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Dave Sharrer

David Sharrer, M.S.

Consultant
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David Sharrer is a Consultant at DCI Consulting Group, Inc. where he provides support and guidance to clients related to the development of affirmative action programs, submission of equal employment reporting, salary equity analyses, diversity and inclusion analytics, selection testing, and OFCCP audit support. David also publishes and maintains DCI’s OFCCP Blogspot website and Client Alerts mailing list.

Prior to joining DCI, David has experience working for the Department of Veterans Affairs and as a trainer in the private sector. He has previously worked on projects related to job analysis, compensation, employee selection, test validation, performance appraisal, and training and development. He has presented research at professional conferences on the relationship between job performance and test completion times.

David earned his Master of Science degree in Industrial/Organizational Psychology from Radford University and a Bachelor of Science degree in Psychology from Virginia Tech. He is also an adjunct faculty member at Radford University.

Dave Sharrer ’s Recent Posts

The OFCCP uses an administratively neutral process called the Federal Contractor Selection System (FCSS) to select contractor establishments for audit. Contractors selected by the FCSS historically have been sent Corporate Scheduling Announcement Letters (CSALs) as a courtesy, giving them advance notice that the establishment has been selected for a compliance evaluation.

After the most recent round of CSALS were issued in November 2014, no new CSALs were issued in 2015 or 2016. The CSAL is not required by law, and there has been no indication from the OFCCP when, or if, new CSALs will be issued.

As the OFCCP has worked through auditing the 2500 establishments on the 2014 CSAL list, we at DCI have noticed a sharp decrease in the number of audits initiated over the past year.

However, recently, we have seen a slight uptick in new audit activity, without the issuance of new CSALs. Specifically, we have seen several Functional Affirmative Action Plan (FAAP) audits, which are selected by a random number generator rather than by the FCSS. We also have clients who have received scheduling letters for establishments which were not included in the November 2014 CSAL.

By Dave Sharrer, Senior Consultant at DCI Consulting Group

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One day before the September 30 deadline for the 2016 EEO-1 filing season, the EEOC put out a press release announcing that changes to the EEO-1 report have now been finalized. The changes were initially proposed in February, and have since undergone two public comment periods, with minor updates resulting in each.

The final rule has not yet been published in the Federal Register, but the EEOC has published several online resources, including the new EEO-1 Report form, a Small Business Fact Sheet, and a Q&A.

Some notable changes:

  • There will be no EEO-1 report filed during the 2017 calendar year. The 2017 EEO-1 survey must be submitted and certified by March 31, 2018.
  • Employers will now select a payroll period between October 1 and December 31 for their snapshot (previously July 1 through September 30).
  • Previously, employers reported within the 10 EEO-1 categories. Now each EEO-1 category will be separated into 12 EEO-1 pay bands.

Employers who have not yet filed their 2016 EEO-1 reports should send an email with their company number to E1.EXTENSIONS@EEOC.GOV immediately to request a 30-day extension. No extensions will be granted after October 30th.

By Dave Sharrer, Consultant and Brittany Dian, Associate Consultant at DCI Consulting Group

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OFCCP announced on July 1, 2016 that the Scheduling Letter and Itemized Listing has received OMB approval, and has been renewed through June 30, 2019 with a few minor changes. The new scheduling letter takes effect immediately, and will be used to initiate any supply and service compliance evaluations starting on July 1, 2016 or later. You can find the renewed Scheduling Letter and Itemized listing here.

OFCCP Institute submitted comments in response to the proposed renewal when it was published on October 29, 2015. In our January 14, 2016 blog, we discussed two of these comments, which seem to have been taken into consideration before approval by OMB:

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

    • The October 29, 2015 proposed changes included adding language stating that OFCCP “may share such information with other federal government agencies to promote interagency coordination.”
    • The approved letter clarifies that OFCCP “may also share that information with other enforcement agencies within DOL, as well as other federal civil rights enforcement agencies with which we have information sharing agreements.”

2. 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

    •  The approved letter’s item 14 does say “If you are six months or more into your current AAP year on the date you receive this listing, please also submit current year hiring data to measure against your benchmark.”
    • However,  there is an FAQ on OFCCP’s website that clearly states that “Item 14 in the Itemized Listing, consistent with the regulation at 41 CFR 60- 300.45(b) (2), only requires that a contractor submit documentation of the hiring benchmark that it adopted… the contractor does not have to analyze or compare hiring of protected veterans to the adopted benchmark. ”
    • It appears that the new scheduling letter requirement of providing current year hiring data for protected veterans seems to conflict with the OFCCP FAQ on this matter.

Finally, it appears that there may be a typo or clerical error in the published letter that OFCCP will likely make a technical correction to in the coming weeks.  On Item 18, the letter indicates “if you are six months or more into your current AAP year when you receive this listing, provide the information in (a) through (c) below for at least the first six months of the current AAP year.”  It does not reference item (d), which is terminations.  Items (a) – (c) are applicants, hires, and promotions.

As always, we will provide more information as it becomes available. Stay tuned!

By Dave Sharrer, Consultant, and Joanna Colosimo, Senior 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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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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As outlined in 41 CFR 60-3, contractors are required to analyze personnel activity to determine if there are barriers to equal employment for protected classes. One method of determining whether these barriers exist for applicants is to evaluate whether there are statistical differences in selection rates between groups. However, before you can determine the selection rate, you need to know who to include in the analysis. For contractors who are familiar with the rules and guidance that apply to sex and race/ethnicity analyses, the recent guidance from OFCCP on the analyses required under Section 503 and VEVRAA may leave them feeling like they aren’t in Kansas anymore.

One major consideration when conducting adverse impact analyses is “how should I treat internal applicants?” For several decades, this question was answered by the 1978 Uniform Guidelines on Employee Selection Procedures (UGESP), largely because it has been well-accepted in the courts and was codified in the Code of Federal Regulations. In the UGESP FAQ, the terms “applicant” and “candidate” are used to distinguish between those who express interest in a job and those who are considered without expressing interest in the job. This means that if an internal employee applies to one of your requisitions, they are an applicant – along with the external job-seekers who applied. In the past, the only reason a job-seeker would be removed from the analysis would be if he or she withdrew from consideration.

With the advent of the Internet and related technology, employers often found that jobs posted on the Internet would receive an extremely large number of applications. This was problematic for several reasons. First, contractors were unable to review all of the applications that were received, leading to many job-seekers being “rejected” without ever being considered. Secondly, with such large applicant pools, even small differences in selection rates were statistically significant.

OFCCP’s 2005 Internet Applicant Recordkeeping Rule provides contractors with a consistent, 4-pronged approach to determining if someone meets the criteria to be considered an applicant in an adverse impact analysis:

  1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
  2. The contractor considers the individual for employment in a particular position;
  3. The individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and
  4. The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

If the job-seeker does not meet all four of these criteria, they are not an “applicant.” Job-seekers who do not possess basic qualifications, or who are not considered, do not need to be included in an adverse impact analysis. This also means that if a contractor fills an opening with an internal candidate before considering any external candidates, that none of those external candidates need to be considered. If the contractor does not consider the job-seeker, they do not need to be included in the adverse impact analysis.

Standard

Who is included in the analysis?

Uniform Guidelines Any external applicant or internal candidate who has not removed him or herself from consideration at any stage of the selection process
Internet Applicant Rule Any job seeker who expresses interest in a position, is considered for that position, possesses the basic qualifications for that position, and does not remove him or herself from consideration at any stage of the selection process

 

Unfortunately, it is unclear how these standards may apply to analyses conducted under Section 503 and VEVRAA, in large part because the analyses are not described as “applicant” and “promotion” analyses.

Contractors must collect, maintain, and analyze data related to the total number of applicants (internal and external) as well as the number who identify as a protected veteran or individual with a disability. They must also report on the total number of hires (which an OFCCP FAQ defines as selections that result from a competitive process, whether applicants were internal or external), as well as the number of hires from each protected group, along with the number of jobs filled, which includes hires as well as non-competitive placements.

This is confusing, however, when the next OFCCP FAQ says that the number of applicants will be compared to the number of jobs filled, which may include non-competitive placements.

There is an FAQ that permits a contractor to apply the Internet Applicant Rule to remove applicants who are not considered or who do not meet the basic qualifications for the job. However, contractors should be certain that the basic qualifications used to screen out job-seekers are not doing so based on any criteria that would tend to screen out individuals with a disability or protected veterans.

Let’s walk through an example scenario outlining the disconnect between the regulatory guidance:

A contractor is filling an opening for a computer programmer. The job is first posted internally, and there are 10 internal candidates who express interest in this job. The job was also posted externally, and there were 50 external people who expressed interest in the job as well. However, because one of the internal candidates was selected, none of the external job-seekers were considered for the position.

How many applicants are there?

UGESP

Internet Applicant Rule

Section 503/VEVRAA FAQ

60

10

???

 

Not only is this guidance unclear across E.O. 11246, Section 503, and VEVRAA requirements, but the confusion is continued when we examine OFCCP enforcement trends related to this topic.   Compliance officers conducting compliance reviews under E.O. 11246 often do not consistently apply the standards outlined in UGESP and the Internet Applicant Rule when determining who to include in the personnel analysis for race/ethnicity and sex, and the revised scheduling letter and itemized listing do not provide any additional guidance or clarification.  It is not uncommon to encounter compliance reviews where compliance officers remove internal candidates completely from an applicant analysis, even if the internal candidate meets the standards found in UGESP or the Internet Applicant Rule.   Yet, all official guidance appears to conclude that competitive internal applicants should be included in all types of analyses that cover E.O. 11246, Section 503, and VEVRAA.

At DCI, we recommend using the Internet Applicant Rule in determining whether or not a job seeker qualifies as an applicant. However, contractors should make sure the disposition codes are properly used and clearly indicate why the individual did not meet basic qualifications or withdrew from consideration. Contractors should also evaluate the basic qualifications to determine if they are a barrier to individuals with disabilities or protected veterans. We will continue to provide updates as we learn more about the new regulations and how contractors should conduct the analyses required under Section 503 and VEVRAA as we learn more.

By Dave Sharrer, Consultant and Joanna Colosimo, Senior Consultant at DCI Consulting Group 

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21 January 2015

DCI predicts that the OFCCP will continue to stay busy in 2015.  Here are the top stories and trends we expect to see this year from the agency.

1.) Sex Discrimination Guidelines
2.) Construction Regulations
3.) Equal Pay Report
4.) VETS 4212
5.) 503/VEVRAA Implementation
6.) Steering
7.) Itemized Listing
8.) FAQs (LGBT and More)
9.) EEO is the Law Poster

Sex Discrimination Guidelines

In November 2014, the OFCCP sent a Notice of Proposed Rulemaking to the OMB for review and approval on the revised Sex Discrimination Guidelines.  We should expect to see the proposed rule for public notice and comment in early-mid 2015.  As soon as the NPRM is released from OMB and made public, DCI will notify contractors immediately.

Construction Regulations

The OFCCP mentioned revising the construction regulations in the FY 2015 Congressional Budget Justification. It is anticipated that an NPRM will be issued in FY 2015 addressing the affirmative action plan requirements for federal and federally assisted construction contractors and subcontractors. DCI will keep the contractor community updated on any developments from the OFCCP.

Equal Pay Report

Following the August 8, 2014 publication of the NPRM for a new Equal Pay Report, a public comment period was open through January 5, 2015 (extended from the original November 6, 2014 deadline). In brief, the proposed rule suggests that the OFCCP will annually collect summary W-2 compensation data from contractors, utilizing the data to determine an industry standard for identifying potential discrimination. Publication of the finalized rule is anticipated in late August 2015. Based on prior implementation timeframes for new regulatory data obligations and given the need for systems updates, it can be reasonably expected that the first equal pay reporting requirement under the new regulation would not occur until the start of 2017.

VETS 4212

As we reported in a prior blog, the Veterans’ Employment and Training Service (VETS) of the U.S. Department of Labor issued a final rule in September 2014 updating the reporting requirements for federal contractors under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). While the rule became effective on October 27, 2014, contractors will actually see the impact of these changes in 2015.

The primary change will be that VETS-100 and VETS-100A reporting will be replaced with the VETS-4212. In what we anticipate will be a welcome change to most contractors, the VETS-4212 requires that contractors will report protected veterans in the aggregate rather than by protected veteran category. This should ease the administrative burden of completing the report as well as provide more meaningful and practical data to VETS.

As we announced this morning, the OFCCP has released two FAQs related to the self-identification requirements under VEVRAA. Because VEVRAA requires contractors to invite applicants at the post-offer stage to self-identify whether “he or she belongs to one or more of the specific categories of protected veteran for which the contractor is required to report pursuant to 41 CFR Part 61-300” (VETS-4212), contractors are now only required to solicit whether those offered a job wish to identify as a protected veteran, regardless of category. However, the FAQs do clarify that contractors may continue to solicit information regarding the four categories of protected veteran if they wish to continue doing so, as long as they are reporting this information in the aggregate on the VETS-4212.

While there is no requirement to collect and maintain data on specific protected veteran categories, contractors may wish to do so to help identify disabled veterans who may require an accommodation, as well as to more easily identify when “recently separated” veterans are no longer a member of this protected category.

503/VEVRAA Implementation

This year will see the full implementation of the revised Section 503 and VEVRAA regulations covering individuals with a disability and protected veterans, respectively.  In addition to the changes that were effective as of March 2014, the remainder of the 503/VEVRAA provisions must be implemented as of each contractor’s next affirmative action date.  The following are some big picture NEW requirements that are being implemented for many January AAPs right now:

  • Voluntary self-identification of applicant disability (using the OFCCP form) and protected veteran status, both pre- and post-offer,
  • Voluntary self-identification of employee disability sometime during the plan year,
  • New external policy dissemination requirements,
  • EEO/AA policy statement changes,
  • Implementation of procedures to track outreach and recruitment efforts to assist with required annual evaluation requirements (if not already in place),
  • Formally documenting audit and reporting activities, and
  • Tracking data points for the “44k” analytics, including the number of job openings, jobs filled, total applicants and hires, as well as counts of disabled and protected veteran applicants and hires.

Please note that the new itemized listing requires contractors to submit documentation on some of these new requirements in addition to some of the existing 503/VEVRAA requirements. Contractors should verify these pieces are in place and up to date before an audit occurs.

Steering

The uptick in Steering allegations by the OFCCP in 2014 stimulated many DCI blog posts on the subject, multiple ILG conference discussions, and too many client conversations to count. And that is not going to change in 2015. The fact is, steering cases are low-hanging fruit for the OFCCP, and the fact pattern in steering cases is often very similar to the most common failure-to-hire settlements: placement into low-skilled, high applicant volume jobs using an unstructured, unstandardized system that is not evidently job-related. Thus, we expect steering allegations to increase in 2015 and encourage our clients to take stock of their selection and placement processes. In particular, we suggest that our clients audit their selection and placement systems (especially for lower level jobs) to ensure that they have appropriate standardization and validation evidence in place to defend against OFCCP steering claims.

Itemized Listing

For 2015 audit activity, be prepared to produce a lot more data at the desk audit stage, and endure a longer audit process. As we mentioned in a previous blog, the newly released scheduling letter and itemized listing revealed twenty-two requirements, compared to the eleven item listing that was previously used. In addition, enhanced data submission requirements were introduced for 503 (Items 7 – 10), VEVRAA (Items 11 – 14) and compensation (Item 19).

Although our December blog included information on the 503 and VEVRAA partial year request, we do want to note that this may not affect federal contractors who are now entering their transitional AAP year. So if you have a January or February 2015 plan date, and are now implementing subpart C, you would not be in the position to comply with this request. However, you should be prepared to produce your organization’s implementation plan.

For a quick comp review, please read our “compensation guidance summary” released in November.

FAQs (LGBT and More)

In an effort to help contractors navigate the sea of changes brought about in 2014, the OFCCP released a number of new FAQs near the end of the year. Several topics covered in the new FAQs included submission of partial year and compensation data under the new scheduling letter, options for storing self-identified disability data,  and defining employer-employee relationships for AAP purposes. DCI predicts that the OFCCP will continue to issue new FAQs throughout 2015 to address questions from contractors as they work to translate written requirements into tangible strategies for implementation. One topic that DCI expects to see covered in upcoming FAQs is guidance on implementing the new LGBT regulations. The final rule, which adds “sexual orientation” and “gender identity” as protected classes under Executive Order 11246, was published in the Federal Register on December 5, 2014. Although the rule states that data collection/analysis will not be required on the basis of sexual orientation or gender identity, contractors should be on the lookout for FAQs outlining the required changes for LGBT under the new rule.

EEO is the Law Poster

During the 2014 NILG conference, Debra Carr, the OFCCP’s Director of the Division of Policy and Program Development stated that the agency will be coordinating with the EEOC to update the EEO is the Law poster.  The updates are necessary to reflect the new regulatory landscape, including the new LGBT regulations.  However, no timeline has been put forth for this change as of yet.

By Joanna Colosimo, Senior Consultant; Keli Wilson, M.A., Senior Consultant; Jana Garman, M.A., Consultant; Dave Sharrer, M.S., Consultant; Kristen Pryor, M.S., Associate Consultant; Kayo Sady, Ph.D, Senior Consultant; Yesenia Avila, HR Analyst; Yevonessa Hall, M.P.S., Consultant; Rachel Gabbard, M.A., HR Analyst; and Eric Dunleavy, Ph.D., Principal Consultant, DCI Consulting Group 

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On Tuesday, January 20, 2015, the OFCCP released two FAQs clarifying the self-ID requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) in light of recent changes to 41 CFR 61-300 (VETS-4212, formerly VETS-100 and VETS-100A).

VEVRAA requires contractors to invite applicants, post-offer, to self-identify “whether the applicant believes he or she belongs to one or more of the specific categories of protected veteran for which the contractor is required to report pursuant to 41 CFR part 61-300.” In October, 41 CFR 61-300 was revised to require contractors to report protected veterans in the aggregate rather than by individual protected veteran category.

The first FAQ clarifies that, as a result of this change, contractors are no longer required to invite applicants to self-identify using the individual protected veteran categories in the post-offer stage. However, the second FAQ does indicate that contractors may continue to solicit information on the four categories of protected veteran as long as they provide the data to VETS in the aggregate on the VETS-4212 form.

By Dave Sharrer, M.S., Consultant, DCI Consulting Group 

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On June 18, OFCCP updated the FAQs for Section 503 of the Rehabilitation Act (Section 503). One notable addition pertains to preferential hiring of individuals with disabilities:

Under the new regulations, must a contractor hire an individual with a disability who is not the best qualified but who meets the minimum requirements of the job for the purposes of affirmative action?

No. The Section 503 regulations do not require contractors to hire an individual who is not qualified for the position being sought. Nor do they require contractors to hire a less qualified candidate instead of the best qualified candidate for the purposes of affirmative action. However, it would not violate Section 503 for a contractor to select a person with a disability over a candidate without a disability who was equally or better qualified, so long as that selection was not based on a prohibited factor such as race, gender or ethnicity.

It is true that the updated regulations permit voluntary affirmative action including a disability-related hiring preference, as found in § 60-741.46:

(2) Disability-related information from the applicant and/or employee self-identification request required by § 60-741.42 may be used to identify individuals with disabilities who are eligible to benefit from a voluntary affirmative action program for employees with disabilities.

For a contractor wanting to “do the right thing,” it may be tempting to preferentially hire individuals with disabilities, both to provide increased opportunities and also to reach utilization targets. However, we have concerns with allowing hiring decision makers to have access to this information during the selection process, because it may unfortunately be exposing these well-intentioned contractors to risk.

We suggest that contractors treat data about protected class status as confidential, and avoid making any personnel decisions based on this information. Race and sex information is typically obtained using an application “tear-off sheet” that does not accompany the application when it is reviewed by hiring managers. The updated regulation suggests that this is the best way to handle disability data as well, as seen in § 60-741.42:

(a) Pre-offer. (1) As part of the contractor’s affirmative action obligation, the contractor shall invite applicants to inform the contractor whether the applicant believes that he or she is an individual with a disability as defined in § 60-741.2(g)(1)(i) or (ii). This invitation shall be provided to each applicant when the applicant applies or is considered for employment. The invitation may be included with the application materials for a position, but must be separate from the application.

Additionally, in § 60-741.23:

 (d) Confidentiality and use of medical information.
(1) Information obtained under this section regarding the medical condition or history of any applicant or employee shall be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws administered by OFCCP, including this part, or enforcing the Americans with Disabilities Act, as amended, shall be provided relevant information on request.
(2) Information obtained under this section regarding the medical condition or history of any applicant or employee shall not be used for any purpose inconsistent with this part. 

And in the Preamble:

Requiring contractors to invite pre-offer self-identification will help fill this void. Lastly, OFCCP points out that, generally, self-identification information will be obtained by, and reside with, Human Resources (HR) offices and will not be provided to interviewing, testing, or hiring officials, as it is confidential information that must be kept separate from regular personnel records. This will help ensure that these officials do not, in fact, have knowledge of which applicants have chosen to self-identify as having a disability.

Contractors using disability information to make selection decisions may have to defend themselves against allegations of discrimination when they fail to hire individuals with a disability, and additionally may run afoul of the Americans with Disabilities Act. These contractors should also be aware that a description of the voluntary affirmative action program must be included in the AAP along with an annual report evaluating the effectiveness of the program.

Our recommendation for contractors wanting to provide additional opportunities for individuals with disability is to engage in outreach and recruitment activities and to have a reasonable accommodation policy in place to try to eliminate barriers. However, once people have gone through the application process, you should hire the most qualified candidate without reference to protected class membership.

By Dave Sharrer, M.S., Associate Consultant, and Mike Aamodt, Ph.D., Principal Consultant, DCI Consulting Group

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The Annual Southwest and Rocky Mountain (SWARM) Region Industry Liaison Group (ILG) Conference is known for high-quality information sessions on topics of interest to the federal contractor community, as well as active participation by representatives of government agencies. This year’s SWARM Conference, held in Denver, CO, was particularly notable, as it was the first ILG Conference since the updated Section 503 and VEVRAA regulations went into effect.

 

As expected, the new regulations were featured prominently throughout the conference. SWARM Regional Director Melissa Speer attempted to ease attendees’ concerns with VEVRAA’s hiring benchmark for protected veterans and Section 503’s utilization goal for individuals with disabilities. Speer mentioned how the benchmark and goal are “aspirational” management tools to measure progress and to promote accountability and should not be interpreted as mandatory quotas. She also reiterated that the changes required by the new regulations are a “process, not a switch,” and that “failure to meet these goals and benchmarks is not a violation, but failing to try is.” Additionally, Assistant Secretary of Labor, Kathleen Martinez provided some background and best practices for implementing the Section 503 regulations.

 

Despite these reassurances, practitioners who work with the contractor community provided some best practices of their own, advising contractors to be strategic about coming into compliance with the updated regulations. Mickey Silberman, Managing Partner at Jackson Lewis, advised attendees to “make these changes on a sequenced basis,” rather than trying to implement everything at once. Several presenters emphasized the importance of documenting and maintaining records of all good faith efforts.

 

Another topic that received considerable attention at this year’s SWARM Conference was ‘steering,’ where an organization may be accused of hiring female applicants for some jobs and males for other (typically higher-paying) jobs. Speaking with a panel of OFCCP District Directors, Rachel Woods, District Director from New Orleans, warned that there should not be any company representatives suggesting that female (or any protected class member) should apply for certain jobs, and that there should not be any “traditional-female” or “traditional-male” jobs. To prevent steering issues, she advised that contractors should have objective qualifications for positions, written guidelines in the hiring process, training for recruiters and hiring managers. Woods also recommends that contractors continually monitor their hiring processes. Additionally, as a best practice, she advised that contractors should ensure that an applicant is only able to apply for one position per application, and that application should specify to which position the job seeker is applying.

 

In the same OFCCP District Directors panel, Karen Hyman from the Houston District also advised that OFCCP does actively work with other agencies, including EEOC, OSHA, the Civil Rights Division of the Dept. of Justice, and the Wage and Hour Division of the Dept. of Labor.

 

The other hot topic at this year’s SWARM Conference was compensation. While there was considerable buzz surrounding the looming compensation data collection tool requested in President Obama’s April 8 Presidential Memorandum, OFCCP representatives were not able to provide any details. However, on the final day of the conference, Melissa Speer was joined by OFCCP’s Deputy Director of Operations, Marika Litras (who filled in at the last minute for an ill Pam Coukos) to discuss the agency’s compensation equity enforcement under Directive 307. Valerie Hoffman from Seyfarth Shaw represented the practitioner community on the panel. During this session, Speer insisted that “there is no trigger” that initiates a compensation analysis, although Litras did acknowledge that there are several factors that are taken into consideration which may “trigger” further consideration. However, she said that the criteria for selecting cases to pursue are “not valuable to share because [they are] constantly changing.”

 

To close out the conference, a panel of experts, including DCI’s own David Cohen, played a game of Family Feud in which they presented some best practices related to a wide range of topics affecting the federal contractor community.

 

If the SWARM Conference is any indication, we will have a lot to report from the National ILG Conference in Washington, D.C. this August.  Stay tuned!

 

 

By Dave Sharrer, M.S., Associate Consultant, DCI Consulting Group

 

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