What Would You Do? Play Along As We Address Real World Affirmative Action Dilemmas

Transcription

1 What Would You Do? Play Along As We Address Real World Affirmative Action Dilemmas Lynn Clements, Esq. Director of Regulatory Affairs Beth Ronnenburg, SPHR, SHRM-SCP - President Berkshire Associates Inc. August 3, 2016

2 Legal Disclaimer This presentation was prepared by Berkshire for participants educational use. Berkshire is a consulting firm, not a law firm, and therefore, does not provide legal advice or services. Participants should consult with counsel before implementing any strategies or actions discussed in this presentation and should not consider this presentation, or related materials, to be legal advice.

3 Audience Response System Instructions All questions are multiple choice. Choose ONE answer. Select the number on your keypad that corresponds with your answer. If you want to change your answer prior to the end of the polling time, select a new answer to overwrite your old one. The results are 100% anonymous. We are not keeping track of who has which keypad to associate an answer with a person.

4 Years of AAP Experience How many years of affirmative action planning experience do you have? % 80% 60% 40% 20% 0% 0% 0% 0% 0%

5 Contractor Size How many U.S. employees are in your workforce? , ,001-10, ,001 25, , % 80% 60% 40% 20% 0% 0% 0% 0% 0% 0%

6 Audit Activity How many open OFCCP audits do you have? 100% 1. None 80% % % 20% % 0% 0% 0% 0% 0% 0% None

7 IWD and PV Outreach and Recruitment

8 Section 503 & VEVRAA Outreach Evaluation CFR F(3) & CFR F(3) Assessment of external outreach and recruitment efforts The contractor shall, on an annual basis, review the outreach and recruitment efforts it has taken over the previous twelve months to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities (protected veterans). The contractor shall document each evaluation, including at a minimum, the criteria it used to evaluate the effectiveness of each effort and the contractor's conclusion as to whether each effort was effective. Among these criteria shall be the data collected pursuant to paragraph (k) of this section for the current year and the two most recent previous years. The contractor's conclusion as to the effectiveness of its outreach efforts must be reasonable as determined by OFCCP in light of these regulations. If the contractor concludes the totality of its efforts were not effective in identifying and recruiting qualified individuals with disabilities (protected veterans), it shall identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations.

9 Section 503 & VEVRAA Outreach Evaluation How are you tracking Section 503 & VEVRAA outreach and recruitment efforts? 1. Paper files 2. Homegrown electronic system 3. Vendor provided system 4. I m not sure/not tracking

10 Section 503 & VEVRAA Outreach Evaluation 100% 80% 60% 40% 20% 0% 0% 0% 0% 0% Paper files Homegrown electronic system Vendor providedi m not sure/not system tracking

11 Section 503 & VEVRAA Outreach Evaluation How are you evaluating your Section 503 & VEVRAA outreach and recruitment efforts? 1. By source 2. By individual activity 3. Both 1 & 2 4. I m not sure/not evaluating

12 Section 503 & VEVRAA Outreach Evaluation 100% 80% 60% 40% 20% 0% 0% 0% 0% 0% By source By individual activity Both 1 & 2 I m not sure/not evaluating

13 Section 503 & VEVRAA Outreach Evaluation How are you evaluating your Section 503 & VEVRAA outreach and recruitment efforts? 1. Quantitative (referrals) 2. Qualitative (descriptive) 3. Combination of 1 & 2 4. I m not sure/not evaluating

14 Section 503 & VEVRAA Outreach Evaluation 100% 80% 60% 40% 20% 0% 0% 0% 0% 0% Quantitative (referrals) Qualitative (descriptive) Combination of 1 & 2 I m not sure/not evaluating

15 Things to Consider Quality vs quantity of sources or activities There is no requirement for a quantitative evaluation other than to consider 44k data analytics Be careful of the credence you give to Source in your ATS if it is being entered by the job seeker Requirements if you deem outreach ineffective

16 Sample Section 503 & VEVRAA Outreach Evaluation

17 Sample Section 503 & VEVRAA Outreach Evaluation

18 Analyzing Personnel Activity

19 Annual Personnel Activity Analysis 41 CFR (b) Additional required elements of affirmative action programs Identification of Problem Areas. The contractor must perform in-depth analyses of its total employment process to determine whether and where impediments to equal employment opportunity exist. At a minimum the contractor must evaluate: (2) Personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions) to determine whether there are selection disparities; (4) Selection, recruitment, referral, and other personnel procedures to determine whether they result in disparities in the employment or advancement of minorities or women;

20 Statistically Significant Selection Disparities What is the first step you take when an analysis of your personnel activity reveals statistically significant impact by job group (JG) in your annual AAP? 1. Run a step analysis 2. Run adverse impact by job title within the JG 3. Have the recruiter review the selections to ensure they can be defended 4. I m not sure

21 Statistically Significant Selection Disparities 100% 80% 60% 40% 20% 0% 0% 0% 0% 0% JG step analysis AI by job title Recruiter review Not sure

22 Federal Contract Compliance Manual (FCCM) When a CO identifies a job group with an adverse IRA... the CO will ask the contractor to furnish the adverse impact determinations prepared during the evaluated period as a part of its in-depth analyses for the job titles that fall within the job group.

23 Uniform Guidelines on Employee Selection Procedures (UGESP) Section 4(c): Information on impact If the information called for by sections 4A and B of this section shows that the total selection process for a job has an adverse impact, the individual components of the selection process should be evaluated for adverse impact.

24 Best Practices Prioritize potential problem areas Entry level jobs, locations on CSAL, high significance or shortfalls Look for patterns among job groups, specific races, steps in process, etc. Confirm your disposition codes allow you to complete the appropriate analyses Ensure tests and qualification standards are jobrelated and validated for YOUR jobs

25 BALANCING RECRUITMENT AND APPLICANT TRACKING

26 Hiring Discrepancies In preparing your annual AAP, you find that there was a requisition for an Accountant I that resulted in two hires with different job titles. One person was hired as an Accountant I and another as an Accountant II. How would you handle this? 1. Leave as is 2. Create a new requisition and move the Acct II hire only into that requisition 3. Create a new requisition and move the Acct II hire into that requisition along with the pool from the first requisition 4. I m not sure

27 Hiring Discrepancies 100% 80% 60% 40% 20% 0% 0% 0% 0% 0% Leave it as is New req w/acct II hire only New req w/acct II hire & full pool Not sure

28 Things to Consider Frequency of occurrence Are placements in same or different job groups, plan years, and/or plan locations? Availability of data to determine which candidates met basic qualifications for higher level position VEVRAA job listing requirement

29 INCREASING EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES

30 IWD Utilization Goal What percentage of your workforce currently identifies as an individual with a disability? 1. Less than 2% 2. Between 2% % 3. 7% or more 4. I m not sure

31 IWD Utilization Goal 100% 80% 60% 40% 20% 0% 0% 0% 0% 0% Less than 2% Between 2% % 7% or more I m not sure

32 IWD Utilization Goal Are you considering individuals who declined to self-identify as an IWD in your utilization analysis if they have requested a reasonable accommodation? 1. Yes 2. No 100% 80% 60% 40% 20% 0% 3. I m not sure 0% 0% 0% Yes No I m not sure

33 Things to Consider Timing of voluntary self-identification Tracking of data in ATS and HRIS Can you identify who did not respond and/or who declined to identify? Use of high level disability champions, ERG, OFCCP video Whether and how to include individuals who requested reasonable accommodation in IWD utilization analysis

34 RESPONDING TO OFCCP REQUESTS FOR EMPLOYEE INTERVIEWS

35 OFCCP Manager Interviews OFCCP has requested to interview employees in a Manager job title about their pay. OFCCP tells you that a company representative is NOT entitled to be present. How do you respond? 1. Allow OFCCP to interview managers without representation 2. Do not allow OFCCP to interview managers without representation 3. I m not sure

36 OFCCP Manager Interviews 100% 80% 60% 40% 20% 0% 0% 0% 0% Allow OFCCP to interview managers without representation Do not allow OFCCP to interview managers without representation I m not sure

37 Federal Contract Compliance Manual (FCCM) When the CO conducts interviews with upper level managers and directors that speak for or make decisions on behalf of the company, the contractor may have an attorney or other representative present. The exception to this is when the manager is not speaking for management. An example may be when the manager is a member of a potentially affected group speaking about the potential discrimination or his or her personal experience or acting as a whistleblower.

38 Best Practices Discuss scope of manager interviews with OFCCP Presence of company representative may be negotiable Probe to confirm that interviews will not raise questions that involve the employee s managerial role Prepare managers about the difference between being asked questions as an employee versus as a manager Inform managers of their right to a representative

39 Questions To obtain a copy of the presentation with the results included: Give a Berkshire staff member your business card and/or; bethr@berkshireassociates.com or lynnc@berkshireassociates.com asking for a copy of the presentation

40 About Berkshire Associates For over 30 years Berkshire has offered services and software to overcome HR challenges. Affirmative Action Plan Preparation Services OFCCP Audit Support Adverse Impact Analyses BALANCEaap Software Applicant Management Compliance Assessment BALANCEtrak Software Compensation Base Pay Structures Market Analysis Salary Equity Analyses Training Affirmative Action BALANCEaap Collaborative Plan Development Webinars & Private Training