I Get That All The Time! Frequently Asked Questions About AAP Development

Transcription

1 I Get That All The Time! Frequently Asked Questions About AAP Development A presentation of the BCG Institute for Workforce Development (BCGi) The following presentation is not to be construed as legal advice. For specific legal advice please consult your corporate counsel or a labor attorney.

2 Biddle Consulting Group Institute for Workforce Development (BCGi) BCGi Memberships (free): ~5000+ members / 13,000 HRCI credits to-date Online community Monthly webinars on EEO compliance topics EEO Insight Journal (e-copy) BCGi Platinum Membership (paid) Includes validation/compensation analysis books EEO Tools including those needed to conduct AI analyses EEO Insight Journal (e-copy and hardcopy) Access to the BCGi library of webinars, training materials, and much more

3 Contact Information Biddle Consulting Group, Inc. 193 Blue Ravine, Suite 270 Folsom, CA Marife Ramos Diana Sicari 3

4 Today s Agenda Frequently Asked Questions AAPs Applicants 503 (Disability)/4212 (Veterans) Potpourri 10 Common Requests During an Audit Best Practices Q&A 4

5 5 AAPs

6 FAQ: AAPs Q: Who should be included in our AAP? A: Each employee in the contractor s workforce must be included in an affirmative action program [emphasis added]. (41 CFR [d]). Employees must be included in the AAP where they work, except when: 6 The employee s manager works somewhere else The establishment has fewer than 50 employees: o o o AAP that covers the location AAP of the personnel function that supports the location AAP of the official to whom the employee reports Selection decision is made somewhere else The employer wants to develop a Functional AAP

7 FAQ: AAPs Q: Who should be included in our AAP? (Cont.) A: All employees who are active on the payroll as of the snapshot date Include all full-time and part-time employees Q: What about temporary employees? A: If they are an employee of the contractor (i.e., on the payroll), then include. If not, exclude. 7

8 FAQ: AAPs Q: What about interns? A: Interns are NOT employees if ALL are true: The internship is for training purposes The training is primarily for the benefit of the intern rather than the organization The intern does not displace any employee The organization does not derive immediate advantage from the intern Intern is not entitled to a job after internship Employer and intern agree that there is no wage for time spent 8

9 FAQ: AAPs Q: What about inbound/outbound employees? A: To be exempt from the inclusion in the AAP, the employees must be hired AND work outside the US (41 CFR ) Include: Hired in US; work abroad Hired abroad; work in the US 9

10 FAQ: AAPs Q: How do I determine the appropriate external and internal factors? A: External availability is determined by identifying the recruitment areas from which the employer can reasonably recruit qualified workers. Internal availability refers to those who are promotable/transferrable into the target job/job group. 10

11 FAQ: AAPs External/Internal factors (cont.) First, determine the external recruitment area(s) for each job group: Local (city, county[ies]); and/or Other area(s) besides local (region, state, national) Then, determine the jobs/job groups from where promotions/transfers into the target job group would typically come from (i.e., feeders ) 11

12 FAQ: AAPs External/Internal factors (cont.) Last, determine the weights that should be applied to external and internal factors. The employer should ask the following question: Out of 100 hypothetical movements into this job group, what number do I expect to come from external recruitment area(s) (i.e., local or other than local ), or an internal pool? 12

13 FAQ: AAPs External/Internal factors (cont.) Two methods to determine relevant labor areas and the factor weights for each job group: Ask a knowledgeable staff member (hiring manager, recruiter, etc.) Use historical hires (external) and promotions (internal) data For example: 100 placements with 75 hires and 25 promotions Factor weights will be 75% external and 25% internal 13

14 14 Applicant Data

15 FAQ: Applicants Q: Who should be included in the applicant data? A: Follow the Internet Definition of an Applicant Individual Submits Expression of Interest. Contractor Considers Individual for a Particular Position. Individual Possesses Basic Qualifications. Individual Does NOT Self-Eliminate Before Offer is Made 15

16 FAQ: Applicants Q: Can I exclude applicants who declined the offer? A: Refer to the fourth prong of the Internet Definition of an Applicant: Individual Does NOT Self-Eliminate Before Offer is Made Technically, those who declined an offer should be included. However, employers can argue that those who declined the offer, self eliminated themselves out of the selection process (i.e., not interested) and therefore, should be excluded. 16

17 FAQ: Applicants Q: Can I exclude applicants who declined the offer? (Cont.) Be careful! Before you decide whether to include or exclude those who were offered a job, analyze the data first. Ask the question: Will an offers analysis get rid of the adverse impact? 17

18 FAQ: Applicants Q: When recruiting for a high volume position we opened one requisition, but ended up hiring into 5 different positions. How do we handle the applicant file? A: First, avoid this practice! Best practice is to open different requisitions for different positions. This ensures that the employer will know exactly who are the applicants for each position. 18

19 FAQ: Applicants Q: Opened one requisition, but hired into 5 different positions? (cont.) Data (and analysis) must reflect reality. If all 5 jobs are within the same job group and there is no adverse impact Technically, the job group analysis is correct. If jobs belong to different job groups Technically, everybody in the applicant pool was considered for each of the 5 jobs therefore, the applicant pool must be duplicated for each unique job group 19

20 Adverse Impact FAQ: Applicants Q: Opened one requisition, but hired into 5 different positions? (cont.) If jobs are in the same job group but there is adverse impact Conduct analysis (adverse impact) by job title only if the selection process is distinct and separate for each job title within the impacted job group. Conduct step analysis (documentation/disposition code is the key): Title VII of 1964/1991 Civil Rights Act An unlawful employment practice based on disparate impact is established under this title only if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact Translation: Employers must be able to identify who took/passed/failed each step within a selection process.

21 503 (Disability)/4212 (Protected Veterans) 21

22 FAQ: 503/4212 Q: If the applicant (pre-offer and post-offer) does not self ID as an IWD but the HR Dept learns that the individual has a qualified disability during the employment relationship, can the company document the employee as an IWD? A: There is no clear guidance on this; however, for utilization analysis purposes, the OFCCP published the following in their FAQ 22

23 FAQ: 503/ How should non-responses to the invitation to self-identify as an individual with a disability be treated when conducting the utilization analysis? The regulations require contractors to conduct an annual utilization analysis to determine the representation of people with disabilities in each job group, or if it has 100 or fewer employees, in its workforce as a whole. To calculate the percentage of a job group (or workforce) that is comprised of people with disabilities contractors should use the same methodology used to calculate the percentage of a job group (or workforce) that is comprised of any other specific demographic group. Specifically, contractors should compare the number of individuals identified as having a disability to the total number of employees in the job group. Non-responses should be counted solely in the job group (or workforce) total, unless the contractor has actual knowledge that a particular non-responsive individual(s) has a disability. The contractor may count as an individual with a disability any individual who it actually knows to have a disability, whether or not the individual chose to self-identify [emphasis added].

24 FAQ: 503/4212 Q: Can I update veteran status if pre-offer they identified as Yes, but post-offer as No? A: Per the OFCCP s FAQs, yes, you may update the veteran status for purposes of compliance with the new VEVRAA regulations. Q: What if they ID as a disabled veteran but not an individual with a disability? Can I update their disability status? A: There is no specific guidance that prohibits contractors from doing this. However, BCG recommends that contractors do not update their status unless the disability is apparent and known. 24

25 FAQ: 503/4212 Q: We are a small company. Are we expected to install accessibility features into our application system (for example: TDD, Braille, etc.)? A: Only if you can. The easiest and least costly way to provide accommodation is to ensure that there is a prominent notice in the on-line application system, paper application, and/or job announcement on how applicants can request for accommodation/assistance. It should include the name of the person to contact, the phone number, address, and the process for requesting accommodation. 25

26 FAQ: 503/4212 Q: Are we expected to install accessibility features into our application system (for example: TDD, Braille, etc.)? (cont.) It should be noted that employers cannot refuse to provide accommodation simply because it entails some costs (financial or administrative). The employer is still required to find/provide an accommodation that will not cause undue hardship to the company. 26

27 27 Potpourri

28 FAQ: Potpourri Q: What is E-Verify and should we participate? A: It is an internet-based system that allows businesses to check the eligibility of individuals to work in the U.S. It does not replace I-9 forms. Contractors are required to participate in E-Verify. 28

29 FAQ: Potpourri Q: We are being asked to provide a letter of compliance from the OFCCP which proves that we have an AAP, where do we get it? A: The OFCCP does not issue a letter compliance unless the contractor have undergone and successfully closed a compliance review. To comply, the contractor may show their completed AAP (without the technical reports) or have the contractor s counsel send a letter that certifies that the contractor has a compliant AAP. 29

30 FAQ: Potpourri Q: We received a request for additional documents and data during an audit, but was only given 5 days to respond. What should we do? A: Immediately calling for an extension is not always the best idea. 30 Gather the easily accessible data/documents first. Submit them on time and let the OFCCP know that you are still working on the other data/documents and will submit them as soon as they become available (giving a specific date is ideal).

31 FAQ: Potpourri Q: For adverse impact analysis, is the group with the highest selection rate always the appropriate reference group? A: No, the group with the highest selection rate is not ALWAYS the appropriate reference group. White Black Hisp Asian NatAm Total Applicants Hires Sel. Rate 40.0% 28.6% 31.3% 60.0% 100.0% 37.5% Native American = 5/280 = 1.79% 31 Asian = 25/280 = 8.93%

32 FAQ: Potpourri Q: Adverse impact highest rate (cont.) A: CFR A(2)(a) and UGESP Q&A # Q16. Should adverse impact determinations be made for all groups regardless of their size? A. No. Section 15A(2) calls for annual adverse impact determinations to be made for each group which constitutes either 2% or more of the total labor force in the relevant labor area, or 2% of more of the applicable workforce. Thus, impact determinations should be made for any employment decision for each group which constitutes 2% or more of the labor force in the relevant labor area. For hiring, such determination should also be made for groups which constitute more than 2% of the applicants; and for promotions, determinations should also be made for those groups which constitute at least 2% of the user's workforce.

33 Potpourri Questions Q: Based on the new regulations surrounding EO (sexual orientation and gender identity) what should my new tagline be in my job postings? A: Per the OFCCP: Not OK: EOE or An equal opportunity employer Technically not OK, but likely not to get you in trouble, especially when space is limited: EOE/disability/vet OK: An equal opportunity employer/disability/vet Best: All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status. 33

34 Potpourri Questions Q: Our company has several subsidiaries, but I do not think these locations are connected to our federal contract. How do I ask for exemption from an audit for these subsidiaries? A: The OFCCP uses a single-entity test to determine if the all the businesses can be considered as one for the purposes of OFCCP jurisdiction: the entities have common ownership; 2. the entities have common directors and/or officers; 3. one entity has de facto day-to-day control over the other through policies, management or supervision of the entity's operations; 4. the personnel policies of the entities emanate from a common or centralized source; and 5. the operations of the entities are dependent on each other, e.g., services are provided principally for the benefit of one entity by another and/or both entities share management, offices, or other services.

35 Potpourri Questions Q: Single-Entity (Cont.) A: Not all five factors must be met to be considered a single entity. Per the OFCCP s FAQs, there is growing recognition that centralized control over labor relations and personnel functions is the most important factor. 35 They offer this example: Say that two entities are under common ownership, with a common board of directors, and have a central corporate office that determines and issues personnel policy for both entities, and generally manages most personnel-related issues for both entities. At the same time, the operations of the two entities are not particularly dependent on each other. Despite the fact that one of the factors did not apply, the four factors that did outweigh the one that did not, so that the two entities being analyzed will most likely be considered a single entity.

36 Top 10 Audit Requests 36

37 Top 10 Audit Requests 10. Proof of job listings with the State Employment Service Delivery System (ESDS) 9. Proof of proper notifications EO Clause Notice to labor unions/subcontractors 8. Proof of online accessibility Accommodation policy/process (incl. designated person and contact information) Link to EEO is Law poster 37

38 Top 10 Audit Requests 7. Copies of self ID forms, job announcements, applications Proper format/categories BQs, tests, background checks 6. Documentation of review of personnel processes 5. Documentation of review of physical and mental qualifications 38

39 Top 10 Audit Requests 4. Documentation of accommodations Policies (including leave) Logs (including requests, results, supporting documentation) 3. Documentation of Outreach and Recruitment Efforts Primarily (but not necessarily) for veterans and individuals with a disability Results of the Evaluation of Effectiveness Description of activities, name, contact information What worked well. What didn t. What changes are being made. Failure to meet a goal/benchmark is not a violation. Failure to try is. 39

40 Top 10 Audit Requests 2. Personnel Activity Data Including data for all minority groups OFCCP is primarily running comparisons to the group with the highest rate (ala Uniform Guidelines) Provide unknowns (OFCCP looking for potential flaws in the process... i.e., a low response rate) If impact... be prepared to provide detailed applicant data (with dispositions), previous year s job group headcounts, termination logs, promotion reasons, etc. 1. Compensation Data 40

41 41 Best Practices

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47 47 Questions