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.

OFCCP Rescinds Compensation Guidance and Issues New Compensation Directive

OFCCP's website indicates that the agency will be formally rescinding its 2006 compensation guidance as of February 28, 2013. In its place, OFCCP will issue a new directive that is also effective as of February 28.

The new directive appears to make substantial changes to the approaches found in the 2006 compensation guidance, and reinforces the idea that compensation discrimination is a top priority for OFCCP.

To read the notice rescinding the 2006 compensation guidance, the new compensation directive, and other information regarding OFCCP's actions, see OFCCP's website at http://www.dol.gov/ofccp/regs/compliance/CompGuidance/.

We'll have more information about this in the coming days as we have a chance to digest the new directive and other information from OFCCP.

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.

Thoughts on OFCCP Discussion on "The New Census EEO Tab"

On Wednesday, February 6, the U.S. Department of Labor's Office of Federal Contract Compliance Programs held a discussion regarding the new EEO data now available from the Census Bureau.  This discussion was entitled "New Census EEO Tab Discussion."  This session was held as an invitation by OFCCP to have federal contractors and their representatives comment on the new EEO data that will be used in affirmative action plans.

It seemed clear from the OFCCP portion of this discussion that the agency has had limited experience with the new EEO data.  The agency's representatives did not seem to be aware of the significant number of differences the new EEO data has with the EEO data made available from the 2000 census.  A number of HR practitioners and consultants (including the writer of this article) tried to clarify for OFCCP some of the contractor community's concerns about the new EEO data.  (The new EEO data and information about this data can be found at http://www.census.gov/people/eeotabulation/.)

It should be noted that the new EEO data is, in fact, not an abstract from the 2010 census per se.  Unlike the data in the 1990 and 2000 EEO files, the new EEO data that has recently been made available is a compilation from 2006 through 2010 American Community Survey (ACS) data.

Where Do We Stand?

The current picture in regard to what’s happening at OFCCP seems to grow murkier all the time.　During 2012, we noticed multiple changes in approach and behavior from the agency.　We also noticed multiple changes in emphasis during affirmative action compliance reviews.　We’d like to use this article to share what we believe is happening at OFCCP, and provide you with an update on the status of several of the agency’s major initiatives.

During 2011, OFCCP released a number of proposals that would have fundamentally changed the agency’s expectations for federal contractors and subcontractors.　These proposals included the following:

Proposed Revisions to Regulations Regarding Veterans - OFCCP has proposed a number of dramatic changes to their regulations regarding veterans.　 Among these proposed changes are requirements to:

• survey applicants for veteran status
• establish "linkage agreements" with multiple veterans recruitment sources
• establish some form of placement goals for veterans, and
• collect five (5) years of data regarding the recruitment of veterans.　

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. 

What Should Your Company Submit to OFCCP at the Start of a Compliance Review?

This article originally appeared in the October 2012 edition of the LocalJobNetwork "OFCCP Digest." 

Your company has received that dreaded letter from the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) indicating that your company has been scheduled for an affirmative action compliance review. After the initial panic has subsided, it is time to consider what you will send to OFCCP in order to comply with the requests in the scheduling letter and itemized listing you've received.

While more affirmative action compliance reviews by OFCCP are now ending in conciliation agreements than was the case in the past, there are still plenty of companies that are receiving letters of compliance at the end of their reviews. The decision on what items to send to OFCCP and what items to hold back can be crucial in determining the outcome of an affirmative action compliance review. The 30 days between the time the scheduling letter is received and the time that your company's affirmative action plan is due to OFCCP should be used to make various strategic and tactical choices on what to provide to OFCCP.