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

Affirmative Action Dilemmas

Lynn Clements, Esq. – Director of Regulatory Affairs

Beth Ronnenburg, SPHR, SHRM-SCP - President

Berkshire Associates Inc.

August 3, 2016

Legal Disclaimer

• This presentation was prepared by Berkshire for

participants’ educational use. Berkshire is a consulting

firm, not a law firm, and therefore, does not provide

legal advice or services. Participants should consult

with counsel before implementing any strategies or

actions discussed in this presentation and should not

consider this presentation, or related materials, to be

legal advice.

Audience Response System Instructions

• All questions are multiple choice. Choose ONE answer.

• Select the number on your keypad that corresponds with your answer.

• If you want to change your answer prior to the end of the polling time, select a new answer to overwrite your old one.

• The results are 100% anonymous. We are not keeping track of who has which keypad to associate an answer with a person.

Years of AAP Experience

How many years of affirmative action planning experience do you have?

1. 0-3

2. 4-6

3. 7-12

4. 12+0% 0% 0% 0%

0%

20%

40%

60%

80%

100%

0-3 4-6 7-12 12+

Contractor Size

How many U.S. employees are in your workforce?

1. 50-500

2. 501-2,000

3. 2,001-10,000

4. 10,001–25,000

5. 25,001+

0% 0% 0% 0% 0%0%

20%

40%

60%

80%

100%

Audit Activity

How many open OFCCP audits do you have?

1. None

2. 1

3. 2-5

4. 6-10

5. 11-15

6. 16+ 0% 0% 0% 0% 0% 0%0%

20%

40%

60%

80%

100%

None 1 2-5 6-10 11-15 16+

IWD and PV Outreach

and Recruitment

Section 503 & VEVRAA Outreach Evaluation

• CFR 41-60-741.44F(3) & CFR 41-60-300.44F(3)– Assessment of external outreach and recruitment efforts

– The contractor shall, on an annual basis, review the outreach and recruitment efforts it

has taken over the previous twelve months to evaluate their effectiveness in identifying

and recruiting qualified individuals with disabilities (protected veterans). The contractor

shall document each evaluation, including at a minimum, the criteria it used to evaluate

the effectiveness of each effort and the contractor's conclusion as to whether each effort

was effective. Among these criteria shall be the data collected pursuant to paragraph (k) of

this section for the current year and the two most recent previous years. The contractor's

conclusion as to the effectiveness of its outreach efforts must be reasonable as

determined by OFCCP in light of these regulations. If the contractor concludes the totality

of its efforts were not effective in identifying and recruiting qualified individuals with

disabilities (protected veterans), it shall identify and implement alternative efforts listed in

paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations.

Section 503 & VEVRAA Outreach Evaluation

How are you tracking Section 503 & VEVRAA outreach and recruitment efforts?

1. Paper files

2. Homegrown electronic system

3. Vendor provided system

4. I’m not sure/Not tracking

Section 503 & VEVRAA Outreach Evaluation

0% 0% 0% 0%0%

20%

40%

60%

80%

100%

Paper files Homegrown

electronic

system

Vendor provided

system

I’m not sure/Not

tracking

Section 503 & VEVRAA Outreach Evaluation

How are you evaluating your Section 503 & VEVRAA outreach and recruitment efforts?

1. By source

2. By individual activity

3. Both 1 & 2

4. I’m not sure/Not evaluating

Section 503 & VEVRAA Outreach Evaluation

0% 0% 0% 0%0%

20%

40%

60%

80%

100%

By source By individual

activity

Both 1 & 2 I’m not sure/Not

evaluating

Section 503 & VEVRAA Outreach Evaluation

How are you evaluating your Section 503 & VEVRAA outreach and recruitment efforts?

1. Quantitative (referrals)

2. Qualitative (descriptive)

3. Combination of 1 & 2

4. I’m not sure/Not evaluating

Section 503 & VEVRAA Outreach Evaluation

0% 0% 0% 0%0%

20%

40%

60%

80%

100%

Quantitative

(referrals)

Qualitative

(descriptive)

Combination of

1 & 2

I’m not sure/Not

evaluating

Things to Consider

• Quality vs quantity of sources or activities

• There is no requirement for a ‘quantitative’

evaluation other than to consider 44k data

analytics

• Be careful of the credence you give to ‘Source’ in

your ATS if it is being entered by the job seeker

• Requirements if you deem outreach ineffective

Sample Section 503 & VEVRAA Outreach Evaluation

Sample Section 503 & VEVRAA Outreach Evaluation

Analyzing Personnel

Activity

Annual Personnel Activity Analysis

41 CFR §60-2.17(b) Additional required elements of affirmative action programs –

Identification of Problem Areas.

The contractor must perform in-depth analyses of its total employment process to

determine whether and where impediments to equal employment opportunity exist.

At a minimum the contractor must evaluate:

. . .

(2) Personnel activity (applicant flow, hires, terminations, promotions, and

other personnel actions) to determine whether there are selection disparities;

. . .

(4) Selection, recruitment, referral, and other personnel procedures to

determine whether they result in disparities in the employment or advancement of

minorities or women;

Statistically Significant Selection Disparities

What is the first step you take when an analysis of your

personnel activity reveals statistically significant impact by job

group (JG) in your annual AAP?

1. Run a step analysis

2. Run adverse impact by job title within the JG

3. Have the recruiter review the selections to ensure

they can be defended

4. I’m not sure

Statistically Significant Selection Disparities

0% 0% 0% 0%0%

20%

40%

60%

80%

100%

JG step analysis AI by job title Recruiter review Not sure

Federal Contract Compliance Manual (FCCM)

• When a CO identifies a job group with an adverse

IRA . . . the CO will ask the contractor to furnish the

adverse impact determinations prepared during

the evaluated period as a part of its in-depth

analyses for the job titles that fall within the job

group.

Uniform Guidelines on Employee Selection

Procedures (UGESP)

• Section 4(c): Information on impact

“If the information called for by sections 4A and B of

this section shows that the total selection process for

a job has an adverse impact, the individual

components of the selection process should be

evaluated for adverse impact.”

Best Practices

• Prioritize potential problem areas– Entry level jobs, locations on CSAL, high significance or

shortfalls

• Look for patterns among job groups, specific races, steps in process, etc.

• Confirm your disposition codes allow you to complete the appropriate analyses

• Ensure tests and qualification standards are job-related and validated for YOUR jobs

BALANCING RECRUITMENT

AND APPLICANT TRACKING

Hiring Discrepancies

In preparing your annual AAP, you find that there was a

requisition for an Accountant I that resulted in two hires with

different job titles. One person was hired as an Accountant I

and another as an Accountant II. How would you handle this?

1. Leave as is

2. Create a new requisition and move the Acct II hire only into that requisition

3. Create a new requisition and move the Acct II hire into that requisition along with the pool from the first requisition

4. I’m not sure

Hiring Discrepancies

0% 0% 0% 0%0%

20%

40%

60%

80%

100%

Leave it as is New req w/Acct

II hire only

New req w/Acct

II hire & full pool

Not sure

Things to Consider

• Frequency of occurrence

• Are placements in same or different job groups,

plan years, and/or plan locations?

• Availability of data to determine which candidates

met basic qualifications for higher level position

• VEVRAA job listing requirement

INCREASING EMPLOYMENT OF

INDIVIDUALS WITH

DISABILITIES

IWD Utilization Goal

What percentage of your workforce currently identifies as an individual with a disability?

1. Less than 2%

2. Between 2% - 6.9999%

3. 7% or more

4. I’m not sure

IWD Utilization Goal

0% 0% 0% 0%0%

20%

40%

60%

80%

100%

Less than 2% Between 2% -

6.9999%

7% or more I’m not sure

IWD Utilization Goal

Are you considering individuals who declined to self-identify as an IWD in your utilization analysis if they have requested a reasonable accommodation?

1. Yes

2. No

3. I’m not sure 0% 0% 0%0%

20%

40%

60%

80%

100%

Yes No I’m not

sure

Things to Consider

• Timing of voluntary self-identification

• Tracking of data in ATS and HRIS

– Can you identify who did not respond and/or who declined to identify?

• Use of high level disability champions, ERG, OFCCP video

• Whether and how to include individuals who requested reasonable accommodation in IWD utilization analysis

RESPONDING TO OFCCP

REQUESTS FOR EMPLOYEE

INTERVIEWS

OFCCP Manager Interviews

OFCCP has requested to interview employees in a Manager job

title about their pay. OFCCP tells you that a company

representative is NOT entitled to be present. How do you

respond?

1. Allow OFCCP to interview managers without

representation

2. Do not allow OFCCP to interview managers

without representation

3. I’m not sure

OFCCP Manager Interviews

0% 0% 0%0%

20%

40%

60%

80%

100%

Allow OFCCP to

interview managers

without

representation

Do not allow OFCCP to

interview managers

without

representation

I’m not sure

Federal Contract Compliance Manual (FCCM)

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

Best Practices

• Discuss scope of manager interviews with OFCCP

– Presence of company representative may be negotiable

– Probe to confirm that interviews will not raise questions that involve the employee’s managerial role

• Prepare managers about the difference between being asked questions as an employee versus as a manager

• Inform managers of their right to a representative

Questions

• To obtain a copy of the presentation with the

results included:

– Give a Berkshire staff member your business card

and/or;

– Email bethr@berkshireassociates.com or

lynnc@berkshireassociates.com asking for a copy of the

presentation

About Berkshire Associates

For over 30 years Berkshire has offered services and software to overcome HR challenges.

Affirmative Action

•Plan Preparation Services

•OFCCP Audit Support

•Adverse Impact Analyses

•BALANCEaap Software

Compensation

•Base Pay Structures

•Market Analysis

•Salary Equity Analyses

Applicant Management

•Compliance Assessment

•BALANCEtrak Software

Training

•Affirmative Action

•BALANCEaap

•Collaborative Plan Development

•Webinars & Private Training