OFCCP Compliance Check, Scheduling Letter and Item listing changes 11/15/2011

Transcription

1 OFCCP Compliance Check, Scheduling Letter and Item listing changes 11/15/2011 1

2 Agenda High-level overview Side-by-side comparison Impacts and Issues 2

3 Quote of the day (from the proposal): a contractor expends hours on data assembly and submission activity. Changes to the revised Scheduling Letter and Itemized Listing reduce contractor burden hours to

4 Compliance Check Letter Although compliance check letters have not been used in a while, it appears that they may be returning based on the fact that they have revised the letter. The revised letter appears to have the same general content as the previous letter. Compliance reviews are on-site and consist of the contractor making available for review: AAP results for preceding year Examples of job advertisements, including listings with state employment services Examples of accommodations made for persons with disabilities Allows contractor to mail/ information rather than an on-site. 4

5 Scheduling Letter New letter has some new language requiring contractors covered under section 4212 to file an annual report on their employment and hiring of protected veterans. This is referring to the submission of the Vets Reports. Elimination of I9 language Failure to comply language in letter is more prominent than in previous letter New letter eliminates disclaimers such as findings will determine if onsite which hints that an onsite is possible under any circumstance. Pushing electronic or submission a bit more heavily than in previous letter 5

6 Itemized listing Most of the old or language is now and language Some notes are removed, possibly with the intention of making submission less optional Requires copies of leave policies to be submitted Requires employment activities (counts) to be prepared using race/ethnicity Requires changes to promotion and termination count submission Includes many of the data requested in recent follow-up letters (additional compensation data elements, accommodations, etc) Requires submission of VETS reports for current and previous year 6

7 For submission of employment activities - substantial changes: Require counts by race/ethnicity and gender no longer total minority Requires submission counts by Job Group AND Job Title (no longer or ) Promotional information must now include the actual pool of candidates who applied or were considered No longer able to send involuntary counts only new letter states please identify terminations as either voluntary or involuntary Also for terminations, where selection for terminations were made (reductions in force, for example) you must now include actual pool of employees from which the termination selections were made For compensation submission - substantial changes: Compensation data must be as of February 1 st no longer as of plan date (or date of choice) Request includes: race/ethnicity, hire date by job title, EEO-1 and job group Earnings are more specific and include all types of pay Although not indicated as required additional factors are suggested: education, past experience, duty location, performance ratings, department, function, salary band/grade/range, etc Copies of documentation, policies etc., related to compensation practices 7

8 Dissecting the Itemized Listing 8

9 PROPOSED LETTER The U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), selected your [Insert: establishment, functional unit, or corporate headquarters] located at for a [Insert: compliance evaluation or corporate management compliance evaluation (CMCE)]. We are conducting this [Insert: compliance evaluation or CMCE] under the authority of Executive Order 11,246, Section 503 of the Rehabilitation Act of 1973, the affirmative action provisions of the Vietnam Era Veterans Readjustment Assistance Act of 1974 and their implementing regulations in 41 CFR Chapter 60. In addition to determining your compliance with these authorities, we will also verify your compliance with the regulations issued by the Veterans Employment and Training Service (VETS) requiring contractors covered under Section 4212 to file an annual report on their employment and hiring of protected veterans. CURRENT LETTER The U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) has selected your establishment located at for a under 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, 38 U.S.C. 4212, and their implementing regulations at CFR Chapter 60. In addition, the review will include an examination of your establishment s compliance with the Federal Contractor Veterans Employment Report (VETS-100) requirements (38 U.S.C 4212(d)). 9

10 A compliance evaluation is initiated as a compliance review. The compliance review may progress in three phases: a desk audit, an on-site review, and an off-site analysis. OFCCP describes the phases of a compliance review in its regulations at 41 CFR Chapter 60. For the desk audit, please submit the following information: 1. a copy of your current Executive Order Affirmative Action Program (AAP) prepared in accordance with the requirements of 41 CFR , and 41 CFR through ; 2. a copy of your current Section 503 and Section 4212 AAPs prepared in accordance with the requirements of 41 CFR through , 41 CFR through and/or 41 CFR through , respectively; and 3. the support data specified in the enclosed Itemized Listing. OFCCP will conduct the compliance review as described in the regulations at 41 CFR (a)(1) and (a)(1), , and , which outline the three possible phases of the process. These phases may include a desk audit, an onsite review, and an offsite analysis. For the desk audit please submit the following information: (1) a copy of your Executive Order Affirmative Action Program (AAP) prepared in accordance with the requirements of 41 CFR , and 41 CFR through *; (2) a copy of your Section 503/38 U.S.C AAP(s) prepared according to the requirements of 41 CFR Parts and 41 CFR Parts and/or , respectively; and (3) the support data specified in the enclosed Itemized Listing. 10

11 Please submit your AAPs and the support data specified in the enclosed Itemized Listing to the address listed on page one of this letter as soon as possible, but no later than 30 days from the date you receive this letter. Pursuant to 41 CFR (e), failure to preserve complete and accurate records constitutes non-compliance with your obligations as a Federal contractor or subcontractor. Once the evaluation begins, you are required to maintain all personnel and employment records described in the regulations enforced by OFCCP until the final disposition of the evaluation. We encourage you to submit your information in an electronic format to reduce the amount of time it takes to complete our evaluation of your [Insert establishment, functional unit, or corporate headquarters]. Should you opt to your submissions, use address. You should be aware that OFCCP may initiate enforcement proceedings if you fail to submit AAPs and support data that represent a reasonable effort to meet the requirements of the regulations in 41 CFR Chapter 60. Rest assured that OFCCP considers the information you provide in response to this Scheduling Letter as sensitive and confidential. Therefore, any disclosures we may make will be consistent with the provisions of the Freedom of Information Act. Please contact at if you have any questions concerning the compliance evaluation. OFCCP will treat the information you submit in response to this letter as sensitive and confidential to the maximum extent permitted under the Freedom of Information Act. The findings OFCCP makes during the desk audit generally will determine whether an onsite review will be necessary, and if so, whether the onsite will focus on one, two or several issues. If an onsite review is necessary, we will notify you. You should note that 41 CFR authorizes the initiation of enforcement proceedings if the materials you submit for desk audit do not represent a reasonable effort* to meet the requirements of the regulations. Please submit your AAPs and the support data specified in the enclosed Itemized Listing to the address listed on page one of this letter as soon as possible, but no later than 30 days from the date of your receipt of this letter. We encourage you to submit as much information as possible in electronic format as doing so may reduce the amount of time it takes to complete our review. If you have any questions concerning the compliance review, please feel free to contact and. 11

12 PROPOSED ITEMIZED LISTING Executive Order AAP 1. An organizational profile prepared according to 41 CFR The formation of job groups (covering all jobs) consistent with criteria given in 41 CFR For each job group, a statement of the percentage of minority and female incumbents as described in 41 CFR For each job group, a determination of minority and female availability that considers the factors given in 41 CFR (c)(1) and (c)(2). 5. For each job group, the comparison of incumbency to availability as explained in 41 CFR Placement goals for each job group in which the percentage of minorities or women employed is less than would be reasonably expected given their availability as described in 41 CFR CURRENT ITEMIZED LISTING Note 1: The Executive Order AAP submission must demonstrate a reasonable effort to comply with 41 CFR Part To do so, at a minimum, you must submit the following elements. Both the AAP and support data are essential to conduct the desk audit phase of the compliance review. If any of the following information is computerized, you may submit it in an electronic format. Executive Order AAP 1. An organizational profile prepared according to 41 CFR The formation of job groups (covering all jobs) consistent with criteria given in 41 CFR For each job group, a statement of the percentage of minority and female incumbents as described in 41 CFR For each job group, a determination of minority and female availability that considers the factors given in 41 CFR (c)(1) and (c)(2). 5. For each job group, the comparison of incumbency to availability as explained in 41 CFR Placement goals for each job group in which the percentage of minorities or women employed is less than would be reasonably expected given their availability as described in 41 CFR

13 Support Data 7. Copies of your Employer Information Report EEO-1 (Standard Form 100 Rev.) for the last three years. 8. Copies of your employment leave policies including, but not limited to, policies related to sick leave, medical leave, personal leave, leave for pregnancy, leave for pregnancyrelated conditions, leave for religious holidays and observances, Family Medical Leave, and other leaves of absence. Also, submit copies of your policies on accommodations for religious holidays and observances. If any of these leave and religious accommodation policies are a part of your employee handbook or manual, you may send the handbook/manual or a copy of the cover of the handbook/ manual, the Table of Content and relevant pages on leave and religious accommodations policies. 9. A copy of your collective bargaining agreement(s), if applicable. Include any other documents you prepared, such as policy statements, employee notices or handbooks, etc. that implement, explain, or elaborate on the provisions of the collective bargaining agreement. Support Data 7. Copies of your Employer Information Report EEO-1 (Standard Form 100 Rev.) for the last three years. 8. A copy of your collective bargaining agreement(s), if applicable. Please also include any other information you have already prepared that would assist us in understanding your employee mobility system(s), e.g., promotion, etc. 13

14 10. Information on your affirmative action goals for the immediately preceding AAP year and, where applicable (see below), progress on your goals for the current AAP year. For the immediately preceding AAP year, this report must include information that reflects: a. job group representation at the start of the AAP year, (i.e., total incumbents, total minority incumbents, and total female incumbents); b. the percentage placement rates (% goals) established for minorities and women at the start of the AAP year; and c. the actual number of placements (hires plus promotions) made during the AAP year into each job group with goals (i.e., total placements, total minority placements, and total female placements). For goals not attained, describe the specific good faith efforts made to achieve them. If you are six months or more into your current AAP year on the date you receive this listing, please also submit information that reflects progress on goals established in your current AAP year, and describe your implementation of action-oriented programs designed to achieve these goals. 9. Information on your affirmative action goals for the preceding AAP year and, where applicable (see below), progress on your goals for the current AAP year. See 41 CFR (b), -2.1(c) and For the preceding AAP year, this report must include information that reflects: (a) Job group representation at the start of the AAP year, (i.e., total incumbents, total minority incumbents, and total female incumbents); (b) The percentage placement rates (% goals) established for minorities and/or women at the start of the AAP year; and (c) The actual number of placements (hires plus promotions) made during the AAP year into each job group with goals (i.e., total placements, total minority placements, and total female placements). For goals not attained, describe the specific good faith efforts made to achieve them. If you are six months or more into your AAP year on the date you receive this listing, please also submit information that reflects progress on goals established in your current AAP, and describe your implementation of action-oriented programs designed to achieve these goals (see 41 CFR (c)). 14

15 11. Data on your employment activity (applicants, hires, promotions, and terminations) for the immediately preceding AAP year and, if you are six months or more into your current AAP year when you receive this listing, provide the information in 11(a) through (c) below for at least the first six months of the current AAP year. You should present these data by job group (as defined in your AAP) and by job title. a. Applicants and Hires: For each job group and job title, this analysis must consist of the total number of applicants and the total number of hires, as well as the number of African-American/Black, Asian/Pacific Islander, Hispanic, American Indian/Alaskan Native, White, and the number of female and male applicants and hires. For each job group and job title applicants for whom race and/or sex is not known, should be included in the data submitted. However, if some of your job groups or job titles (most commonly, entry-level) are filled from the same applicant pool, you may consolidate your applicant data (but not hiring data) for those job groups or titles. For example, where applicants expressly apply for or would qualify for a broad spectrum of jobs (such as Production, Office, etc.) that includes several job groups, you may consolidate applicant data. 10. Data on your employment activity (applicants, hires, promotions and terminations) for the preceding AAP year and, if you are six months or more into your current AAP year when you receive this listing, for the current AAP year. These data must be presented either by job group (as defined in your AAP) or by job title (see 41 CFR and 3.15). a. Applicants and Hires: the regulations at 41 CFR (b) and (d) require an analysis of your selection process, including whether the process eliminates a significantly higher percentage of minorities or women that nonminorities or women than nonminorities or men. For each job group or job title, this analysis must consist of the total number of applicants and the total number of hires, as well as the number of minority and the number of female applicants and hires. However, if some of your job groups or titles (most commonly, entry-level) are filled from the same applicant pool, you may consolidate your applicant data (but not hiring data) for those job groups or titles. For example, where applicants expressly apply for or would qualify for a broad spectrum of jobs (such as Production, Office, etc.) that includes several job groups, you may consolidate applicant data. 15

16 b. Promotions: For each job group and job title, provide the total number of promotions by gender and race/ethnicity, as well as the actual pool of candidates who applied or were considered for promotion by gender and race/ethnicity. Also, include a definition of promotion as used by your company. If it varies for different segments of your workforce, please define the term as used for each segment. c. Terminations: For each job group and job title, provide the total number of employee terminations by gender and race/ethnicity, as well as the actual pool of candidates who were considered for terminations by gender and race/ethnicity. Additionally, please identify employee terminations as either voluntary or involuntary, if available. When presenting terminations by job title, include the department and job group from which the person(s) terminated. b. Promotions: The regulations at 41 CFR (b) and (d) require an analysis of your promotion practices to determine if upward mobility of minority or female employees is occurring at a lesser rate (compared to workforce mix) than nonminority or male employees. For each job group or job title, this analysis must consist of the total number of promotions, as well as the number of minority and the number of female promotions. Please note that: (1) If you present promotions by job group, indicate how your company defines promotions and the basis on which the data were compiled (e.g., promotions to the job group, from and/or within the job group, etc), or (2) If you present promotions by job title, include the department and job group from which and to which the person (s) was promoted. c. Terminations: The regulations at 41 CFR (b) and (d) require an evaluation of the degree to which nondiscrimination policy is carried out with respect to employee terminations. For each job group or job title, this analysis must consist of the total number of minority and the number of female terminations. Please note that if you present terminations by job title, include the department and job group from which the person (s) terminated. 16

17 12. Employee level compensation data for all employees (including but not limited to full-time, part-time, contract, per diem or day labor, temporary) as of February 1st (i.e., the data as it existed on the most recent February 1st date). Provide gender and race/ethnicity information and hire date for each employee by job title, EEO-1 Category and job group, preferably in a single file. Provide all requested data electronically via or computer disc in Excel or PDF format, if available. a. For all employees, compensation includes base salary, wage rate, and hours worked. Other compensation or adjustments to salary such as bonuses, incentives, commissions, merit increases, locality pay or overtime should be identified separately for each employee. b. You may provide any additional data on factors used to determine employee compensation, such as education, past experience, duty location, performance ratings, department or function, and salary level/band/range/grade. c. Documentation and policies related to compensation practices of the contractor should also be included in the submission, particularly those that explain the factors and reasoning used to determine compensation. 11. Please provide annualized compensation data (wages, salaries, commissions, and bonuses) by either salary range, rate grade, or level showing total number of employees ** by race and gender and total compensation by race and gender. Present these data in the manner most consistent with your current compensation system. If you maintain the information in electronic format, please submit in that format. See 41 CFR (a) (1). You may also include any other information you have already prepared that would assist us in understanding your compensation system (s). Alternatively, under the voluntary guidelines for self-evaluation of compensation practices, 71 Fed. Reg (June 16, 2006), you have the option of seeking compliance coordination. If you so choose, you need not submit the annualized compensation data outlined in Item 11. However you must notify OFCCP that you seek compliance evaluation guidelines. ** for this purpose, the method used to determine employee totals by the contractor should be the same as that used to determine employee totals in the organizational profile for the AAP. 17

18 13. Support Data for Section 503 and Section 4212 (commonly referred to as VEVRAA). a. Copies of your Veterans Employment Report (VETS-100 and/or VETS-100A) for current year and the previous year. b. Copies of accommodation policies and records of accommodations granted under Section 503 and Section 4212 NOTES NOTE 1: If any of the requested information is computerized, you may submit it in an electronic format. Please use caution when submitting large electronic files. Check with the OFCCP Compliance Officer and your system administrator to ensure adherence to administrative and system guidelines. Note 2: According to the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is We estimate that the average time required to complete this information collection is hours per response, including the time for evaluating instructions, searching existing data sources, gathering and maintaining the data needed, and completing and evaluating the collection of information. Send any comments concerning this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C

19 Questions/Comments Rosemary Cox Senior Business Consultant 614/