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WHAT TO EXPECT DURING AN EVALUATION AND COMMON PROBLEM AREAS FOR FEDERAL CONTRACTORS
OFCCPCommitment to
Workplace Inclusion
Office of Federal Contract Compliance Programs
Southeast Regional Director Sam MaidenSouth Carolina ILGDecember 5, 2019
Introduction to OFCCP
• Federal civil rights enforcement agency within
the U.S. Department of Labor
Mission: Enforce for the benefit of job seekers and
wage earners, the contractual promise of affirmative
action and equal employment opportunity required of
those who do business with the federal government.
• Jurisdiction over federal contractors and
subcontractors
Laws OFCCP Enforces
Executive Order 11246
Section 503 of the Rehabilitation Act of 1973
The Vietnam Era Veterans’ Readjustment
Assistance Act of 1974
3OFCCP Overview
Workplace Inclusion
• At OFCCP, we are committed to expanding
equal employment opportunities and
eliminating discrimination in the workplace of
federal contractors. As we work together to
ensure contractor compliance, we at OFCCP
must also exhibit workplaces free of
discrimination that promote diversity and
inclusion of all.
Four Pinnacles - CERT
• Certainty
• Efficiency
• Recognition
• Transparency
Certainty
Efficiency
RecognitionTransparency
Certainty
Certainty
• Goal number 1 for OFCCP is to
provide certainty to contractors
by following rule of law
principles and ensuring that the
agency sets clear expectations.
Certainty
• For OFCCP, certainty means providing guidance that
helps contractors be proactively compliant. Clear and
certain guidelines allow contractors to proactively
comply and ensure no ambiguity in enforcement.
• Opinion Letters
• Help Desk
• Compensation Directive
• Pre-Determination Notices
• FAQs
Parental Leave – 60.20.2
• Don’t treat men and women differently with regard to
availability of flexible work arrangements
• To the extent that a contractor provides family,
medical, or other leave, such leave must not be denied
or provided differently on the basis of sex
• A contractor must provide job guaranteed family
leave, including any paid leave, for male employees
on the same terms that family leave is provided for
female employees.
Educational Institutions
• Student employees do not need to be included in
AAPs or in records submitted during the course of a
compliance evaluation.
• We will continue to accept complaints alleging
employment discrimination filed by and on behalf of
student workers.
• OFCCP recently published a technical assistance
guide for educational institutions.
Educational Institutions
• Job Group Analysis - COW (Content,
Opportunities, Wages) • Example:
– Instructional Staff Within a specific department
• Tenured Professors
• Tenure-Track Associate Professors
• Non-Tenure Track Associate Professors
Job groups should align with hiring, promotion and
compensation practices.
Placement Goals
• In the event that the percentage of a particular
minority group is substantially less than would be
reasonably expected given the availability, OFCCP
may require the contractor to establish separate goals
for that particular group. Similarly, if the percentage
of men or women of a particular minority group is
substantially less than would be reasonably expected,
then OFCCP may require separate goals for those
underrepresented groups.
Placement Goals
• OFCCP recommends disaggregated placement
goals when specific minority groups are
underutilized. Categorize employees in each job
group who identify as White,
African‐American/Black, Asian/Pacific Islander,
American Indian/Alaskan Native, and Hispanic.
Then, as done for a single minority goal, compare
the percentage of qualified people available to
work in the recruitment area to the number of
employees in each job group.
Placement Goals
• Even when setting disaggregated placement
goals, contractors must continue to set a single,
aggregate minority placement goal to comply
with OFCCP’s regulations if minorities, in the
aggregate, are underutilized.
Best Practices – Educational Institutions
• Form diverse instructional staff search committees
• Use objective selection tools to ensure a more
uniform assessment of applicants
• Create mentoring partnerships within and outside
your organization
• Create EEO apprenticeship programs
• Post promotion opportunities
• Create and engage with employee resource groups
• Offer career counseling to assist employees.
Educational Institutions – Requirements
• Base hiring decisions on job-related knowledge, skills
and abilities
• Review job applications and other pre-employment
forms to ensure information is job related
• Evaluate selection methods that have an adverse
impact to ensure they are job related and consistent
with business necessity
• Training in EEO for management and supervisory
staff.
• Evaluate job requirements for promotion
Are your AI selection tools validated?
• OFCCP analyzes all selection devices for
adverse impact. If an AI-based selection
procedure is having adverse impact, the
contractor will be required to validate the
selection procedure
• The UGESP require local validation at the
organization’s facilities
• Off-the-shelf tests must be validated at your
own facilities
DATA REQUESTS AND PRE-ONSITE
ANALYSES
• If OFCCP requests Applicant Flow Data, we will:
– Review for consistency with the initial numbers you submitted
– Review dispositions and whether they were applied consistently
– Analyze each job group at the job title level, or create their own groups of titles
or even job groups
– Analyze each step in the application process for statistically significant
differences in outcomes
– Review whether candidates appear on multiple requisitions
– Review whether requisitions overlap
– Review whether candidates are hired into other jobs than those they apply for
(crossover)
– Check whether duplicates, multiples, offers, referrals are driving the disparity
they’ve discovered
– Check whether Internet Applicant Rule dispositions have been removed, and if
so, if they’ve been removed correctly
• Prohibits contractors and subcontractors from
disciplining or firing employees for attempting
to learn if they are victims of compensation
discrimination and, in certain instances, for
sharing pay information with their coworkers.
Executive Order 13665
19
EO 13665 Requirements
• Allow employees to discuss their pay with
other employees.
• Conduct an annual pay equity analysis to see if
there are any race or gender based disparities.
• Remedy any gender or race based pay
disparities not justified by a legitimate
business factor.
Directive 2018-05
• To outline standard procedures for reviewing
contractor compensation practices during a
compliance evaluation and
– emphasize OFCCP's priority of eliminating pay
discrimination through enforcement
– compliance by contractors through proactive self-
auditing.
Directive 2018-05
OFCCP will analyze:
• Monetary compensation in the form of salary
or pay rates, bonuses, commissions, pay
additions, or other forms of incentive pay;
• Training or advancement opportunities;
• Placement into particular jobs or differential
access to earnings opportunities such as
assignment to preferred contracts or territories.
60-20.2
• Denying transgender employees access to the
restrooms, changing rooms, showers or similar
facilities designated for use by the gender
which they identify
• Treating employees or applicants adversely
because they have received, are receiving
transition-related medical services designed to
facilitate the adoption of a sex or gender other
than the individual’s designated sex at birth
Efficiency
Efficiency
Recognition
Transparency
Certainty
Efficiency
• Goal number 2 for OFCCP is
to make compliance reviews
and assistance faster, more
focused, and less burdensome.
AAP Verification Initiative
• A directive in 2018 announced the AAP
Verification Initiative (DIR 2018-07). When
implemented, OFCCP can more efficiently
ensure that federal contractors have developed
and maintained required AAPs, through the
streamlined use of information technology.
Focused Reviews 60-1.20(4)
• OFCCP will add focused reviews to its
compliance activities, with comprehensive
onsite reviews focused on each of the three
enforcement authorities OFCCP enforces:
– Executive Order 11246, as amended;
– Section 503 of the Rehabilitation Act of 1973, as
amended; and
– the Vietnam Era Veterans’ Readjustment
Assistance Act of 1974, as amended.
Focused Reviews
• During a Focused Review, OFCCP would
schedule an onsite evaluation of a contractor’s
compliance with a particular law or laws, such
as Section 503 or VEVRAA, or certain
protected bases under EO 11246. This
investigative procedure lends itself to more
efficiency because, compared to compliance
reviews, the scope of focused reviews is
narrower.
12/10/2019 29
Developed by Division of Policy, Planning and Program Development
VEVRAA Focused Reviews
• August 2018 Directive 2018-04: Announced Focused Reviews
• Examines Contractor Compliance with VEVRAA
• Includes an Onsite Evaluation
12/10/2019 30
Developed by Division of Policy, Planning and Program Development
VEVRAA Focused Reviews
• Recently Separated Veterans
• Disabled Veterans
• Armed Forces Service Medal Veterans
• Active Duty Wartime or Campaign Badge Veterans
VEVRAA FOCUSED REVIEWS
• Veteran Benchmark – 5.9%
• Unlawful to discriminate in employment against the
spouse of a protected veteran
• VETS also provides resources for protected veterans
and their spouses, including an online portal designed
specifically for military spouses.
• 123 complaints on the basis of veteran status this past
FY.
Military Spouses
It is unlawful for the contractor to exclude or
deny equal jobs or benefits to, or otherwise
discriminate against, a qualified individual
because of the known protected veteran or pre-
JVA veteran status of an individual with whom
the qualified individual is known to have a
family, business, social or other relationship or
association.
Transition Assistance Program –
dol.gov/veterans/findajob/
Focused Reviews - Promotions
• Taking a closer look at representation of
women and minorities in university faculty,
law firms, financial firms and other higher
level positions at corporate headquarters.
• Will be looking at utilization, lines of
progression and perhaps conducting focused
evaluations based on promotions in upcoming
scheduling lists.
• Most likely out in the spring.
CMCEs
• Corporate HQ
– Will look at demographics of whole corporation
– Barriers for women and minorities
– How are promotions defined? – If definition varies
by different segments of the workforce you should
define for each segment
– Average time in job; average time in company
• Is there a difference in how long a particular group stays
in a job?
Educational Institutions – Promotions
• Will look at tenure promotions – carefully assessing
the variables used by the institution
• We will ask how you define promotions
• Compensation and promotions are intertwined.
OFCCP will the two areas both separately and
together. For example, if women are paid less than
men in a department and analysis shows that women
are not receiving tenure at the same rate as men,
OFCCP would analyze both tenure outcomes and
compensation and may request historical data.
Focused 503 Reviews
• The Focused Section 503 Reviews will include
a mandatory on-site visit.
• The OFCCP will be posting sample on-site
questions on their website.
• A current AAP for Minorities and Women will
be required to be submitted, but only for the
purpose of providing job groups – the agency
will not be analyzing all aspects of the AAP for
Minorities and Women.
Section 503 Focused Reviews
Assess
– Compliance of Written Section 503 AAP
– Postings and Notices
– Online Application Systems and Onboarding
Procedures
– Self-Identification Procedures
Five Year Milestone
• Make this an action item
– Section 503 was revised in 2014
– Subpart C requires a five year invitation to collect
voluntary employee disability status.
• Suggestion – It is time to be proactive:
– Invite everyone to self-id
– Analyze where you are towards the 7% utilization goal
– Highlight activities done to attract and retain IWDs
– Come up with alternative methods
Self-Identification
• Unless employees are seeking
accommodations they may be thinking long
and hard about the risks versus benefits of self-
identifying, even anonymously. As such,
companies should be able to explain the
benefits, including access to resources,
accommodations and a community of other
employees with disabilities.
Self-Identification
• Be clear that the information helps you
identify gaps in recruiting, hiring, retention
and promotion of people with disabilities.
Without this data, the business won’t know
how to target future diversity efforts
Self Identification
• Provide employees with the option to self-
identify within a secure/confidential online
system where they maintain changes, for
example, to tax deductions and pay check
allocations.
• Be upfront about the ways the information will
be used if an employee discloses that they
have a disability and explain how anonymity
or confidentiality will be protected. Monitor
that these protections are maintained.
Focused 503 Reviews
• OFCCP is currently working on a new form for the
self-identification of individuals with a disability
(IWD).
• Contractors may utilize their Regional Outreach
Coordinator (ROC) to get resources on outreach to
IWD organizations.
• A “best practice” is to have a centralized reasonable
accommodation policy and to appoint a “Chief
Accessibility Officer” to ensure consistency and
follow-through on providing accommodations
Proposed Rule – Self ID form
• Moves the space for the individual’s name and date to
the top of the form
• Removes the reasonable accommodation notice so
that the form is now one page instead of two
• Significantly revises the language used for the “Why
are you being asked to complete this form” section
• Revises the list of examples of disabilities, such as by
adding autoimmune disorders, gastrointestinal
disorders and nervous system conditions including
migraine headaches
Proposed rule – Self ID form
• Reasoning - softening the tone of the form to make
the language more positive,
• Updating and alphabetizing the types of disability,
and
• Removing the reasonable accommodation notice.
– It created confusion among applicants and
employees who thought that completing the form
automatically referred them for a reasonable
accommodation
• Agency is currently reviewing comments.
Outreach and Recruitment
Elements to consider when conducting your
assessment:
– Number of Referrals and Hires
– Long-term Goals
Outreach Assessment
• During an audit when you’ll be asked to show
which organizations you’ve worked with over
the past 12 months, and which ones you’ve
added or subtracted based on your annual
assessments (which can be reviewed over the
last three-year period of time).
• For example, Outreach log: Show specific
efforts to communicate with veteran and
disabled organizations for each department.
Outside Agency Conducts Our Research
Even if a contractor is having an agency conduct
its outreach, all the obligations and requirements
are the responsibility of the contractor itself!
Employers should circle back with staffing
agencies and other third-party sources to ensure
appropriate documentation. The contractor
should also be requesting this data routinely to
remain diligent and on top of trends, because
once again, the contractor is the sole entity
responsible should a violation occur.
Robust 503 Program
• We will analyze your assessment of outreach and recruitment
(qualitatively and quantitatively)
– Build a pipeline
• Are there a good number of referrals and hires?
• Will it help you long-term to identify candidates?
– Communication
• Do you have a disability ERG?
• Do you use the DOL self-id video?
– Retention
• When were your disability-related policies last updated?
• Do your policies comply with the ADA?
• Flexible leave policies.
Application Process
• Location where applicants apply
• Location where interviews occur
• Copies of application(s)
• Copies of onboarding forms
• Copies of screening questions and interview
notes
503 Applicants
• We will review your post-offer medical screening
and/or inquiries.
– OFCCP may request your list of rejected
applicants and conduct interviews.
• We will make sure that individualized
assessments were conducted.
– Potential issues
• Post offer screening out of anyone who had a past workers
comp issue
• Post offer screening out of anyone with a back issue.
503 Applicants
• Review Job descriptions and make sure essential
functions are BFQs
• We will review your pre-screening questions. Are
there any knockout questions that could be a barrier?
– Example: Can you work overtime?
• A person with a disability may answer NO.
However, perhaps they can perform overtime
with an accommodation.
503 Applicants
• An employer cannot discriminate against an
employee with a disability when offering and
providing health insurance coverage
• Employers can allay this concern by ensuring
that HR officials and supervisors understand
the available benefits.
• Employers can make sure to include
statements of nondiscrimination on their
benefits materials and websites
Four Areas Where We See Contractors
Fall Short
1. Insufficient outreach
2. Poor quality of outreach
3. Reluctance to self-identify
4. Unnecessary barriers (job requirements, site
accessibility)
Few federal contractors reaching the 7%
utilization goal for IWDs.
Applicant tracking and record keeping important
Reasonable Accommodation
Policy or Practice
Procedures
Interviews
Documentation
503 Employees
• Reasonable Accommodation = Productivity
– What happens if an employee asks for a reasonable
accommodation? Is the process interactive?
• We will talk to workers who took medical leave to
find out about practices, not necessarily what your
disability and leave policies say.
• We will look at retention, promotion and
compensation.
Best Practices
• Maintain a Centralized Reasonable
Accommodation System.
• Ensure That Top Leadership Endorses and
Supports Disability Inclusion Through Video
and Correspondence.
• Coordinate with State and Local Rehabilitation
Agencies.
• Provide Accessible Online Recruiting Tools.
Best Practices
• Provide a Comprehensive and Welcoming
Self-Identification Program.
• Sponsor Disability Inclusion Programs in the
Workplace.
• Employee Resources Groups.
• Chief Diversity/Accessibility Officer (or
perhaps an ADA Coordinator).
• Flexible Work Policies
Revisit your talent strategy
Few companies have reached the OFCCP’s
target of 7%
• How are companies sourcing for talent?
• Do your recruiting agencies assist job seekers with
disabilities?
• If your company recruits from colleges, what effort is
made to find students with disabilities?
• In practicing disability inclusion, it is best to work
with programs or agencies that help people with
disabilities find opportunities that highlight their
skills.
Create/Support a Disability ERG
Only 4% of US workers identify as having a
disability. • A company can show its support for workers with disabilities
by creating a Disability Employee Resource Group (ERG).
• Safe space for employees with disabilities or caregivers to
discuss or share resources within the group. ERG also creates
awareness and builds a community of empathetic workers who
can better understand and support their colleagues.
• ERG can also provide useful recommendations for attracting,
onboarding, and retaining workers with disabilities.
Provide accessible information
Employers are expected to ensure that employees
with disabilities have access to the same
information that similarly-situated employees
without disabilities have. We live in a digital era, we can adapt the information we share in
the workplace. For example, screen readers, screen magnifiers, or
assistive keyboards. Some tools provide closed captioning, stop
moving elements, change color contrasts, and convert text-to-
speech or text-to-braille. Many technology devices offer high-
level customization for people with different needs. Think about
how you share information in your company and look for ways to
adapt them for people living with disabilities.
Offer flexible work options
• Under the ADA, an employee who needs a modified
or part-time schedule because of their disability is
entitled to such a schedule if it will not cause undue
hardship. The absence of flexible work options such
as telecommuting, flexible schedules, leaves, or
reduced work hours may impact employment
opportunities for people with disabilities who are
unable to commute to work regularly. Create an
inclusive environment by offering flexibility. Flexible
work options are also useful for employees who need
time to care for themselves or family members.
503 Resources
• OFCCP has developed a website specific to
Section 503 for additional resources. It can be
found here
https://www.dol.gov/ofccp/Section503-
FocusedReviews/index.html.
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Driving Change Creating Opportunity
AskEARN.org
6565
Driving Change Creating Opportunity
Recruitment Sources
• College career and/or disability student services offices
• American Job Centers (AJCs)
• Centers for Independent Living (CILs)
• Employment Networks (ENs)
• Vocational Rehabilitation/National Employment Team (NET)
• Targeted job boards and job fairs
6666
Driving Change Creating Opportunity
Mental Health Toolkit
6767
Driving Change Creating Opportunity
Awareness
• Involves strategies for educating
workers on mental health issues and
taking action to foster a supportive
workplace culture.
6868
Driving Change Creating Opportunity
Accommodations
• Accommodations, meaning providing
employees with mental health conditions
the supports they need to perform their
jobs. Common examples include flexible
work arrangements and/or schedules
6969
Driving Change Creating Opportunity
Assistance
• Assisting employees who have, or may
develop, a mental health condition,
something many employers do through
formal employee assistance programs
(EAPs) or corporate support programs.
7070
Driving Change Creating Opportunity
Access
• Encourages employers to assess
healthcare plans to ensure or increase
coverage for behavioral/mental health
treatment
7171
Driving Change Creating OpportunityAskJAN.org 1-800-526-7234
Recognition
•Goal number 3 at
OFCCP is Recognition.
Recognition
Goal number 4Transparency
Transparency
• Improve operational consistency
• Allow for a more collaborative and efficient
approach
• Support contractors’ ability to conduct
meaningful self-audits so they can proactively
identify and address issues with their
employment practices.
CSAL
• Corporate Scheduling Announcement List
– OFCCP posted the CSAL list consistent with the
requirements of FOIA, and did not mail CSALs.
– List with 3,000 establishments
– Includes
• 500 Section 503 Reviews
• 500 Compliance Checks
• 500 VEVRAA Reviews
Compliance Checks
• Job advertisements (including state employment
service listings),
• Examples of accommodations for individuals with
disabilities.
• Prior Year AAP results
– 11246 Goals and good faith efforts to achieve them
– Assessment of 503 and 4212 outreach and
recruitment
• Option to provide offsite or onsite
Evaluation - What’s next
• Scheduling letter gives you 30 days to submit an
AAP.
• OFCCP will grant a one-time 30-day extension for
supporting data where AAPs are provided timely.
Support data is defined as Item 15-22 and is under a
header on the scheduling letter labeled Support Data.
• Idea is that you have maintained your AAP but we are
giving you extra time to gather comp data, etc.
Pre-desk audit stage
• Compliance Officer will contact you within 15
days of sending the scheduling letter.
• CO will provide an overview of the basic steps
in an evaluation, offer technical assistance and
explain the one time 30-day extension for
supporting data.
Desk Audit
• CO will contact you to confirm they have received
the AAP and notify you of any incomplete or
unacceptable desk audit submissions and allow 15
days for you to complete the submission.
• Other than that CO will only contact you to clarify
the information required by the scheduling letter.
• Ideally, desk audits will be completed in 45 days.
ERP
• With the publication of OFCCP’s recent
directive on Early Resolution Procedures, if
after the desk audit and an expedited refined
analysis, OFCCP believes there are strong
indicators of discrimination, OFCCP will
engage the contactor early and work
cooperatively with the contractor to resolve the
violations corporate wide.
Questions?
Closing
• You cannot manage what you cannot measure.
Use your AAP as a management tool.
• It is through this combination of enforcement
of the law and proactive compliance assistance
that OFCCP can work toward equal
employment opportunity when the federal
government contracts for supplies and services
or funds construction projects.
Contact Information
• To stay up-to-date with OFCCP
announcements on cases and policy initiatives,
you can subscribe to receive updates on our
website. At www.dol.gov/ofccp, you will see a
pop-up asking you for your email address.
Enter your email address to subscribe. You
can also simply text “OFCCP Updates” to
GOV311 (468-311) to sign up for mobile
updates.