Workforce Compliance and Diversity eBook - Talent Management...

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Workforce Compliance and Diversity eBookA collection of articles from industry experts on evolving compliance and diversity topics that will become increasingly important throughout 2016.

©2016 PeopleFluent. All Rights Reserved www.PeopleFluent.com

http://www.peoplefluent.com

1 Our Authors

2 Effective Recruiting Strategies that Meet Company Goals and Federal Regulations

4 Recruiting and Hiring – Harmful Assumptions

5 Starting Pay – The Often Overlooked Compliance Risk in Talent Acquisition

7 Job Steering – Warning: Dangerous Intersection Ahead!

Job Steering Infographic

12 Hiring Process Risks – A Compliant Hiring Process

19 Performance Appraisals – The Hidden Risks

13 Video Recruiting – The Candid Camera of Compliance Risks

Video Recruiting Infographic

20 Playing Nice in the Compliance Sandbox – The Value of Internal Partnerships

22 Data Visibility for Your Organization – Compliance and Diversity Practices

23 Compliant Documentation – Supporting Your Talent Management Decisions

25 Diversity, Inclusion, and Compliance – Similarities, Differences, and How They Can Work Together

27 Key Questions to Assess Your OFCCP Audit Readiness

Table of Contents

Workforce Compliance and Diversity eBook 1

Our Authors

Dr. Lisa Harpe, is a Principal Consultant at PeopleFluent Research Institute. She provides statistical and technical services to organizations regarding hiring, performance appraisal, promotion, and other Human Resource systems. She has a Ph.D. in Industrial Organizational Psychology.

Dr. Murray Simpson is Manager, Consulting Services for PeopleFluent Research Institute. He manages a team of professionals who evaluate allegations of, and estimate damages for, discriminatory employment practices and wage-and-hour law violations. He also serves as a testifying or consulting expert in lawsuits, and helps employers assess regulatory compliance and identify legal risks.

Roy Zambonino is a Senior Solutions Consultant for PeopleFluent’s Workforce Compliance and Diversity Solutions Division. As a former project manager, Zambonino is able to draw upon the best practices he has observed over the last 17 years helping to implement Affirmative Action and Diversity programs for companies ranging in size from a few thousand to several hundreds of thousands of employees across many industries including retail, construction, healthcare and publishing.

Rosemary Cox is a Principal Business Consultant with PeopleFluent, where she is a senior consulting resource for clients of all sizes regarding Affirmative Action planning, preparation, and compliance. She also conducts training and development courses, workshops and webinars at PeopleFluent for internal staff, existing clients, and potential clients. She has 18 years of experience in the fields of Affirmative Action Programs and compliance reporting.

Julia Méndez is a Principal Business Consultant for PeopleFluent’s Workforce Compliance and Diversity Solutions division. Méndez oversees the training programs for customers; she also creates content and delivers training in areas such as equal employment opportunity, affirmative action compliance, and diversity. She has 20 years of experience in assisting clients through OFCCP compliance reviews.


Effective Recruiting Strategies that Meet Company Goals and Federal Regulations

By Dr. Lisa Harpe

“How did you hear about us?” The answer to this question reveals a great deal about the effectiveness of your recruitment efforts, in terms of your good-faith efforts to recruit and hire a diverse workforce. Organizations fighting to survive in today’s employment environment simply want to recruit and hire the best workforce related to their organizational goals, but need to ensure that efforts are compliant and/or legal. Are you confident that your recruiting efforts meet these requirements?

Why Does It Matter? Under the Obama administration, federal agencies are tasked with ensuring that there is equal opportunity in all facets of the workplace and are digging deep to verify fair and equitable employment practices. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) evaluates employment practices for federal contractors. Most employers with 15 or more employees must abide by the Equal Employment Opportunity Commission (EEOC), which seeks to eliminate discrimination against job applicants or employees. One particular point of interest has been an organization’s proof of good-faith efforts and development of action-oriented programs in areas within the organization where issues, or potential issues, with regard to compliance with various EEO laws are apparent. Whether managing an affirmative action plan or a diversity plan, good-faith efforts focus generally on three areas: 1) outreach; 2) recruitment; and 3) training. Recruitment efforts have been an area where many companies fall short of proving good-faith efforts. This often times is due to the lack of communication and direction to recruiters regarding placement goals.

Getting Serious About Measuring the Effectiveness of Recruiting As the saying goes “Garbage in, garbage out.” If you are serious about measuring the effectiveness of your recruiting sources, you should take steps to enhance the integrity of this data to conduct meaningful analyses.

1. Consider asking job seekers who apply to a specific requisition the question “How did you FIRST hear about THIS job?” rather than “How did you hear about us?” (e.g., someone may have heard about the job on Monster.com but applied via the career website).

2. When asking a job seeker to indicate a recruiting source, provide clearly worded, detailed response options. For example, use “job posting sites such as Monster or Career Builder” rather than “job posting sites.”

3. Include a separate item in the list of recruiting sources for social networking sites with a drop down to provide more specific information such as Facebook, Twitter or LinkedIn. Social networking as a recruiting source has received considerable scrutiny due to legal concerns. It may be informative to examine the effectiveness and impact of social networks, in particular, as a recruiting source.


4. If your company undertakes any special recruiting initiatives, include these in the options to facilitate their evaluation.

5. Consider getting rid of “other, please specify” as a response option. Job seekers often select the “other” category but then provide a specific response that is covered by one of the predetermined drop down answers.

6. Ask job seekers to identify the recruiting source more than once, perhaps at the time of application and then again during a phone screen or other personal interaction. A live person can probe and enhance the accuracy of the information. (Make sure that any updated information is added to the job seeker’s profile.)

7. In addition to accurate data on recruiting source for each job seeker for a given job, you need data on each job seeker’s race and gender and a final disposition which indicates how far he/she proceeded in the hiring process and what happened to him/her.

I Have the Right Data. Now What? You now have the means to look at the source of job seekers (i.e., those who indicated interest in the position but may or may not be remotely qualified), applicants (i.e., job seekers who meet Basic Qualifications (BQs), offers, and hires. Each of these categories can be further broken down by race and gender to evaluate the success of each recruiting source as it relates to diversity efforts.

Perhaps you recruit lots of minorities and females. You may have a diverse pool of job seekers but, if they are not the best qualified job seekers, you may end up with adverse impact in your recruiting or hiring process. Adverse impact occurs when you hire disproportionately few minorities or females compared to the race or gender composition of your applicant pool. For example, let’s say that your recruiters focus on recruiting females for engineering positions. As a result, 50% of the pool of job seekers for engineering positions is female. However, the pool of basically qualified job seekers for the engineering position is only 25% female and the pool of the most qualified job seekers is only 10% female. Your recruiting efforts are successful if measured by the gender composition of the pool of job seekers but not if measured by the pool of basically qualified or most qualified job seekers. In addition, there may be evidence of adverse impact in the hiring process and you may face legal challenges.

By looking at the source of qualified females and minorities, you can turn your attention to those sources that bring in the most qualified minorities and females, which is the only way to truly increase the diversity of your workforce. The goal is not to just get as many minorities or females to apply as possible. The goal is to hire the most qualified applicants and find that they also happen to be minorities and females. Certain sources may be good sources of minorities and females, but very different sources may be the best source of female or minority hires.

This is only the tip of the iceberg when it comes to the types of analyses and information available to evaluate your recruiting efforts. With a little effort on the front end to set up your applicant tracking system and online application process in a manner conducive to collecting certain data, you can have a wealth of information at your fingertips. With the right data, all stakeholders involved in the recruiting process are enabled to make informed decisions, while appropriately allocating time and effort based on a specific plan to meet the company’s goals, all the while avoiding legal risks.


Recruiting and Hiring – Harmful Assumptions

By Dr. Lisa Harpe

Does your organization have the data to measure the effectiveness of its recruiting efforts? Or, of its hiring process? Does your organization maintain records in compliance with anti-discrimination regulations? Most organizations are fighting to survive in today’s employment environment, yet hazily navigate recruiting and hiring strategies without a solid record-keeping and reporting strategy.

A well-documented process and decent Applicant Tracking System (ATS) do not guarantee compliance by themselves. Assuming your organization’s hiring process is compliant without an internal assessment is dangerous. If an organization does not thoroughly evaluate the hiring process, it can lead to costly repercussions and loss of resources.

Hiring Policies and Procedures: Reliability and Validity When it comes to recruiting and hiring, an organization should consider the reliability and validity of its processes. Reliability refers to consistency. Do job seekers go through the same process? Do recruiters and hiring managers take the same steps and evaluate job seekers in the same manner? Well-documented policies and procedures are a major contributor to the reliability of recruiting and hiring processes.

Documentation should include: Who will be considered? How will job seekers be considered? What steps will job seekers, recruiters and hiring managers undertake? What steps and results will be documented, and how? A good ATS can also contribute to reliability. Does your ATS have the functionality required to meet the record-keeping and reporting requirements of your organization, and of government agencies?

Reliability is a prerequisite to validity. Validity refers to effectiveness. The goal of a recruiting and hiring process is to find the best individuals to fill open positions and to do so in compliance with anti-discrimination regulations. The most well-documented system and the most “compliant” ATS in the world does not guarantee effectiveness or compliance. Recruiters and hiring managers may or may not adhere to stated policies and procedures, and they may or may not use an ATS in a manner that complies with record-keeping and reporting requirements.

A hiring process review allows an organization to evaluate the reliability and validity of its recruiting and hiring processes. HR technology is a beneficial tool, but companies need to ensure correct usage for effective risk management. In the event of an audit or investigation, the time required for reconciling data is tremendous if the organization has not conducted a preliminary review. Unprepared federal contractors experience a drain of time, shortage of human resources and a multitude of financial risks.

Another thought to consider: Without a hiring review, an organization lacks visibility into adversely impacted groups. This can lead to legal vulnerabilities and a loss of viable talent in diversity of skill, thought and experience.


A Framework for Your Hiring Process Assessment The undertaking of an internal hiring process review may be daunting, but having a framework will help get you started:

1. Document your policies and procedures

2. Define and set up systems to identify job seekers who meet the definition of Internet Applicant

3. Analyze the assignment of statuses and disposition codes for each step in the hiring process

4. Evaluate whether the hiring process as a whole, and whether each step in the process, individually or adversely impacts members of a protected class based on, for example, race or gender

Conclusion Take time to ensure that you have comprehensive policies and procedures. Make the effort on the front-end to set up your ATS and online application process. Finally, take the time to conduct a comprehensive review of your hiring process to save valuable resources and bolster your defenses against risks.

Starting Pay – The Often Overlooked Compliance Risk in Talent Acquisition

By Dr. Murray Simpson

When employers assess the compliance of their recruiting and hiring processes with anti-discrimination laws, the scrutiny usually focuses on whether outreach and recruiting efforts yield diverse slates of applicants (“good faith efforts”) and whether selection decisions at one or more steps along the way screen out disproportionately many applicants of a given gender or race (“adverse impact”). Far less scrutiny is applied to the question of whether disparities by gender or race persist in the starting pay rates of newly hired employees.

The Risks Employers who fail to address this question do so at their own peril, exposing themselves to potential claims of discrimination under the Ledbetter Fair Pay Act (LFPA). An amendment to Title VII of the Civil Rights Act, the LFPA was the first legislative bill signed by President Obama upon taking office in 2009. It codifies into law the “continuing” or “repeated” violations theory of pay discrimination. Under this theory, each paycheck that delivers compensation tainted by past discrimination repeats the original discriminatory decision, even if that initial decision was made many years ago.

For example, a female employee hired five years ago may prevail in bringing a claim of discrimination under the LFPA if she can show that her starting pay rate was set in a discriminatory manner based on her gender, even when this discriminatory pay decision falls well outside the 180-day limitations


period for filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Why? Because under the LFPA, the 180-day limitations period is renewed every time the employee receives a paycheck tainted by the discriminatory decision made at the time of hire. In other words, each paycheck “continues” or “repeats” the discrimination of the past, thereby bringing it up to the present.

How Do I Mitigate These Risks? To mitigate the risk of such claims, an employer can analyze starting pay decisions for disparities by gender or race. To do so, one typically examines such decisions over a multi-year period, usually spanning three to five years, unless there is a high volume of hiring decisions made in a shorter time frame. Key steps in the analysis are as follows:

1. Group employees properly for comparison, doing so with regard to the time of hire, the jobs to which the employees were assigned upon hire, and, if possible, the qualifications of the employees to hold these different jobs.

2. Compare the starting pay rates of the women in each comparison group to those of the men using an appropriate statistical model (which in statistical jargon is often of the “multi-variable” type such as a regression or rank sum model).

3. Determine whether any patterns of pay disparity persist across multiple comparison groups, for example, by year of hire, by hiring manager, by department, or across the company as a whole.

4. Place comparison groups in descending order of their contributions to such patterns, thereby providing an ordered list for prioritizing further investigations and identifying where remedial actions, such as managerial training in setting starting pay rates, may be warranted.

5. Repeat the analysis using employee race instead of gender.

How Sound Are My Defenses?If the steps above uncover any statistically significant disparities in starting pay rates by gender or race, an employer may attempt to argue that the disparities are justified on the basis of one or more factors omitted from the analysis because they are not measurable or not recorded in the applicant tracking or human resource information systems. Examples include differences in salary negotiation skills, levels of pay at previous employer, years of prior relevant experience, and levels of educational attainment.

Some of these justifications likely will be challenged by employees asserting claims of discrimination, particularly if the Paycheck Fairness Act is passed into a law. This bill, twice introduced and rejected by Congress, is strongly supported by President Obama. One section of the bill requires employers to show pay disparities are based on bona fide factors related to job performance and genuine business requirements. As such, passage of the bill would make it more difficult for employers to defend disparities in starting pay rates solely on the basis of allegedly stronger negotiating skills of men compared to women or the higher salaries of men at their previous employers.

On the other hand, differences in years of prior relevant experience directly influence the knowledge, skills and abilities of a newly hired employee to perform his or her job. Depending on the type of


job, the same can be said for differences in educational attainment and other relevant training. Most employers, however, do not document these measures in their electronic recordkeeping systems and, therefore, face a heavy burden of manually sifting through paper files when needing this information to defend their starting pay decisions. The solution is relatively simple: Modify the electronic recordkeeping system to allow the entry at time of hire of the new employee’s years of prior relevant experience and level of educational attainment. Doing so makes these critical pieces of data readily available for any pay equity analyses conducted in the future.

Remain VigilantIn Greek and Roman mythology, a three-headed dog named Cerberus stands guard at the entrance to the underworld, restricting the living from entering and the dead from leaving. Don’t forget that the sentry standing guard over compliant recruiting and hiring processes likewise has three heads: one for good faith efforts, a second for fair selection decisions, and a third for equitable starting pay decisions. Focusing all attention on the first two heads leaves you vulnerable to being bitten by the third for an unforeseen claim of pay discrimination. Be vigilant and keep all three heads clearly in sight.

Job Steering – Warning: Dangerous Intersection Ahead!

By Dr. Murray Simpson

When considering the risks of discrimination claims, talent acquisition professionals usually focus attention on whether one or more steps in the recruiting or hiring process screens out disproportionately many applicants of a given gender or race. The concern here is on inequitable selection decisions. Compensation professionals, on the other hand, focus their attention on whether employees who perform similar work with similar skills and qualifications are paid differently because of their gender or race. Their concern is with inequitable pay decisions. These concerns intersect when selection decisions are made in such a way that they generate inequities in pay by gender or race. Job steering represents such an intersection.

What is Job Steering? Job steering occurs when an employer channels applicants or employees to lower- or higher-paying jobs based on characteristics protected under anti-discrimination laws, such as gender or race. An employer may face charges of discrimination if it directs Hispanic job seekers to apply only for certain jobs, hires qualified female employees disproportionately into cashier positions rather than higher-paying sales associate positions, or informs only qualified white employees of opportunities to post for particular promotions.

Why Job Steering Risks May be Long-LastingEmployers who engage in job steering expose themselves to a long-lasting risk of discrimination charges. Why? Because the Ledbetter Fair Pay Act (LFPA) of 2009 codifies into law the “continuing” or “repeated” violations theory of pay discrimination. Under this theory, each paycheck that delivers compensation tainted by the discriminatory steering of an employee to a lower-paying job repeats the original discriminatory action, even if the steering took place many years ago. More specifically, under the


LFPA, the 180-day limitations period for filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) is renewed every time the employee receives a paycheck tainted by the job steering that took place in the past. Consequently, each paycheck “continues” or “repeats” the past discrimination, thereby bringing it up to the present and creating a long-lasting risk of discrimination charges being filed against the employer.

The Risk for Federal Contractors: OFCCP EnforcementFederal contractors should be particularly vigilant in examining hiring and promotion placements for potential steering. Over the past several years, the Office of Federal Contract Compliance Programs (OFCCP), a federal agency that audits contractors’ employment practices for discrimination, has increased its efforts to identify practices that steer applicants or employees into lower-paying jobs on the basis of gender or race.

In February 2013, the agency issued a directive instructing its compliance officers to extend compensation audits beyond an examination of current pay rates to include any employment practices that may lead to pay disparities, including “differences in job assignment or placement.” The directive cites as an example a grocer who fills entry-level positions by assigning males disproportionately to the meat department and females disproportionately to the bakery department where pay is lower and promotion opportunities are fewer.

A few months later, in July 2013, the OFCCP published its revised Federal Contract Compliance Manual. A section of the manual on glass-ceiling audits at corporate headquarters (technically called “corporate management compliance evaluations”) notes that compliance officers should ensure that any observed concentrations of protected groups in specific positions are not a result of job steering.

In addition, in November 2013, a service-focused market leader of branded uniform and facility services programs agreed to settle allegations raised by the OFCCP that the company discriminated against female laundry workers by steering them into “light duty” jobs paying $8 per hour compared to male laundry workers who were assigned disproportionately to “heavy duty” jobs that require similar work and qualifications but pay $9 per hour. The company agreed to pay nearly $266,000 in back wages to 59 women steered into the lower-paying jobs.

The Risk for Other Employers: EEOC EnforcementThere is no room for complacency among employers who are not federal contractors. Most employers with at least 15 employees are covered by anti-discrimination laws enforced by the EEOC, and job steering has long been on the radar of the EEOC. A direct reference to the practice appeared back in 2000 when Section 10 (“Compensation Discrimination”) of the EEOC Compliance Manual was issued. In addition, the EEOC specifically referenced “racial steering” in 2006 when Section 15 (“Race and Color Discrimination”) of the manual was issued. It did so with regard to an example, in which an employer steered Black and Asian salespersons to territories with high percentages of Black and Asian residents, respectively, rather than providing the salespersons with opportunities to work in territories regardless of their race.

More recently, in December 2012, the EEOC issued its Strategic Enforcement Plan (SEP) for 2013-2016. In the plan, the EEOC enumerates six national priorities, the first being the elimination of barriers in recruitment and hiring. In targeting recruiting and hiring practices that adversely impact particular


groups, the EEOC specifically mentions in the SEP “the channeling/steering of individuals into specific jobs due to their status in a particular group.”

How do I Mitigate these Risks?Several steps can be taken to mitigate the risk of a job steering claim. Start by identifying jobs in your organization that require very few qualifications or little training, such as unskilled entry-level jobs. If some of these jobs are lower-paying than others, determine whether those jobs have disproportionately large concentrations of employees of a given gender or race. Do the same for jobs that require higher-level but similar qualifications, where some of these jobs pay less than the others. Also, look to see if disproportionately many new hires or incumbents of a given gender or race are assigned to a lower-paying day shift rather than a higher-paying night shift for the same job.

If your organization tracks applicants by requisition, avoid creating requisitions that permit job seekers to be considered for “any” or “all” positions, thereby opening the door for hiring managers to channel males, for example, to higher-paying jobs and females to lower-paying jobs. Likewise, avoid requisitions that seek to fill positions simultaneously at different levels for the same job function, such as Accountant I, Accountant II, and Accountant III, or for different shifts for the same job. Such requisitions do not permit job seekers to express clearly their preference for a given level or shift, and can facilitate steering on the basis of gender or race to different levels or shifts. A better practice would be to open separate requisitions for each level or shift, thus allowing job seekers to choose freely the level or shift for which they will be considered.

Your organization may not utilize requisitions in its hiring process. If that is the case, be sure that job seekers clearly indicate the specific positions for which they are applying and that these choices are freely made with no control or guidance imposed by the employer. Also, do not permit job seekers to simply state “any” or “all” positions, instead mandate that they express their interest in specific jobs and subsequently are considered only for those jobs.

Lastly, some organizations permit recruiters or hiring managers to hire applicants for jobs or requisitions in which they did not express interest. Such a practice could be viewed by the EEOC or OFCCP as steering if the applicants hired in this manner are disproportionately of one gender or race, and the jobs into which they are hired consistently pay more or less than the ones in which they expressed interest. Curtailing this practice would help the employer avoid potential claims of steering.

Look Both Ways before CrossingCharges of job steering place an employer at the intersection of inequitably selecting applicants or employees in a manner that leads to inequitable pay outcomes. Disproportionately many members of one gender or race are rewarded with higher-paying jobs and disproportionately many members of a different gender or race are penalized with lower-paying jobs. Look both ways to avoid crossing into a dangerous intersection congested with claims of discrimination.


Discrimination can occur...

During selection

When one groupis consistently granted better promotion opportunities

By not making employees aware of certain openings

It can cause:

By suggesting certain groups only apply for certain jobs

Lawsuits and Audits

Low Morale

High Employee Turnover

Bad Publicity

Steer Clear of Job SteeringApplicants and employees could be steered toward

lower paying jobs based on race or gender.

Example: At a warehouse, male entry-level employees are assigned disproportionately to heavier lifting

production jobs while female entry-level employees are assigned to lower-paying

warehouse “clean-up” positions

$ $

Is job steering

organization? going on in your


focus for the OFCCP, and it has Job steering is now an area of

long been on the radar of the EEOC.

Keep the Ledbetter Fair Pay Act top of mind. This act ensures that no matter how long

ago job steering took place, it can:

Taint paychecks received up to the present

Make employers vulnerableto discrimination charges

Compensation

Hires,promotions, transfers

Shift assignmentsIn 2013, following

an OFCCP compliance evaluation, a uniform rentaland facility products company

agreed to pay $265,983 in back pay to 59 women

steered into lower paying jobs.

Call us today for a complimentary consultation session to determine if a job steering analysis is needed for your organization.

800.782.1818

The OFCCP may requestfrom an employer data on:

PeopleFluent Research Institute can analyze your records and detect statistical patterns.

Take a closer look now.


Job steering is not easy to identify. It requires a uniquetype of analysis as the causes can be more subtle.


Hiring Process Risks – A Compliant Hiring Process

By Julia Méndez

When it comes to hiring processes, attention is typically given to looking for creative ways to effectively recruit top talent for the organization and move them through the interview and onboarding processes as quickly as possible. What many companies overlook, however, is the importance of ensuring that the very same people who are in charge of recruiting, interviewing, and hiring are properly trained on what constitutes a legally compliant hiring process.

If your organization has 15 or more employees, more than likely, it is bound by the laws under the jurisdiction of the Equal Employment Opportunity Commission (EEOC). The EEOC is charged with ensuring that organizations have an environment free of harassment and are giving equal opportunity to applicants and employees regardless of race, color, sex, religion, national origin, disability, and genetic information. Title VII of the Civil Rights Act also protects against sexual harassment, discrimination due to pregnancy and pregnancy-related issues, and gender identity.

According to the EEOC guidelines, employers should: Provide training to all employees to ensure they understand their rights and responsibilities (relating to workplace harassment). An employer should ensure his/her supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedures.

In Bains v. ARCO Prods. Co., (2005) plaintiffs were originally awarded $1 million in compensatory damages and $5 million in punitive damages for failing to train on harassment.

In the case of EEOC vs. Mid-American Specialties (2011), the jury awarded the victims of sexual harassment and retaliation over $1.5 million. In this case, the HR Manager testified that she did not know the definition of “sexual harassment” when the particular incident of harassment took place.

It is a best practice to train anyone involved in the interviewing process regarding what questions can and cannot be asked of an applicant. For example, questions regarding arrests, marital status, and country of birth are not appropriate questions and can lead to discriminatory complaints being filed with the EEOC.

Interviewers should also be trained on what should and should not be written down as interview notes. This information could be discoverable in the event of an EEOC investigation or an audit or investigation by the Office of Federal Contract Compliance Programs (OFCCP), which has jurisdiction over companies with federal contracts and sub-contracts if they meet proper thresholds for coverage.

Another area that has received a lot of attention of late is the way accommodation requests are handled. Historically, when a person hears the word “accommodation,” they immediately think of an accommodation due to a disability. Although we are seeing more and more cases involving complaints due to disability discrimination (25,369 in fiscal year 2014), we are also seeing many complaints filed for failure to accommodate an applicant or employee requesting an accommodation due to their religious beliefs.


In fiscal year 2014, there were 3,549 complaints filed with the EEOC due to claims of religious discrimination. Proper management training should cover how to handle an accommodation request, as well as what constitutes unlawful discrimination under the laws enforced by the EEOC.

In 2012, in the case of EEOC v. New Indianapolis Hotels, the hotel was ordered to pay a $355,000 settlement due to the general manager’s practice of hiring Mexicans over more qualified black candidates. In 2013, Abercrombie & Fitch was ordered to pay $71,000 to two Muslim women over their wearing of their hijabs. One of them was fired for not complying with the company’s “look policy,” and the other was not hired because she wore a hijab.

As evident by the cases covered here, harassment and discrimination can be financially costly to an organization. Also, due to the negative exposure that a company receives when these cases are made public (all EEOC complaints and settlements are documented on their website), adverse public opinion regarding the organization and can also reduce profits if customers decide to terminate business with these companies.

The negative publicity can also have other adverse effects, such as reduced employee morale, and a reduction in the most qualified diverse candidates applying for positions if the public views the employer as not valuing diversity and inclusion.

With effective and regular training, companies can reduce the likelihood of harassment and discrimination taking place in the workplace. A modest investment in time and money spent on training can save a company lots of money in avoided future settlements.

Video Recruiting – The Candid Camera of Compliance Risk

By Dr. Lisa Harpe and Dr. Murray Simpson

Alan Funt, the creator and producer of the popular television series Candid Camera, achieved fame in the 1960s and 70s for subjecting others to hilarious practical jokes that were caught on tape by hidden cameras. Today, cameras are ubiquitously out in the open, readily available in our smartphones and tablets to create a photo or video that can be uploaded to the internet.

Recognizing how video permeates social media, talent acquisition professionals may be eager to incorporate video into the process by which they recruit and hire workers. If they do so, however, in a manner that runs afoul of anti-discrimination regulations, then an enforcement agency such as the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs (EEOC or OFCCP), rather than Alan Funt, may be the one saying, “Smile, you’re on Candid Camera!”

How Video May be Used in Recruiting and Hiring Companies strive to attract and hire the best employees. Job seekers strive to find the best companies and positions. Companies and job seekers often turn to new and creative methods to distinguish themselves. One such method growing in popularity is video.


Employers and job seekers utilize video in a number of ways related to recruiting and hiring. Employer branding involves activities aimed at creating an image of the company as a great place to work. To attract job seekers, employers may use video to communicate information about the company and jobs to potential employees. Videos of current employees describing the company’s culture and its work environment can be a powerful tool to attract job seekers.

Job seekers, in turn, may try to differentiate themselves from other prospective employees by posting video résumés on social networking websites such as Facebook, LinkedIn or YouTube or may submit a video résumé as an expression of interest in response to a job opening. With a video résumé, a job seeker is observed describing his or her qualifications and work preferences.

Employers may use video in the selection process itself. A growing number of companies use video interviews, recorded or live, in place of face-to-face interviews to save on travel and related expenses. The potential to use video certainly exists in other selection methods such as video applications, situational judgment tests, or work sample tests.

Employers are rightfully concerned about the compliance risks of using video to recruit and hire workers. Such risks vary, however, depending on the manner in which video is used and where in the process it is placed.

Low-Risk Uses of Video Video used for company branding purposes, to advertise job openings, or to inform prospective job seekers about the job and organization raise little compliance risk. In fact, videos that embrace diversity and represent the organization as an inclusive workplace may be a useful tool for diversity recruiting. Videos that include people representing both genders, a range of races and ages, as well as veterans and individuals with disabilities, may attract job seekers who identify with these protected groups.

The Heightened Risk of Video Résumés When employers use video in the selection process, compliance concerns arise. This is particularly true for video résumés or applications. Why? Because they provide recruiters and hiring managers with information early in the hiring process regarding the protected class status of job seekers, including gender, race and ethnicity, and possibly national origin, age and disability status.

Such information may foster explicit or implicit bias against one or more protected groups when disqualification decisions are made, opening the door for claims of discrimination. An employer can keep this door closed by carefully training recruiters and hiring managers to eschew any such bias when assessing video résumés.

In addition, job seekers’ access to and knowledge of video-producing technology may vary by age and perhaps by race and gender. If the submission rates of video résumés vary substantially by age, race, gender or disability status and recruiters show favoritism toward job seekers who submit a video résumé, or even more starkly, only consider those who submit a video résumé, then the situation may quickly become ripe for claims of discrimination.

Lastly, some employers view video résumés to gain a better impression of a job seeker, stating that a paper résumé cannot measure the intangibles. However, recruiters and hiring managers should exercise


caution because the intangibles may not be job-related and, consequently, may leave the employer unable to defend a hiring process that disproportionately disqualifies job seekers of a given gender, race, or other protected status.

For example, in a 2007 survey1 asking employers and hiring managers questions about video résumés, 1% of respondents indicated that they would review a video résumé to evaluate a candidate’s looks. Although this percentage is small, the fact that respondents would answer in this manner indicates the potential risk arising from disqualification decisions made on the basis of video résumé content that is neither not job-related nor consistent with business necessity.

The Comparable Risk of Video Interviews An argument certainly could be made that a video interview poses risks that are comparable to a face-to-face interview, the reason being that both methods of interviewing an applicant entail a visual recognition of protected status characteristics such as gender, race, and age that may have been previously unknown to the recruiter or hiring manager.

The benefits of a video interview, however, include greater scheduling flexibility and reduced travel costs both of which accrue to the employer and job seeker alike. Care should be taken to monitor disqualification decisions at the interview stage for adverse impact, particularly by race and gender, and to ensure that the interview is administered and evaluated consistently and measures job-related qualifications.

Video interviews should follow the same format and method for all job seekers for the same position, and the evaluation of the interview should be done in a consistent manner. Employers also must remember that a video interview is a selection method and must meet professional and legal guidelines of reliability, validity and fairness.

How Do I Mitigate the Risks of Video Recruiting? An employer considering the use of video résumés or video interviews would be well advised to conduct an adverse impact analysis both before incorporating these forms of video into the selection process and again about six months after they have become part of the process. The “before” study serves as a benchmark against which the “after” study can be compared to determine whether disqualification decisions made on the basis of video résumés or video interviews fall more heavily on some protected group than before.

If this is the case for, say, video résumés, then the continued use of such résumés heightens the risk of a discrimination claim being brought against the employer. If this is not the case, then the employer would have a reasonable basis to continue utilizing video résumés in the hiring process, contingent on annual monitoring for adverse impact going forward.

In this way, an employer will be better positioned to turn the tables on the EEOC or OFCCP and declare, “Smile, my candid use of cameras is compliant.”

1Video Resumes Spark Curiosity, Questions. HR Magazine. May 2007. Pages 28, 30-31.

16

Compliance concerns can arise when employers use video in

the selection process

Be careful!!

Job seekers can use

video resumes to:Employers can use

videos to:

Interview candidates

Promote company culture

Demonstrate commitment to diversity

GenderRaceEthnicityNational OriginAgeDisability Status

Video Recruiting:The Candid Camera of Compliance Risk?

Differentiate themselves

Demonstrate interest inparticular role/company

Video resumes reveal early in the

hiring process the job seeker’s:

This may foster explicit or implicit bias, opening the door for discrimination claims

Keep the door closed!

While conducting video interviews:

The door could also open

if the employer:

Interviewin

Progress

Evaluate all candidates consistently

Measure job-related qualifications only

Meet the guidelines for reliability, validity, and fairness

Favors or only considers candidateswith video resumes

Disqualifies candidates based on "intangibles," observed in video resumes or interviews, that are not related to the job

Uses video to evaluate a candidate’s looks

$

Conduct an adverse impact analysis before and six months after you start

Set benchmarksFind out if any protected group is adversely impacted

If you are considering using video

resumes and interviews

Contact us today for a complimentary consultation session.

Call 800.782.1818


PeopleFluent Research Institute can help with the analysis.


Performance Appraisals – The Hidden Risks

By Dr. Lisa Harpe

In an effort to reward good performance and correct poor performance, most organizations conduct some type of formal performance evaluation. Often on an annual basis, managers and employees look back over the prior year and assign a rating or ratings purportedly reflecting one’s job performance.

Organizations then use these ratings to reward good performance through merit increases or bonuses or punish poor performance through disciplinary action or possible dismissal. Organizations often describe the relationship between performance ratings and positive or negative employment outcomes in formal ways through policies or procedures regarding performance and pay, promotion, disciplinary action or reductions in force (RIF).

By establishing a direct relationship between performance and other employment outcomes, organizations place their performance management system in the spotlight. While a performance rating itself is not discriminatory, ratings that result in employment outcomes are subject to legal scrutiny. For example, an organization may justify the decision to allocate merit increases only to those with certain high ratings or may defend its RIF decisions by terminating employees with certain low ratings.

If disparities in ratings exist along race, gender, or age lines, and, as a result, there are pay or termination disparities along such lines, an employee or group of employees could claim that the performance rating system is tainted. For example, a female or group of females may claim that managers discriminate against them by assigning low ratings to females to justify paying them less or promoting them less often than similarly situated males. Alternatively, if females, for example, have higher ratings than similarly situated males but receive smaller pay increases or fewer promotions, the females could claim that the organization discriminates against them by paying or promoting males more often despite females having higher ratings.

So, what can an organization do to protect itself? Awareness is key. First, an organization should examine its performance ratings to identify any race, gender, or age disparities in the distribution of ratings. Second, an organization should make sure that its performance management system meets legal and professional guidelines as a fair and sound process.

Organizations should analyze their ratings to look for statistical disparities by race, gender, and age. An organization may look to see whether a protected group receives disproportionately lower ratings than others or whether members of a protected group receive disproportionately more high or low ratings than others. If such disparities exist, the organization should investigate the identified disparities.

Keep in mind that rating differences do not equate to discrimination. Rating differences could reflect true differences in performance. However, when the ratings differ statistically by race, gender, or age, a company should take steps to check that these rating differences reflect valid performance differences. Are there other performance measures, documentation, or feedback from employees, managers or peers that help explain the ratings? If so, the company can defend its position that the appraisals are fair. If not, the organization should review, and where warranted and feasible, change the ratings, provide training


to educate the raters, and, finally, continue monitoring the situation to ensure that the problem does not reappear.

There are a number of characteristics shared by performance management systems that have withstood legal and professional scrutiny. A well-developed and job-related performance management system should first and foremost be based on a job analysis. Second, managers should be trained on the process and how to make job-related performance ratings. Finally, the organization should offer an appeal process. Employees who do not agree with their ratings should have a process available to disagree. Organizations should be aware of the legal risks associated with their performance management systems. Establishing and implementing a fair, job-related performance management system and monitoring the distribution of ratings along race, gender and age lines will ensure that an organization can withstand legal scrutiny.

Playing Nice in the Compliance Sandbox – The Value of Internal Partnerships

By Rosemary Cox

Affirmative Action Programs (AAPs), which include outreach, training programs, and other efforts, are designed to help prevent discrimination in employment practices and to promote equal employment opportunity. Many employers have a written AAP that they update annually, and organizations with more than 50 employees and/or that provide more than $50,000 ($150,000 threshold for Protected Veterans AAP) in goods and services to the government are required to create an AAP.

As children, we learn to “play nice and share.” When we translate this to adult language, it is called “partnering.”

Creating effective partnerships within your organizations will help make your AAP more effective and easy to manage.

Buy-in from all parties is more critical now than ever before, and you shouldn’t wait until your AAP is done to create these partnerships. The best practice is to engage people within your organization prior to, or at the time you begin to pull data for your plans and keep them engaged through the AAP cycle and throughout the year. This way, they do not feel like they are being told what to do, rather they are playing an integral role where they can take ownership.

The Office of Federal Contract Compliance Programs (OFCCP) is becoming more and more in-depth in their audits and analysis of data. You can no longer write your plans and put them on the shelf; you and your partners should be actively involved with the AAP throughout the year. Once your AAP is in writing, actions to take include:

• Communicating results

• Developing action plans


• Training managers

• Evaluating outreach, recruiting, and Good Faith Efforts

• Researching areas showing adverse impact

• And, so much more

You simply cannot do this by yourself. What typically happens when partnerships are not created from the beginning is that when you receive an audit notice, everyone then wants to get involved. At that point, you spend more time catching up with everyone than moving forward and preparing for the audit. Don’t find yourself behind the eight ball, instead, be proactive.

Who should be InvolvedAlthough everyone plays some role in Affirmative Action, below is a list of key partners with whom you need to engage more heavily, and their recommended roles:

1. Generalists, HR Business Partners – Communicating results to plan owners and managers, gaining buy-in of management, training managers, making and recording outreach, recruiting, and Good Faith Efforts

2. Recruiters – Checking data to ensure every application for filled positions is assigning a final disposition code, along with a reason for not being hired if applicable, communicating goals to managers, discussing hiring decisions with managers, making and recording outreach, recruiting, and Good Faith Efforts

3. Managers – Making and recording outreach, recruiting, and Good Faith Efforts, hiring responsibly, knowing where they have goals and helping to meet those goals, making sound employment decisions (hiring, promoting, transferring, training, compensation, etc.)

4. AAP Plan Owner – Communicating to all managers that meeting their goals is important and reinforcing the company’s commitment to Affirmative Action

5. Internal or External Counsel – If they are involved in an audit situation you should engage them early in the process so that they understand and agree with the plan development. This will help you avoid making major changes during the audit time (if there is one). You should also understand what role they will play in an audit situation.

ConclusionPartnerships are critical and will help you manage the AAP process. That’s why at PeopleFluent our consultants are with you hand-in-hand throughout the process and will help you create these partnerships. Aligning internal resources is a proactive approach to ensuring a successful workforce compliance program that not only meets federal requirements, but also can serve as a key contributor to organizational goals.


Data Visibility for Your Organization – Compliance and Diversity Practices

By Roy Zambonino

Given the advent of applicant tracking systems and human resource management systems in today’s world of human resources, the access to data and metrics for organizations has never been greater. The amount and types of metrics derived from data have increased exponentially over the last decade. These days, many of us find that the problem isn’t so much about getting the data, or metrics based on that data, but figuring out what to do with all that information; and more importantly, getting it into the hands of decision makers in a timely manner.

These issues are doubly important for compliance and diversity managers and professionals who must collect and also disseminate information – sometimes in the form of reports and documents – to varied audiences throughout the organization. The reports and documents may include: Affirmative Action Plans, diversity dashboards, audit checklists, training records, onboarding information, outreach documentation, and accommodation records, just to name a few.

So, how are companies approaching the issue of collecting and distributing this type of information? We often see companies using a patchwork of spreadsheets, shared drives, e-mail, and other varied manual processes. Unfortunately, as many find out the hard way, these cobbled-together processes are unsustainable. Can you relate to shifting attention spans between multiple projects? How about turnover, which leads to loss of knowledge or access to resources within a process because the leader or “doer” moved on or was reassigned to other areas? The next thing you know, you’re scrambling to pick up the pieces or completely reinvent the wheel. There must be a better way, right?

Address the Sustainability Issue The ideal compliance and diversity documentation system must address the sustainability issue through:

• Scalability

• Consistency

• Visibility

Your vision can reach beyond just document management. You can actually leverage a browser-based system to collect, organize and distribute vital compliance and diversity information across the entire organization. With an online solution to host all your affirmative action plans, diversity plans, and other associated documents, the process of tracking and documenting outreach and accommodation efforts in a consistent manner across the organization adds efficiencies and greater assurance in the information being properly housed and accessed in a timely manner by the right stakeholders.

The need to manage compliance or diversity data fluidly throughout an organization is just as important as managing the company’s data for finance or IT. By automating your process, you can be the steward of fast, effective decision making for your business managers with secure visibility to the right compliance or diversity information.


Compliant Documentation – Supporting Your Talent Management Decisions

By Julia Méndez

Whether an employer is being faced with an Equal Employment Opportunity Commission (EEOC) charge investigation or The Office of Federal Contract Compliance Programs (OFCCP) compliance review, having proper records to back up personnel and employment decisions is essential. Employers, however, often make decisions with little or no documentation to justify their practices. Management is left to rely on the memory of the person who made the decision, that is, if the employee is even still working for the employer at the time of the investigation or review.

EEOC Record Keeping Requirements EEOC regulations require that covered employers keep personnel records for one year. For employees who have been terminated, these records need to be maintained for one year from the termination date. Some regulations require records to be retained for a longer period of time, which is the case with Age Discrimination in Employment Act requiring that payroll records be maintained for three years. Although, the Fair Labor Standards Act (FLSA) is not under the jurisdiction of the EEOC, when handling a complaint regarding equal pay, payroll records are reviewed. Under FLSA, payroll records must be retained for at least three years. Records regarding job evaluations, seniority and merit systems, and collective bargaining must be retained for at least two years if they can explain wages set by the establishment.

As part of the requirement to annually complete the EEO-1 Survey, private employers are also required to collect race/ethnicity and gender information on employees if:

• There are 100 or more employees

• The company is a prime federal contractor or first-tier subcontractor with 50 or more employees and $50,000 or more in a federal contract

• The company is a financial institution with 50 or more employees and serves as a depository of government funds

OFCCP Coverage and Record Keeping Requirements The Department of Labor, OFCCP requires federal contractors and subcontractors to maintain records on applicant and employees as they pertain to regulatory requirements under Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act. As per the regulations under 41 CFR 60-1.12, contractors must maintain personnel or employment records for no less than two years from the date the decision was made.

For employers with fewer than 150 employees or less than $150,000 in a federal contract, the record retention period is set at one year from the date the personnel or employment decision was made. If any location is undergoing an OFCCP compliance review or investigation, the records for the period being reviewed must be retained until the site receives an official notice that the review or investigation has been closed. According to these regulations, records to be retained include:


• Records pertaining to hiring, assignment, promotion, demotion, transfer, lay off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship

• Records having to do with requests for reasonable accommodation, the results of any physical examination, job advertisements and postings, applications, résumés, and any and all expressions of interest through the Internet or related electronic data technologies as to which the contractor considered the individual for a particular position.

Good Documentation is Key to Compliance According to the EEOC, there were 89,385 (FY 2015) charges filed with the agency within the 2014 fiscal year for allegations by applicants, employees, and former employees regarding harassment, discrimination, and retaliation in violation of Title VII of the Civil Rights Act, Americans with Disabilities Act, Genetic Information Nondiscrimination Act, Equal Pay Act, and/or Age Discrimination in Employment Act. These charges resulted in more than $525 million in monies paid out to victims of discrimination.

The OFCCP also has been active in conducting compliance reviews and investigations. In FY 2014, the number of compliance evaluations was 3,602 but the settlement monies totaled $11.9 million. According to the most recent enforcement data released by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), they completed 2,603 compliance audits during FY 2015, a 32% decline from the previous year.

The OFCCP has a target of conducting 3,840 compliance reviews (equal to 2015) and 450 construction contractor reviews in FY 2016. The agency seems to be aggressively reviewing compensation practices in order to determine whether or not pay disparity exists.

In the case of selection decisions, having proper documentation which is objective, relevant, and complete can make the difference between whether or not an employer is required to pay back-pay and interest to an applicant or employee who otherwise appears to be qualified for the job. Oftentimes, there are reasons such as candidates voluntarily withdrawing from the selection process once they realize the working conditions, hours, or pay for the job are undesirable to them. Having proper documentation to prove that the person withdrew from consideration due to these reasons is essential to being able to substantiate why the individual was not selected.

Documentation, such as performance evaluations, attendance records, performance plans, credentials, and training attendance is also important when making the case for why a person was promoted or paid a certain salary. Federal contractors are required to indicate the last step of the hiring process that each candidate completed, along with information on race, gender, disability and protected veteran status at both the applicant and post-offer stages. This information can also help in the preparation of analysis to determine the effectiveness of their current recruitment strategies as well as assess at what stage of the hiring process they are losing candidates of a particular demographic.

Conclusion Maintaining records not only is a regulatory requirement for agencies such as the EEOC and the OFCCP, but it also is a best practice when done properly. Proper records can be used as a defense for employers when faced with a charge. Even more beneficial, documentation can enhance business practices such as recruiting effectiveness, which allows stakeholders to focus on the most effective sources in obtaining the diverse and talented candidate pools for organizational growth.


Diversity, Inclusion, and Compliance – Similarities, Differences, and How They Can Work Together

By Julia Méndez

When one hears the words “diversity”, “inclusion”, and “compliance”, oftentimes similar thoughts come to mind. However, each word has a distinct meaning which should be understood in order to apply the concepts appropriately in day-to-day discussions. Having a clear understanding of how a workplace can be diverse, inclusive, and also compliant could aid organizations in taking steps to create an environment that not only includes people with a variety of beliefs and backgrounds, but also makes all people feel respected and accepted. By doing this, companies can ensure that they are one step closer to being compliant in the area of equal employment opportunity practices.

Diversity and Inclusion Although “diversity” and “inclusion” are words that often are used interchangeably in the workplace, the meanings of these two words are quite different. Diversity refers to the long list of characteristics attributed to persons. When a workplace is diverse, this refers to having people who represent different races, national origins, ethnicities, genders, abilities, sexual preferences, ages, interests, backgrounds, educational attainments, socioeconomic statuses, and the list goes on and on. Inclusion, on the other hand, refers to how the people who are working in these diverse environments feel regarding how they are treated by their co-workers and managers as well as whether they are respected and feel they have opportunities within the organization to grow and move up the ladder despite their uniqueness. In other words, diversity looks at the composition of your workforce, whereas inclusion measures how fair and inclusive your interactions and practices are within the workforce.

I have seen the following happen time and time again: A company is given a diversity goal to have a certain percentage of minorities employed at the organization. They involve recruiters and hiring managers in meetings advising them of these goals set to increase the minority population at the organization and might even give incentives to these key players if they meet the goals. Recruiting strategies are set in place to post job openings in publications that are targeted to minorities and the recruiters might even reach out to historically black colleges and other known sources of minorities in order to increase the likelihood of meeting these hiring goals. Well, time passes and sure enough the diversity goal to increase minority hires is met! Everyone should be happy, right? Not necessarily.

This is where inclusion comes in. Instead of companies focusing entirely on attracting diverse groups of people, a focus also needs to be put on ensuring that all persons are made to feel included in all aspects of company activities such as promotional opportunities, opportunities to be mentored or trained, and opportunities to participate in volunteer activities and company-sponsored events. It is not enough to check off that you met a hiring diversity goal.

It is imperative that there are key persons identified within the organization to be in charge of making sure employees are not only treated fairly, but are also respected and encouraged to be involved in submitting their unique ideas and experiences. By doing so, the company increases the likelihood of


retaining the best and brightest talent available, and has access to ideas to become more innovative and efficient that perhaps they would never have attained were it not for their embracing the uniqueness of every individual that is part of their team.

Keep in mind that diversity and inclusion is not simply about race, ethnicity and gender. We are living in times where the age to retire is being pushed back further and further for various factors including financial hardship. This means we find ourselves working with individuals of a wider age range. One size does not fit all when it comes to matters such as communication style. We also find ourselves paying more attention to disabilities in the workplace, not only because we have employees who are working longer and are older, which increases the likelihood of having employees with disabilities in the workplace, but also because federal agencies are focusing more attention on ensuring that employers are giving individuals with disabilities equal access in all phases of employment decisions.

Imagine, for example, the organization that spends a lot of time and effort recruiting individuals with disabilities with target job fairs and job advertisements through agencies whose goal is to place individuals with disabilities. What good does it do, however, to attract interest with this population if, for example, the building where these individuals will come in for an interview or to work is not wheelchair accessible?

I have seen scenarios where the company boasted that they had ramps leading up to the front door of the building and automatic doors at the front entrance, but then there were no elevators or chair lifts to get someone from the first floor to the company’s offices on the tenth floor. How inclusive of an environment would this be for individuals in a wheelchair or unable to easily climb stairs?

Another group that has been getting attention lately due to changes in laws is the LGBTQ group. Recruiting firms and publications are available to reach this demographic. But once again, employers need to ask themselves “Does my organization have a work environment that would seem inviting and inclusive to persons within this group? Or do we have policies, procedures, or attitudes that would come across as isolating or non-inclusive?”

ComplianceWhen referring to compliance, we are referring to ensuring that equal opportunity in all aspects of employment phases exist: recruiting, hiring, promoting, demoting, transferring, training, terminating, and benefits. For most employers with 15 or more employees, this means following guidelines set by the Equal Employment Opportunity Commission (EEOC) with respect to following the laws they enforce, which includes Title VII of the Civil Rights Act, which protects applicants and employees against discrimination, or retaliation for filing a complaint, due to race, gender, color, religion, national origin, and pregnancy. Other laws enforced by the EEOC include the Equal Pay Act, Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act.

Employers doing business with the federal government as a prime-contractor or subcontractor are also required to abide by additional regulations enforced by the Office of Federal Contract Compliance Programs (OFCCP). These laws include Executive Order 11246, which has similar protections as the Civil Rights Act, and protects applicants and employees against discrimination based on race, color, national origin, gender, sexual orientation, and gender identity. Section 503 of the Rehabilitation Act protects applicants and employees against discrimination based on a physical or mental disability and also requires employers to make reasonable accommodations as needed. And lastly, the Vietnam Era Veterans’


Readjustment Assistance Act protects against discrimination due to an applicant’s or employee’s status as a protected veteran.

Federal contractors who are required to manage an annual Affirmative Action Program must also proactively engage in practices to attract qualified females, minorities, individuals with disabilities and veterans into the workplace. These contractors also are required to maintain records and request that applicants voluntarily self-identify regarding their gender, race/ethnicity, veteran status, and disability status at both the applicant stage and at the post-offer stage. This information is utilized to prepare statistical analysis to determine whether or not any statistically significant differences exist in the number of women and minorities that are employed when compared to the number of women and minorities available internally and in the recruiting areas with the skills sets needed. Metrics are now required to be maintained regarding the number of protected veterans and individuals with disabilities with respect to applicants and hires. Annual compensation reviews must also be conducted by federal contractors and covered subcontractors to determine whether or not any pay inequities exist.

How Do These Concepts Fit Together?Putting forth an effort to have a diverse workplace is not only a wise business move but also a requirement for federal contractors required to prepare an Affirmative Action Program. However, if an employer does not create an environment where persons of all races, genders, abilities and other distinguishing characteristics are respected and feel welcomed, this will impact the organization’s ability to continue to attract a pool of qualified diverse talent and increase the likelihood of employees leaving the organization or staying and being unhappy. This can also lead to increased internal complaints of harassment or discrimination as well as complaints being filed with agencies such as the EEOC or OFCCP.

Therefore, while striving to increase diversity within all areas of the organization, companies should keep in mind that there is an obligation to train employees and management staff regarding EEO laws, OFCCP regulations and the company’s “no harassment” policy. Having inclusion training and employee resource groups are other tools which can be considered to increase the likelihood of having an inclusive environment.

Key Questions to Assess Your OFCCP Audit Readiness

By Rosemary Cox

The Office of Federal Contract and Compliance Programs (OFCCP) averages roughly 3,000 audits per year. If targeted, is your organization ready?

Can you relate to the many organizations that tend to quickly write their Affirmative Action Plans without securing time to clean the data and ensure accuracy? Then, when the audit notice arrives, there is a scramble to clean and submit the data.

The list below highlights 15 key questions you need to address when preparing your plans and, most importantly, before your 30-day submission window closes:


1. Do you have the right people in the right plan as of the plan date?

2. Do you have your include/exclude employees distributed appropriately?

3. When looking at your workforce, is there a supervisor/manager in every department? If not, can you indicate where they sit in relationship to their employees?

4. Do you have the correct positions in the correct job group?

5. Are your job groups too large? Too small?

6. Do all of the job groups contain positions with similar content, opportunities and wages?

7. Have you reviewed your compensation? Can you appropriately explain any differences between any race and gender?

8. Did you have goals in the prior year? Did you attain those goals? If not can you show efforts?

9. Are your historical transactions accurate? Are you showing any impact with your decisions?

a. Verify that all hires were hired within the date range for the plan year.

b. Make certain that all terminations are marked correctly (voluntary or involuntary).

c. Make certain that all transactions marked promotions are truly promotions and not transfers. Make sure that you know if these were competitive or non-competitive promotions. If they were competitive, can you identify the applicant pool if required? Do you have people promoted n TO and FROM the same Job Title? Is this accurate?

d. Review your applicant roster to make sure that all records from the Hire File are included as applicants in your applicant file, and that they have been listed in the correct job group with the correct race and gender information.

e. Ensure the applicant roster includes only those applicants who have met the basic qualifications and have not selected out/withdrawn prior to an offer. Codes such as “does not meet basic qualifications”, “withdrew”, “position canceled” etc., should be removed from the analysis.

f. Do you have all backup documentation to support your employment decisions?

10. Have your open positions been listed with the State or Local career centers? Can you show proof of listing?

11. Can you provide a list of all of your good faith efforts for women and minorities?

12. Can you show all of your engaged outreach and recruitment efforts for Veterans and Individuals with Disabilities?


13. Have you evaluated your efforts to ensure they are effective? Do you have documentation to show your evaluation?

14. Have you communicated your plan results to management?

15. Have all of your managers been trained? Can you provide proof of training?

This list highlights some of the critical items that you need to think about and review when writing your plans and/or preparing when the auditor comes knocking. The most important point to remember is don’t panic. Take your time, make sure everything is accurate, and be prepared to answer any questions that may arise.

For more information about PeopleFluent’s compliance and diversity solutions, contact us at 1-800-782-1818, option 3, or send us an e-mail.

Workforce Compliance and Diversity

400 E. Las Colinas Blvd., Ste. 500

Irving, TX 75039

Tel: +1-800-782-1818

www.peoplefluent.com TM

mailto:eeosales%40peoplefluent.com?subject=pay%20equity%20study/hiring%20practice%20review/audit%20support

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