including disability self-identification according to OFCCP’s specific format requirements.
  • Maintain all paper applications, including those who do not have basic qualifications for the position because the definition of applicant may be broader than OFCCP’s Internet applicant definition.
Big Data Analytics and HR Technology: Meeting Emerging Challenges in Sourcing and Selection

In a panel moderated by Jon Geier of Paul Hastings, LLC, panelists discussed how “big data” has affected use of the Internet applicant rule and human resources technology, tools, and practices. Presenters on the panel included: Heather Morgan of Paul Hastings, LLP, Nathaniel Glasser of Epstein Becker Green, Rick Holt of Resolution Economics, and Kathleen Lundquist of APTMetrics.

Panelists discussed the changing definition of “big data” from the sole use of the phrase in referring to data in terms of velocity, volume, and variety, to the more recent use of the phrase in referring to methods and tools. The focus of the majority of the panel was on challenges and concerns with the use of big data in employment. Such concerns included:

  • Creation of predictive algorithms without a set of criteria based in theory.
  • Data issues, such as statistical inaccuracies due to noise accumulation.
  • Appropriate application of the Internet Applicant Rule in record-keeping obligations and data management techniques.

The panel closed with a list of suggested questions for contractors to ask of assessment vendors. These questions were:

  • Has the process demonstrated adverse impact?
  • What validation evidence has been collected to establish the job relatedness of the algorithm? Evidence collected for each job?
  • Does the validation evidence comply with the requirements of UGESP? Get a copy of the validation study.
  • What steps have been taken to ensure the security of test questions?
  • What kind of ongoing monitoring do you provide as we continue using the instrument?
Pepsi ACT – Achieving Change Together: PepsiCo’s Disability and Inclusion Initiative

Included under the general theme of “Individuals with Disabilities and Veterans Strategy/Talent Management”, this session focused specifically on Pepsi’s major initiative to increase the hiring and retention of these groups. The initiative is known as the Pepsi ACT (Achieving Change Together). Pepsi ACT was first piloted in 2014 and has continued to expand in 2015. Panelists included a representative from Pepsi, as well as representatives from their partners in ACT: Ability Beyond and the Nevada State Rehabilitation Division. Pepsi ACT is largely focused on partnering with local organizations to find talent and then providing a track for applicants to train for the application process in order to increase their success in applying for the position (and remaining employed). Training includes “soft” courses like interview skills and retention skills (e.g., practicing scenarios), as well as “hard” skills like on the job training for position(s).

To begin this initiative, panelists stressed that the first step involved branding. Before starting PepsiCo needed to figure out what their goal was, how to communicate that internally and externally, and ultimately create their brand. To begin the Pepsi Act program, two test sites were selected in order to pilot their initiative. Panelists advised this should not be seen as a human resources or compliance initiative and not approached as a charitable action because it won’t stick long term (i.e., it will be the first program to be cut when budgets are tough). Also, it is important to imbed this process in the culture in order for it to last; otherwise, once your champion leaves the organization it may not last. They recommended having operations managers “lead the charge” locally. Much of the initiative is education. It was important to educate sites, employees, managers, and applicants that this initiative was not creating new or special roles, but rather a different track to get at the same job(s).

Several other tips for a successful initiative included:

  • Create videos to share success stories from test sites to educate other sites about the initiative.
  • Leverage social media to communicate brand and initiatives.
  • Utilize display boards to communicate with front line workers who may not routinely access the intranet or other sites.
  • Partner with ATS and HR personnel to streamline the data aspect.
  • Internal training for managers and other employees.
  • Host open houses for the community organization with whom you are partnering or would like to partner with. Bringing these representatives onsite to learn about the jobs and facility, as well as your initiatives, will help to bridge the gap and find candidates.
  • Lastly, panelists reminded the audience that nothing happens as fast as you would hope and it is important to remember when getting a new initiative off the ground.
Navigating the New Frontier of Steering Claims

Steering remains a hot compliance topic, as OFCCP continues to direct compliance officers to look for and investigate steering claims during compliance reviews. We have written extensively on the issue of steering, which is defined as the policy or practice of guiding applicants or employees towards or away from certain jobs based on protected characteristics. It is an OFFCP focus given its relationship to hiring, promotional, termination, and compensation practices.

In this session, panelists including Christine Hendrickson and Michelle Mellinger (Seyfarth Shaw LLP), Michael DuMond (Economists Inc.), and Rob Speakman (Welch Consulting), reviewed several “steering” cases that are familiar to regular readers of our blog. Using the cases as a framework, the panelists presented several fictional case studies to highlight common fact patterns in steering cases and to underscore the importance of proactively assessing workforce data and practices for such patterns. A preliminary analysis involves an evaluation of specific data areas:

  • Hiring patterns
  • Workforce Analysis
  • Incumbency to Availability Analysis
  • Compensation
  • Promotional opportunities

An important take away from the panel was a reminder of the distinction between correlation and causation. Simply because two variables are correlated (e.g., sex category tends to be correlated with job title, such that a higher proportion of men are in Title 1 versus a higher proportion of women in Title 2) does not mean that one variable is causing the other (i.e., sex status is not necessarily the reason for the proportion patterns across the two jobs). The “steering” cases that OFCCP settled make it clear that OFCCP infers causation on the basis of statistically significant disparities. Thus, it is imperative for contractors to have robust practices for selection, placement, and promotion to defend against steering claims. The more formalized and structured the processes, the better contractors can point to applicant choice and job fit as the reason for individuals being placed into the positions they are placed into.

Panelists presented a number of key takeaways for reducing the likelihood of steering allegations:

  • Remember the distinction between correlation and causality – correlation does not imply causality.
  • Require applicants and employees to unilaterally choose jobs or career paths for themselves, offering no guidance on those decisions.
  • Keep job postings open to everyone.
  • Use a requisition system that does not “co-mingle” levels or shifts.
  • Reject applicants that apply generally for “any” or “all” positions.
  • Prevent movement of applicants between requisitions.
  • Maintain documentation to support defense that individuals are not interested in or qualified for higher paying positions.
  • Ensure a competitive promotion process.
  • Use and enforce a written, neutral procedure when placing employees in assignments.
  • Set pay by legitimate, non-discriminatory factors.
  • Self-monitor your pay and placements.
Compliance Strategies for a New Era of Compensation

DCI’s Joanna Colosimo presented with Dean Sparlin of Sparlin Law Office, Dr. Rick Holt, and Elizabeth Bradley of Fortney Scott. The panel discussion focused on the pros and cons of conducting a proactive compensation analysis, methodologies that are useful for contractors, and considerations for contractors conducting proactive compensation self-audits. Themes from the session included:

  • A primer on OFCCP strengthened enforcement and regulatory activity regarding compensation. This included an overview of Directive 307, the proposed Equal Pay Report, Pay Transparency, and the Revised Scheduling letter data points.
  • Discussion of the legal requirements related to a proactive compensation analysis. The panel discussed when and why contractors should be conducting proactive pay analytics.
  • Appropriate units of analysis. The panelists discussed the merits of conducting analytics by job title or other pay groupings, such as salary grade, that would be meaningful to a contractor. There was some discussion on the merits of proactively examining AAP job group as the pay group in the proactive compensation analysis to mirror what OFCCP may do during an audit, in addition to critically evaluating the job group structure in the Affirmative Action plans. However, most panelists concurred that the best unit of analysis is one that mirrored the contractors’ pay practices.
  • Types of pay being analyzed in OFCCP audits. This included a noted trend of total compensation (which may not be an appropriate pay outcome from a methodology perspective), incentive pay, bonus pay, and base pay.
  • The importance of conducting pay analyses under attorney-client privilege.
  • Practical considerations. This included a discussion of how merit variables such as education and prior experience are stored in HRIS systems, as well as what data points OFCCP is expecting to see during an audit submission. Typically OFCCP is expecting to see all items outlined in the scheduling letter, yet, practically, not all data points are easily accessible to contractors.
  • Preparing contractors for OFCCP audits. The panel discussed that experts are often seeing the use of a compensation interview during the course of an audit. Specifically, contractors are being asked to have the individual in charge for establishing compensation at an organization to be interviewed by telephone early during the desk audit stage.
Recruiting – Social Media & Technology

During this session, panelists discussed ways federal contractors can successfully leverage social media, to identify and engage prospective candidates, while remaining in compliance with Equal Opportunity and Affirmative Action regulations. Although social media can serve as a great source for identifying passive candidates, much attention has to be given to complying with recordkeeping guidelines and ensuring the identification of who is deemed an applicant.

A consistent message echoed throughout the discussion was regarding the development and implementation of social media sourcing guidelines. Panelists shared that this can ensure recruiting professionals are aware of what needs to be done in order to stay in compliance, specifically with the Internet applicant rule. In establishing social media guidelines, some advice included:

  1. Guidelines should clearly define “expression of interest” (e.g., only applicants who come through the ATS),
  2. define when candidates are considered (e.g., only when there is an open position),
  3. describe how recruiters communicate with individuals (e.g., scripted email that invites a prospective applicant to review a link tied to an open position), and
  4. describe how to manage relationships with passive candidates (e.g., creating a talent community).
Self-Identification

“A Proven Roadmap to Progress Toward 7% Self-Identification and Disclosure Objectives and Practical Solutions to Address Challenges Along the Way”

In a panel moderated by Katherine McCary, president of C5 Consulting, panelists discussed best practices for encouraging increased self-identification rates for individuals with a disability with the goal of meeting the 7% employment objective. Through the lens of each of their companies, panelists shared what organizations can do to increase self-identification, with the caveat that additional time is required to have robust evidence of their company’s program successes.

Katherine discussed various obstacles to self-identification; such as individuals being stigmatized or discriminated against, not seeing any personal gain, and not realizing they have a disability. While data typically best illustrates the makeup of a workforce, understanding unique disabilities helps contractors make progress toward a culture of inclusion. Communicating how the information will be used and that it will be kept confidential is key.

Bob Vetere of Northrop Grumman opened by speaking of the need to create a culture of diversity rather than an isolated campaign for self-identification, with the understanding that you may never reach the 7% utilization, though important to work toward. Among Bob’s recommendations were the suggestions of utilizing a welcoming statement on contractors’ websites, creating an engaging environment, and providing a self-service portal for accepting and handling requests for accommodation. Lori Kirsch of Florida Blue further focused on the need for cultural development through open discussion of leadership support, compliance standards, and cultural goals within the organization. Additionally, Lori shared that Florida Blue utilizes a dedicated recruiter to act as a liaison for individuals with a disability.

Marina Williams of Lockheed Martin emphasized the need for contractors to tap into their existing internal resources to best develop and celebrate a culture of diversity. Specifically, Marina suggested early and regular communications across the organization and to leverage existing communications and branding, as well as continuing development through communication and celebration of milestones and achievements. Jodi Woundy of Merck & Co., Inc. followed with a sample from the video series the organization has developed to engage their workforce in the self-identification process. Jodi suggested that pairing the videos with communications sponsored by senior leaders conveys to employees the importance the company places on employing and supporting individuals with a disability.

From Base Comp to Total Comp & Everything In Between 

During this session, Mickey Silberman from Jackson Lewis P.C. discussed compensation as it relates to OFCCP’s new tools and new rules and provided guidance and best practices for federal contractors and subcontractors. With the release of Directive 307 and the new scheduling letter and item 19, contractors must shift their focus to clearly understand their compensation systems. He explained that compensation is one of the President’s top EEO enforcement priorities and the agencies are getting the “tools” needed to uncover and eliminate pay discrimination. More specifically, two of the tools coming soon are the Equal Pay Report and the proposed “Pay Transparency” Rule. The Equal Pay report would require contractors to submit company-wide compensation data on an annual basis and the Pay Transparency rule would prohibit discrimination and retaliation against applicants and employees who discuss pay. Below are some key takeaways contractors can follow to prepare:

  • Review existing policies to ensure there are no restrictions regarding pay information.
  • Identify variables/factors that affect pay and be ready to provide an explanation for each.
  • Increase budgets for system changes and new requirements.
  • Review current systems that store variables/factors related to pay and develop a plan to combine data (e.g., performance scores, education, salary, etc.).Conduct privileged pay analyses and focus on base and total comp.
  • Identify and train all personnel involved in pay (e.g., Hiring manager, Talent manager, Supervisors, etc.).
Outreach – Individuals with Disabilities: Innovative Strategies for Enterprise-Wide Disability Inclusion & 503 Compliance

Speakers from the US Business Leadership Network (USBLN) discussed tools available to aid in evaluating a contractor’s extent of 503 compliance and disability inclusion, as well as some tips gleaned from contractors. Tips of note included the need for executive leadership team support for disability inclusion initiatives and utilizing cross-function teams to implement those initiatives. Leading organizations establish a disability employee resource group and centralize the accommodation process so that direct managers don’t have budget pressure for those requests. Regarding self-identification initiatives, using email alone to inform employees about the purpose of the survey was not as effective as:

  1. implementing a full campaign utilizing different media (i.e., videos, posters, voicemails),
  2. explaining why it is important for employees to participate (i.e., anyone could become someone with a disability – what kind of company do you want to be working for if it does/did happen to you),
  3. explaining how the results are confidentially maintained,
  4. including top executives or other employees willing to speak about their decision to participate, and
  5. training managers to be able to respond to employee questions about the survey is recommended.
Outreach – Individuals with Disabilities/Veterans: Successful Assessment of Veteran & Disability Outreach

This session focused on strategies for improving outreach and recruitment of disability and veteran populations, as opposed to assessment. Key takeaways on veteran outreach and recruitment included the recommendation that organizations internally evaluate the purpose for seeking to recruit veterans and be able to articulate that purpose. In addition, it was recommended that contractors enlist the assistance of employees who are veterans, where possible, to aid in providing insight to the veteran population and educate executives and hiring managers on this population. It was emphasized that the entire employee life cycle should be evaluated. This means identifying barriers in the recruiting systems and in the workplace and also educating the workforce, creating support for inclusion, and working to build brand recognition with disabled consumers who are a loyal consumer base. When asked about the assessment piece of compliance, the speakers pointed to tools being used to track outreach and recruitment efforts, including philanthropic donations, but did not include specific methods for evaluating the effectiveness of individual efforts.

Stepping into the Unconscious Mind. Understanding Implicit Bias and Job Steering Decisions, Analysis, and Prevention.

A legitimate steering claim would be one in which individuals are placed into particular organizational positions based on nothing more than protected group status. In this session, Julia Mendez (PeopleFluent), Charles Mullin (ERS Group), and Anna Nesterenko (ERS Group) provided an overview of bias and stereotype theory and research, which is the basis of OFCCP’s steering claims.

Presenters defined bias as “a subjective preference toward a particular viewpoint or belief that prevents a person from maintaining objectivity.” Unconscious bias (i.e., those subjective beliefs of which one may not be acutely aware) is distinguished from conscious prejudice and discrimination in which preferences or are known to and acknowledged by the individual who holds the beliefs. An example of unconscious bias that has been demonstrated and replicated in empirical research is that certain jobs tend to be associated with certain sex categories by many people (e.g., many individuals tend to think of men when they consider the job of Electrician). Similar examples may be found for race. As such, to the extent that sufficient guardrails are missing to protect against the influence of implicit bias in recruiting, selection, and placement, such processes may be vulnerable to discriminatory decisions and OFCCP challenge.

The presenters offered ten previously published strategies for combating unconscious bias in the workplace:

  1. Recognize that as human beings, our brains make mistakes without us even knowing it.
  2. Reframe the conversation to focus on fair treatment and respect, and away from discrimination and “protected classes”.
  3. Ensure that anonymous employee surveys are conducted company-wide to first understand what specific issues of hidden bias and unfairness might exist at the workplace.
  4. Conduct anonymous surveys with former employees to understand what issues they faced.
  5. Offer customized training based on survey results.
  6. Offer an anonymous, 3rd party complaint channel.
  7. Initiate a resume study within your industry, company and/or department to see whether resumes with roughly equivalent education and experience are weighted equally, when the names are obviously gender or race or culturally distinct.
  8. Launch a resume study within your company and/or department to reassign points based on earned accomplishments vs. birth traits.
  9. Support projects that encourage positive images of persons of color, LGBT and women.
  10. Identify, support and collaborate with effective programs that increase diversity.
Update on Contemporary OFCCP Enforcement: A View from 2014 Settlement Data

In this strategic leadership session, DCI’s David Cohen presented on OFCCP enforcement trends. According to Cohen, OFCCP’s top enforcement priorities are:

  1. Steering
  2. Compensation
  3. Entry-Level Failure to Hire Cases
  4. Good Faith Efforts
  5. Record Keeping

However, Cohen claimed, the data taken from DOL’s Public Enforcement Database show that the agency “is still trying to figure out compensation,” as indicated by a lack of settlements resulting from compensation discrimination and the majority of discrimination findings (70.58%) resulting from hiring cases in FY 2014.

Additionally, the total number of compliance evaluations and the percentage of those evaluations to result in a Conciliation Agreement or Financial Remedy are all lower in FY 2014 than in any other year under the Obama administration.

Other important takeaways from this session included:

  • Contractors in the Northeast and Mid-Atlantic regions should expect more pay discrimination cases.
  • There was at least one case where OFCCP pursued a compensation claim based on disability.
  • OFCCP will no longer look at compensation comparing white employees to “total minority” employees, but will instead be comparing the different race groups to each other.
  • Under the new Item 19 request, OFCCP will be increasingly looking at other forms of compensation besides base pay, such as bonuses.

Cohen’s advice is to conduct internal proactive analyses of base pay, and to consider analyzing additional forms of compensation as well, such as bonuses, commissions, and overtime pay. He suggests that OFCCP has said that they will follow Title VII principles and case law, so contractors should be conducting multiple regression analyses using “similarly situated employee groups” in their proactive analyses.

Legal Experts Panel

On the final day of the conference, David Fortney of Fortney & Scott moderated a panel of legal experts. The session was an effective wrap-up of the conference, with Fortney asking the panel to provide opinions on topics brought up in sessions over the previous two days. Some of the key takeaways from the panelists:

  • Valerie Hoffman of Sayfarth Shaw stated that, while both the EEOC and OFCCP say equal pay is a top priority, their inability to identify compensation issues is the reason for the focus on steering. However, steering is a placement problem, not a compensation problem. Her advice to contractors was to conduct pay analyses, fill in holes in your data (such as prior relevant experience), and make sure you have the tools to assess progress.
  • Mickey Silberman of Jackson Lewis said that despite the pressure on OFCCP to find pay discrimination, it is actually proving difficult for them to do so. The shift of focus to steering is because OFCCP is trying to use the same framework in compensation cases that has worked in failure to hire cases in the past.
  • Steering is not only possible in entry-level jobs, according to Nita Beecher of Mercer. She advised that an analysis of steering should make sure people are not getting stuck in their career advancement and that people are being promoted equitably. She also said that, while there are not many compensation findings by the agency, the ones that do happen tend to be bad.
  • According to Joe Lakis of Norris, Tysse, Lampey, & Lakis, the current relationship between the regulators and the regulated is the most tense and hostile that he has seen in 21 years, and that contractors are expending a lot of time, energy, and money trying to engage in good faith efforts.
  • Jon Geier of Paul Hastings advised that adverse impact analyses should be conducted using the “highest-selected” group as the comparator. In audits, he recommends always conducting any analyses prior to submission for risk assessment purposes. With regard to transitional items, such as the new reporting for Section 503 and VEVRAA, he has not received any pushback from simply indicating that you are aware of the requirements and that they will be done. He stressed that a very important, but often overlooked, step in an audit is to send a “Hold” letter to establishments advising them to retain all relevant records when a scheduling or courtesy letter is received.
  • Geier also suggested preparing alternate versions of AAPs using groupings other than AAP job groups that may be more meaningful within the organization. This may facilitate cooperation between the compliance and diversity functions and get more buy-in from executives. He stressed that these analyses should be conducted under privilege.
  • Several panelists lamented that the agencies did not use their presence at the conference to provide new information to attendees.

By Brittany Dian, HR Analyst; Bryce Hansell, HR Analyst; Kristen Pryor, Consultant; Kayo Sady, Senior Consultant; Jana Garman, Consultant;  Joanna Colosimo, Senior Consultant; Dave Sharrer, Consultant;  Amanda Shapiro, Senior Consultant; Yevonessa Hall, Consultant; and Yesenia Avila, Associate Consultant at DCI Consulting Group

 

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In accordance with the revised Section 503 regulations, federal contractors are required to invite applicants and employees to voluntarily disclose disability status from employees and applicants and including these figures in their affirmative action plans. This information is strictly voluntary, so contractors may not compel or coerce employees or applicants to complete the form. Therefore, 100% participation of employees or applicants in the voluntary invitation is not likely.

Given this, DCI clients have raised concerns about low participation rates in this voluntary process and the impact that this will have on the disability goals and other analytics.  Therefore, we conducted a short survey for contractors to share their self-identification participation rates to establish an industry benchmark for contractor awareness. All information gathered from this survey was kept anonymous, and the following results have been aggregated.

This survey addressed four areas contractors should consider when interpreting self-identification results:

  1. Participation rate (percent of employees that filled out the survey);
  2. Response rate (of those that participated in the survey, what percent were disabled);
  3. Utilization rate (percent of employees disabled in comparison to the workforce); and
  4. Applicant response rate (percent of applicants identifying as disabled)

One additional analysis conducted was a correlation analysis to compare rates in comparison to contractor size.  For example, are employees more likely to participate in the voluntary survey in a smaller company versus a larger company?  A positive and high correlation would suggest the answer is yes.

 

1. Participation Rate

Participation rate was measured by the percent of the entire workforce that completed the voluntary self-identification form. Results showed that as the size of the company increased, the participation rate decreased.

  • Average participation rate: 22.32
  • Correlation between company size and participation rate: -0.28

 

2. Response Rate

Breaking the results down even further, response rate was also considered. Response rate assessed the percent of employees that responded affirmatively to having or having had a disability out of the employees that participated. Interestingly, this resulted in a positive correlation with company size, meaning, out of the employees that participated, the rate of those that responded affirmatively increased along with company size.

  • Average response rate: 9.89
  • Correlation between company size and response rate: 0.29

 

3. Utilization Rate

However, when affirmative responses were assessed against the entire company population, identified as utilization rate, we found a considerable decrease in the average number of employees who affirmatively self-identified as having or having had a disability. Much like the participation rate, a negative correlation was found between workforce rate and company size, meaning, as the size of the company increased, the number of employees who affirmatively self-identified decreased.

  • Average workforce rate: 2.54
  • Correlation between company size and workforce rate: -0.07

 

4. Applicant Response Rate

Finally, this survey also assessed the rate of applicant’s who affirmatively self-identified out of the entire applicant pool. Again, a negative correlation was found between applicant rate and company size.

  • Average applicant rate: 2.17
  • Correlation between company size and applicant rate: -0.16

When comparing self-disclosure rates to an industry benchmark, contractors should consider the method in which they analyze their company data. Here we have identified three potential ways contractors may be looking at their data, with each providing different results. Specifically, the difference in response rate and workforce rate should be cause for concern. By using a denominator (total workforce versus those that participated in the survey), we see a substantial decrease in self-identification rates, and a reversal in the direction of the correlation. Each method provides a different picture of the data, with some more favorable than others.

Although the sample was relatively small, a number of industries were represented, such as banking, education, healthcare, and manufacturing, to name a few, as well as company sizes, which consisted of  ranges of 0-499 to over 50,000. Full survey results can be found here.

There were several comments in the survey that are worthy of addressing to guide other contractors in compliance efforts.

  • Employees don’t feel comfortable and fear self-disclosing disability status.
  • Concern about manager access of information.
  • Union dislike of the data collection.
  • Employee ID was a challenge to track since it was not on the survey.
  • Seeing more participation from new hires than employee population.
  • Difficulty in ensuring the data is collected in the same manner across the corporation.
  • Applicants not completing the online application process (i.e. drop off before making it to the self-ID form).

Recall that the OFCCP is hopeful contractors will aspire for a welcoming environment in which applicants and employees feel comfortable self-disclosing disability status. It is imperative to effectively communicate how this information will be collected and maintained confidentially to appease any fear of information sharing or retaliation. This being said, it is important to communicate support from all levels of the organization, share resources and information with employees on why this change is occurring.  In addition, consider providing supplemental information on the page before and after the mandated OFCCP form so that employees become more knowledgeable and comfortable with self-disclosing this information. This supplemental page will be an opportunity for contractors to collect employee ID information to annually complete the utilization analysis (i.e. link disability disclosure to job group within a location). Finally, if you notice any concerns with completion rate of the online application, consider the job seeker experience and review the process to ensure it is clear to the job seeker when they have gone through all the online application pages (i.e. make sure the job seeker is alerted to the fact they have been provided all the appropriate forms and it is time to submit).

As more contractors come into full compliance with Subpart C requirements, it will be useful to resurvey contractors to see if these industry benchmarks and trends change at all. Stay tuned for a resurvey of Section 503 compliance in Quarter 1 2016.

By Bryce Hansell, HR Analyst; Keli Wilson, Senior Consultant; and Dave Cohen, President, DCI Consulting Group 

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