Dealing with the Chaos at OFCCP

This article originally appeared in the July 2014 edition of the LocalJobNetwork "OFCCP Digest."

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs is a busy place. The agency has announced a multitude of priorities that affect federal contractors and subcontractors. Among these priorities are the following:

• Issues concerning veterans
• Issues concerning individuals with disabilities
• Compensation
• Use of criminal records in the selection process

There were new regulations or directives issued on each of these subjects during 2013.

How to Set Priorities for an OFCCP Review

This article originally appeared in the May 2013 edition of the LocalJobNetwork "OFCCP Digest." It is the first of a two-part series.

Part 1 - Understanding How OFCCP’s Focus Areas Affect Setting Priorities

This article is the first of a two-part series. In this article, we’ll provide some general information on how to set priorities in preparation for an OFCCP review. In the follow-up article, we’ll discuss a number of specific items that should be priorities for all federal contractors and subcontractors.

The letter from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) that opens an affirmative action compliance review sends many companies into a panic. There is concern over what must be submitted and when, how to prepare for questions that may occur, and how to deal with unexpected inquiries that may be part of the review. Many of these issues can be dealt with prior to the time a review actually begins if a company gives priority to the items that may be most important during a compliance review.

Applicant Tracking Systems and OFCCP Compliance

This article originally appeared in the May 2013 edition of the LocalJobNetwork "OFCCP Digest." It is the second of a two-part series.

The vendors that provide applicant tracking systems routinely suggest that their systems are “OFCCP compliant.” Yet, federal contractors and subcontractors are frequently cited for record-keeping issues associated with applicant data. How can companies ensure that their applicant tracking systems will help them successfully navigate through an OFCCP review?

As a starting point, it is important to note that no applicant tracking system (ATS) can by itself be “OFCCP compliant." Only federal contractors and subcontractors can be OFCCP compliant. The best ATS can be completely useless during an OFCCP compliance review if it is not used properly, and the worst ATS can be a godsend if a company has meticulously used it to record and retain the type of data that OFCCP expects.

EEOC Publishes Notice of Intent to Survey Applicants Interested in Federal Jobs for Disability Status

On February 15, 2013, the Equal Employment Opportunity Commission (EEOC) published a notice of its intent to change the survey form used to collect demographic information from persons expressing interest in positions with the federal government.  The form would be revised to include questions concerning disabilities that applicants may have.  Currently, the form only includes questions concerning gender, ethnicity, and race.

The proposed revisions to the survey form do NOT affect federal contractors or other private sector employers.  Instead, these proposed revisions are meant to help the federal government determine whether it is meeting its objectives in regard to hiring persons with disabilities for positions with the federal government.  The proposed revisions to the survey form do not simply ask whether an individual is a person with a disability, but instead ask specific questions about particular types of disabilities as well as questions concerning particular conditions an applicant may have.

While the proposed revisions to the survey form do not apply to private sector employers, these revisions are consistent with the federal government's desire to provide greater access to employment for persons with disabilities.  The requirement to survey applicants for disability status is one part of the proposed regulations issued by the Office of Federal Contract Compliance Programs (OFCCP) in December of 2011.  These proposed regulations have not been finalized by OFCCP, and concerns have been raised about a number of the changes found in the proposed regulations including this requirement to survey applicants concerning disability.  EEOC currently suggests that no disability survey should be conducted for applicants until the post-offer stage of the employment process.  It is possible that the proposed survey released on February 15 is an indication that EEOC may be changing its position in this regard.

The EEOC's notice can be found at the federal government's website showing all proposed regulations or at the Federal Register website.  OFCCP's proposed revisions to its regulations regarding disability can be found on the documents page of the HR Analytical Services website.

Limiting the Applicant Data That Is Provided to OFCCP (Part 2)

This article originally appeared in the February 2013 edition of the LocalJobNetwork "OFCCP Digest." It is the second of a two-part series.

Part 2 - Understanding Special Situations

In the first part of this two-part series, we discussed the fact that the applicant data that is provided to the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is a critical piece of information in any affirmative action compliance review. We found that OFCCP’s Internet Applicant rule provides a variety of ways to limit the applicant data that is submitted to OFCCP. We also identified a key idea in regard to the way that OFCCP examines applicant data:

OFCCP is interested in comparing data on the persons who could be hired for a company’s positions to the persons who actually were hired.

In this article, we’re going to examine a number of important situations that affect the applicant data that should be submitted to OFCCP. Before we continue, though, here’s a short review of how the Internet Applicant rule works. The Internet Applicant rule provides a four-prong test to determine which job seekers should be counted as applicants and should thus appear in statistical reports provided to OFCCP. These four prongs are:

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.

The Difference Between Recruitment and Selection

In part 1 of this series, we noted that OFCCP is currently very interested in the outreach efforts that companies are making to find qualified minorities, females, veterans, and persons with disabilities. While OFCCP showed little interest in recruitment for a significant number of years, OFCCP now examines recruitment efforts very closely during compliance reviews, especially as they pertain to veterans and persons with disabilities.

Limiting the Applicant Data That Is Provided to OFCCP

This article originally appeared in the January 2013 edition of the LocalJobNetwork "OFCCP Digest."  It is the first of a two part series.

Part 1 - The Rule Regarding Applicant Data

Most of the recent discussion about affirmative action compliance reviews by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) tends to focus on two areas: (1) OFCCP’s investigation of possible compensation discrimination by federal contractors and subcontractors, and (2) issues concerning veterans and persons with disabilities, especially in regard to outreach to find members of these two groups.  There is no question that these two areas have been priorities for OFCCP.  Yet, the majority of the back pay settlements growing out of affirmative action compliance reviews still involve hiring disparities, especially in entry-level positions.  A quick look at OFCCP’s website (http://www.dol.gov/ofccp) as of mid-January in 2013 substantiates this.  Three recent press releases reported on OFCCP’s website show that companies paid between $300,000 and $439,000 to groups of minorities or females applying for entry-level jobs, and there are no recent press releases concerning compensation settlements or problems involving veterans and persons with disabilities.