WHAT TO EXPECT DURING AN EVALUATION AND COMMON PROBLEM AREAS FOR FEDERAL CONTRACTORS

OFCCPCommitment to

Workplace Inclusion

Office of Federal Contract Compliance Programs

Southeast Regional Director Sam MaidenSouth Carolina ILGDecember 5, 2019

Introduction to OFCCP

• Federal civil rights enforcement agency within

the U.S. Department of Labor

Mission: Enforce for the benefit of job seekers and

wage earners, the contractual promise of affirmative

action and equal employment opportunity required of

those who do business with the federal government.

• Jurisdiction over federal contractors and

subcontractors

Laws OFCCP Enforces

Executive Order 11246

Section 503 of the Rehabilitation Act of 1973

The Vietnam Era Veterans’ Readjustment

Assistance Act of 1974

3OFCCP Overview

Workplace Inclusion

• At OFCCP, we are committed to expanding

equal employment opportunities and

eliminating discrimination in the workplace of

federal contractors. As we work together to

ensure contractor compliance, we at OFCCP

must also exhibit workplaces free of

discrimination that promote diversity and

inclusion of all.

Four Pinnacles - CERT

• Certainty

• Efficiency

• Recognition

• Transparency

Certainty

Efficiency

RecognitionTransparency

Certainty

Certainty

• Goal number 1 for OFCCP is to

provide certainty to contractors

by following rule of law

principles and ensuring that the

agency sets clear expectations.

Certainty

• For OFCCP, certainty means providing guidance that

helps contractors be proactively compliant. Clear and

certain guidelines allow contractors to proactively

comply and ensure no ambiguity in enforcement.

• Opinion Letters

• Help Desk

• Compensation Directive

• Pre-Determination Notices

• FAQs

Parental Leave – 60.20.2

• Don’t treat men and women differently with regard to

availability of flexible work arrangements

• To the extent that a contractor provides family,

medical, or other leave, such leave must not be denied

or provided differently on the basis of sex

• A contractor must provide job guaranteed family

leave, including any paid leave, for male employees

on the same terms that family leave is provided for

female employees.

Educational Institutions

• Student employees do not need to be included in

AAPs or in records submitted during the course of a

compliance evaluation.

• We will continue to accept complaints alleging

employment discrimination filed by and on behalf of

student workers.

• OFCCP recently published a technical assistance

guide for educational institutions.

Educational Institutions

• Job Group Analysis - COW (Content,

Opportunities, Wages) • Example:

– Instructional Staff Within a specific department

• Tenured Professors

• Tenure-Track Associate Professors

• Non-Tenure Track Associate Professors

Job groups should align with hiring, promotion and

compensation practices.

Placement Goals

• In the event that the percentage of a particular

minority group is substantially less than would be

reasonably expected given the availability, OFCCP

may require the contractor to establish separate goals

for that particular group. Similarly, if the percentage

of men or women of a particular minority group is

substantially less than would be reasonably expected,

then OFCCP may require separate goals for those

underrepresented groups.

Placement Goals

• OFCCP recommends disaggregated placement

goals when specific minority groups are

underutilized. Categorize employees in each job

group who identify as White,

African‐American/Black, Asian/Pacific Islander,

American Indian/Alaskan Native, and Hispanic.

Then, as done for a single minority goal, compare

the percentage of qualified people available to

work in the recruitment area to the number of

employees in each job group.

Placement Goals

• Even when setting disaggregated placement

goals, contractors must continue to set a single,

aggregate minority placement goal to comply

with OFCCP’s regulations if minorities, in the

aggregate, are underutilized.

Best Practices – Educational Institutions

• Form diverse instructional staff search committees

• Use objective selection tools to ensure a more

uniform assessment of applicants

• Create mentoring partnerships within and outside

your organization

• Create EEO apprenticeship programs

• Post promotion opportunities

• Create and engage with employee resource groups

• Offer career counseling to assist employees.

Educational Institutions – Requirements

• Base hiring decisions on job-related knowledge, skills

and abilities

• Review job applications and other pre-employment

forms to ensure information is job related

• Evaluate selection methods that have an adverse

impact to ensure they are job related and consistent

with business necessity

• Training in EEO for management and supervisory

staff.

• Evaluate job requirements for promotion

Are your AI selection tools validated?

• OFCCP analyzes all selection devices for

adverse impact. If an AI-based selection

procedure is having adverse impact, the

contractor will be required to validate the

selection procedure

• The UGESP require local validation at the

organization’s facilities

• Off-the-shelf tests must be validated at your

own facilities

DATA REQUESTS AND PRE-ONSITE

ANALYSES

• If OFCCP requests Applicant Flow Data, we will:

– Review for consistency with the initial numbers you submitted

– Review dispositions and whether they were applied consistently

– Analyze each job group at the job title level, or create their own groups of titles

or even job groups

– Analyze each step in the application process for statistically significant

differences in outcomes

– Review whether candidates appear on multiple requisitions

– Review whether requisitions overlap

– Review whether candidates are hired into other jobs than those they apply for

(crossover)

– Check whether duplicates, multiples, offers, referrals are driving the disparity

they’ve discovered

– Check whether Internet Applicant Rule dispositions have been removed, and if

so, if they’ve been removed correctly

• Prohibits contractors and subcontractors from

disciplining or firing employees for attempting

to learn if they are victims of compensation

discrimination and, in certain instances, for

sharing pay information with their coworkers.

Executive Order 13665

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EO 13665 Requirements

• Allow employees to discuss their pay with

other employees.

• Conduct an annual pay equity analysis to see if

there are any race or gender based disparities.

• Remedy any gender or race based pay

disparities not justified by a legitimate

business factor.

Directive 2018-05

• To outline standard procedures for reviewing

contractor compensation practices during a

compliance evaluation and

– emphasize OFCCP's priority of eliminating pay

discrimination through enforcement

– compliance by contractors through proactive self-

auditing.

Directive 2018-05

OFCCP will analyze:

• Monetary compensation in the form of salary

or pay rates, bonuses, commissions, pay

additions, or other forms of incentive pay;

• Training or advancement opportunities;

• Placement into particular jobs or differential

access to earnings opportunities such as

assignment to preferred contracts or territories.

60-20.2

• Denying transgender employees access to the

restrooms, changing rooms, showers or similar

facilities designated for use by the gender

which they identify

• Treating employees or applicants adversely

because they have received, are receiving

transition-related medical services designed to

facilitate the adoption of a sex or gender other

than the individual’s designated sex at birth

Efficiency

Efficiency

Recognition

Transparency

Certainty

Efficiency

• Goal number 2 for OFCCP is

to make compliance reviews

and assistance faster, more

focused, and less burdensome.

AAP Verification Initiative

• A directive in 2018 announced the AAP

Verification Initiative (DIR 2018-07). When

implemented, OFCCP can more efficiently

ensure that federal contractors have developed

and maintained required AAPs, through the

streamlined use of information technology.

Focused Reviews 60-1.20(4)

• OFCCP will add focused reviews to its

compliance activities, with comprehensive

onsite reviews focused on each of the three

enforcement authorities OFCCP enforces:

– Executive Order 11246, as amended;

– Section 503 of the Rehabilitation Act of 1973, as

amended; and

– the Vietnam Era Veterans’ Readjustment

Assistance Act of 1974, as amended.

Focused Reviews

• During a Focused Review, OFCCP would

schedule an onsite evaluation of a contractor’s

compliance with a particular law or laws, such

as Section 503 or VEVRAA, or certain

protected bases under EO 11246. This

investigative procedure lends itself to more

efficiency because, compared to compliance

reviews, the scope of focused reviews is

narrower.

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Developed by Division of Policy, Planning and Program Development

VEVRAA Focused Reviews

• August 2018 Directive 2018-04: Announced Focused Reviews

• Examines Contractor Compliance with VEVRAA

• Includes an Onsite Evaluation

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Developed by Division of Policy, Planning and Program Development

VEVRAA Focused Reviews

• Recently Separated Veterans

• Disabled Veterans

• Armed Forces Service Medal Veterans

• Active Duty Wartime or Campaign Badge Veterans

VEVRAA FOCUSED REVIEWS

• Veteran Benchmark – 5.9%

• Unlawful to discriminate in employment against the

spouse of a protected veteran

• VETS also provides resources for protected veterans

and their spouses, including an online portal designed

specifically for military spouses.

• 123 complaints on the basis of veteran status this past

FY.

Military Spouses

It is unlawful for the contractor to exclude or

deny equal jobs or benefits to, or otherwise

discriminate against, a qualified individual

because of the known protected veteran or pre-

JVA veteran status of an individual with whom

the qualified individual is known to have a

family, business, social or other relationship or

association.

Transition Assistance Program –

dol.gov/veterans/findajob/

Focused Reviews - Promotions

• Taking a closer look at representation of

women and minorities in university faculty,

law firms, financial firms and other higher

level positions at corporate headquarters.

• Will be looking at utilization, lines of

progression and perhaps conducting focused

evaluations based on promotions in upcoming

scheduling lists.

• Most likely out in the spring.

CMCEs

• Corporate HQ

– Will look at demographics of whole corporation

– Barriers for women and minorities

– How are promotions defined? – If definition varies

by different segments of the workforce you should

define for each segment

– Average time in job; average time in company

• Is there a difference in how long a particular group stays

in a job?

Educational Institutions – Promotions

• Will look at tenure promotions – carefully assessing

the variables used by the institution

• We will ask how you define promotions

• Compensation and promotions are intertwined.

OFCCP will the two areas both separately and

together. For example, if women are paid less than

men in a department and analysis shows that women

are not receiving tenure at the same rate as men,

OFCCP would analyze both tenure outcomes and

compensation and may request historical data.

Focused 503 Reviews

• The Focused Section 503 Reviews will include

a mandatory on-site visit.

• The OFCCP will be posting sample on-site

questions on their website.

• A current AAP for Minorities and Women will

be required to be submitted, but only for the

purpose of providing job groups – the agency

will not be analyzing all aspects of the AAP for

Minorities and Women.

Section 503 Focused Reviews

Assess

– Compliance of Written Section 503 AAP

– Postings and Notices

– Online Application Systems and Onboarding

Procedures

– Self-Identification Procedures

Five Year Milestone

• Make this an action item

– Section 503 was revised in 2014

– Subpart C requires a five year invitation to collect

voluntary employee disability status.

• Suggestion – It is time to be proactive:

– Invite everyone to self-id

– Analyze where you are towards the 7% utilization goal

– Highlight activities done to attract and retain IWDs

– Come up with alternative methods

Self-Identification

• Unless employees are seeking

accommodations they may be thinking long

and hard about the risks versus benefits of self-

identifying, even anonymously. As such,

companies should be able to explain the

benefits, including access to resources,

accommodations and a community of other

employees with disabilities.

Self-Identification

• Be clear that the information helps you

identify gaps in recruiting, hiring, retention

and promotion of people with disabilities.

Without this data, the business won’t know

how to target future diversity efforts

Self Identification

• Provide employees with the option to self-

identify within a secure/confidential online

system where they maintain changes, for

example, to tax deductions and pay check

allocations.

• Be upfront about the ways the information will

be used if an employee discloses that they

have a disability and explain how anonymity

or confidentiality will be protected. Monitor

that these protections are maintained.

Focused 503 Reviews

• OFCCP is currently working on a new form for the

self-identification of individuals with a disability

(IWD).

• Contractors may utilize their Regional Outreach

Coordinator (ROC) to get resources on outreach to

IWD organizations.

• A “best practice” is to have a centralized reasonable

accommodation policy and to appoint a “Chief

Accessibility Officer” to ensure consistency and

follow-through on providing accommodations

Proposed Rule – Self ID form

• Moves the space for the individual’s name and date to

the top of the form

• Removes the reasonable accommodation notice so

that the form is now one page instead of two

• Significantly revises the language used for the “Why

are you being asked to complete this form” section

• Revises the list of examples of disabilities, such as by

adding autoimmune disorders, gastrointestinal

disorders and nervous system conditions including

migraine headaches

Proposed rule – Self ID form

• Reasoning - softening the tone of the form to make

the language more positive,

• Updating and alphabetizing the types of disability,

and

• Removing the reasonable accommodation notice.

– It created confusion among applicants and

employees who thought that completing the form

automatically referred them for a reasonable

accommodation

• Agency is currently reviewing comments.

Outreach and Recruitment

Elements to consider when conducting your

assessment:

– Number of Referrals and Hires

– Long-term Goals

Outreach Assessment

• During an audit when you’ll be asked to show

which organizations you’ve worked with over

the past 12 months, and which ones you’ve

added or subtracted based on your annual

assessments (which can be reviewed over the

last three-year period of time).

• For example, Outreach log: Show specific

efforts to communicate with veteran and

disabled organizations for each department.

Outside Agency Conducts Our Research

Even if a contractor is having an agency conduct

its outreach, all the obligations and requirements

are the responsibility of the contractor itself!

Employers should circle back with staffing

agencies and other third-party sources to ensure

appropriate documentation. The contractor

should also be requesting this data routinely to

remain diligent and on top of trends, because

once again, the contractor is the sole entity

responsible should a violation occur.

Robust 503 Program

• We will analyze your assessment of outreach and recruitment

(qualitatively and quantitatively)

– Build a pipeline

• Are there a good number of referrals and hires?

• Will it help you long-term to identify candidates?

– Communication

• Do you have a disability ERG?

• Do you use the DOL self-id video?

– Retention

• When were your disability-related policies last updated?

• Do your policies comply with the ADA?

• Flexible leave policies.

Application Process

• Location where applicants apply

• Location where interviews occur

• Copies of application(s)

• Copies of onboarding forms

• Copies of screening questions and interview

notes

503 Applicants

• We will review your post-offer medical screening

and/or inquiries.

– OFCCP may request your list of rejected

applicants and conduct interviews.

• We will make sure that individualized

assessments were conducted.

– Potential issues

• Post offer screening out of anyone who had a past workers

comp issue

• Post offer screening out of anyone with a back issue.

503 Applicants

• Review Job descriptions and make sure essential

functions are BFQs

• We will review your pre-screening questions. Are

there any knockout questions that could be a barrier?

– Example: Can you work overtime?

• A person with a disability may answer NO.

However, perhaps they can perform overtime

with an accommodation.

503 Applicants

• An employer cannot discriminate against an

employee with a disability when offering and

providing health insurance coverage

• Employers can allay this concern by ensuring

that HR officials and supervisors understand

the available benefits.

• Employers can make sure to include

statements of nondiscrimination on their

benefits materials and websites

Four Areas Where We See Contractors

Fall Short

1. Insufficient outreach

2. Poor quality of outreach

3. Reluctance to self-identify

4. Unnecessary barriers (job requirements, site

accessibility)

Few federal contractors reaching the 7%

utilization goal for IWDs.

Applicant tracking and record keeping important

Reasonable Accommodation

Policy or Practice

Procedures

Interviews

Documentation

503 Employees

• Reasonable Accommodation = Productivity

– What happens if an employee asks for a reasonable

accommodation? Is the process interactive?

• We will talk to workers who took medical leave to

find out about practices, not necessarily what your

disability and leave policies say.

• We will look at retention, promotion and

compensation.

Best Practices

• Maintain a Centralized Reasonable

Accommodation System.

• Ensure That Top Leadership Endorses and

Supports Disability Inclusion Through Video

and Correspondence.

• Coordinate with State and Local Rehabilitation

Agencies.

• Provide Accessible Online Recruiting Tools.

Best Practices

• Provide a Comprehensive and Welcoming

Self-Identification Program.

• Sponsor Disability Inclusion Programs in the

Workplace.

• Employee Resources Groups.

• Chief Diversity/Accessibility Officer (or

perhaps an ADA Coordinator).

• Flexible Work Policies

Revisit your talent strategy

Few companies have reached the OFCCP’s

target of 7%

• How are companies sourcing for talent?

• Do your recruiting agencies assist job seekers with

disabilities?

• If your company recruits from colleges, what effort is

made to find students with disabilities?

• In practicing disability inclusion, it is best to work

with programs or agencies that help people with

disabilities find opportunities that highlight their

skills.

Create/Support a Disability ERG

Only 4% of US workers identify as having a

disability. • A company can show its support for workers with disabilities

by creating a Disability Employee Resource Group (ERG).

• Safe space for employees with disabilities or caregivers to

discuss or share resources within the group. ERG also creates

awareness and builds a community of empathetic workers who

can better understand and support their colleagues.

• ERG can also provide useful recommendations for attracting,

onboarding, and retaining workers with disabilities.

Provide accessible information

Employers are expected to ensure that employees

with disabilities have access to the same

information that similarly-situated employees

without disabilities have. We live in a digital era, we can adapt the information we share in

the workplace. For example, screen readers, screen magnifiers, or

assistive keyboards. Some tools provide closed captioning, stop

moving elements, change color contrasts, and convert text-to-

speech or text-to-braille. Many technology devices offer high-

level customization for people with different needs. Think about

how you share information in your company and look for ways to

adapt them for people living with disabilities.

Offer flexible work options

• Under the ADA, an employee who needs a modified

or part-time schedule because of their disability is

entitled to such a schedule if it will not cause undue

hardship. The absence of flexible work options such

as telecommuting, flexible schedules, leaves, or

reduced work hours may impact employment

opportunities for people with disabilities who are

unable to commute to work regularly. Create an

inclusive environment by offering flexibility. Flexible

work options are also useful for employees who need

time to care for themselves or family members.

503 Resources

• OFCCP has developed a website specific to

Section 503 for additional resources. It can be

found here

https://www.dol.gov/ofccp/Section503-

FocusedReviews/index.html.

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Driving Change Creating Opportunity

AskEARN.org

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Driving Change Creating Opportunity

Recruitment Sources

• College career and/or disability student services offices

• American Job Centers (AJCs)

• Centers for Independent Living (CILs)

• Employment Networks (ENs)

• Vocational Rehabilitation/National Employment Team (NET)

• Targeted job boards and job fairs

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Driving Change Creating Opportunity

Mental Health Toolkit

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Driving Change Creating Opportunity

Awareness

• Involves strategies for educating

workers on mental health issues and

taking action to foster a supportive

workplace culture.

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Driving Change Creating Opportunity

Accommodations

• Accommodations, meaning providing

employees with mental health conditions

the supports they need to perform their

jobs. Common examples include flexible

work arrangements and/or schedules

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Driving Change Creating Opportunity

Assistance

• Assisting employees who have, or may

develop, a mental health condition,

something many employers do through

formal employee assistance programs

(EAPs) or corporate support programs.

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Driving Change Creating Opportunity

Access

• Encourages employers to assess

healthcare plans to ensure or increase

coverage for behavioral/mental health

treatment

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Driving Change Creating OpportunityAskJAN.org 1-800-526-7234

Recognition

•Goal number 3 at

OFCCP is Recognition.

Recognition

Goal number 4Transparency

Transparency

• Improve operational consistency

• Allow for a more collaborative and efficient

approach

• Support contractors’ ability to conduct

meaningful self-audits so they can proactively

identify and address issues with their

employment practices.

CSAL

• Corporate Scheduling Announcement List

– OFCCP posted the CSAL list consistent with the

requirements of FOIA, and did not mail CSALs.

– List with 3,000 establishments

– Includes

• 500 Section 503 Reviews

• 500 Compliance Checks

• 500 VEVRAA Reviews

Compliance Checks

• Job advertisements (including state employment

service listings),

• Examples of accommodations for individuals with

disabilities.

• Prior Year AAP results

– 11246 Goals and good faith efforts to achieve them

– Assessment of 503 and 4212 outreach and

recruitment

• Option to provide offsite or onsite

Evaluation - What’s next

• Scheduling letter gives you 30 days to submit an

AAP.

• OFCCP will grant a one-time 30-day extension for

supporting data where AAPs are provided timely.

Support data is defined as Item 15-22 and is under a

header on the scheduling letter labeled Support Data.

• Idea is that you have maintained your AAP but we are

giving you extra time to gather comp data, etc.

Pre-desk audit stage

• Compliance Officer will contact you within 15

days of sending the scheduling letter.

• CO will provide an overview of the basic steps

in an evaluation, offer technical assistance and

explain the one time 30-day extension for

supporting data.

Desk Audit

• CO will contact you to confirm they have received

the AAP and notify you of any incomplete or

unacceptable desk audit submissions and allow 15

days for you to complete the submission.

• Other than that CO will only contact you to clarify

the information required by the scheduling letter.

• Ideally, desk audits will be completed in 45 days.

ERP

• With the publication of OFCCP’s recent

directive on Early Resolution Procedures, if

after the desk audit and an expedited refined

analysis, OFCCP believes there are strong

indicators of discrimination, OFCCP will

engage the contactor early and work

cooperatively with the contractor to resolve the

violations corporate wide.

Questions?

Closing

• You cannot manage what you cannot measure.

Use your AAP as a management tool.

• It is through this combination of enforcement

of the law and proactive compliance assistance

that OFCCP can work toward equal

employment opportunity when the federal

government contracts for supplies and services

or funds construction projects.

Contact Information

• To stay up-to-date with OFCCP

announcements on cases and policy initiatives,

you can subscribe to receive updates on our

website. At www.dol.gov/ofccp, you will see a

pop-up asking you for your email address.

Enter your email address to subscribe. You

can also simply text “OFCCP Updates” to

GOV311 (468-311) to sign up for mobile

updates.