Picture this (perhaps familiar) scenario:
You received a letter from the Department of Labor notifying you that OFCCP has selected one of your locations for a compliance review.
You responsibly spent the 30-day notice period gathering relevant policies. Check.
You confirmed your workforce data and double-checked your availability and utilization analyses. Check.
You scoured for documentation of good faith efforts regarding any unmet goals from the prior year’s AAP analyses. Check.
You verified recent efforts to recruit and advance qualified veterans and disabled individuals were documented and effective. Check and check.
And, you gathered summary “applicant” (as defined by the Internet Applicant Rule) numbers and proactively analyzed your hiring decisions to ensure there is no adverse impact to suggest systemic discrimination. You’ve even looked for sub-minority and “reverse” (i.e. impact disfavoring males or nonminorities) adverse impact, and you’ve confirmed you’re “clean.” After all, you’re no rookie to OFCCP audits. You’ve done this before. Shoot, by now, you’re a pro. You know what OFCCP knows: applicant-to-hire discrimination is the greatest source of back-pay liability in compliance reviews and, when it comes to analyzing employer hiring decisions, “big numbers are bad numbers.” Check.
You submit your AAP and supporting documentation knowing you’re in a good place – no statistical indicators of discrimination, supportable policies, and documented and effective outreach efforts. This audit should be “open and shut.” Sure, OFCCP audits are taking more than a year to complete these days, but yours will be different – no other employer has prepared as well as you have.
Then, you get an email from OFCCP. You’re sure it’s a Notice of Compliance. You open it and – nope – a twenty five-point follow up request from the Assistant District Director overseeing your review. She’s seeking, among other things: “An electronic copy of your applicant tracking spreadsheet(s) in an ‘Excel’ format with all of the data fields created to track all job seekers and applicants.” Seems easy enough. You are operating in good faith and have good intentions to cooperate in the review. Why wouldn’t you? But, wait. You’ve overlooked a footnote on the last word – “applicants”:
OFCCP requests that information be provided for all job seekers and applicants as maintained, unredacted/unrefined. If you determined a job seeker was not an applicant due to the Internet Applicant Rule, please so state and note the reason the Internet Applicant Rule was applicable.
Huh?! Is that a request for an “expression of interest log?” Who’s ever heard of such a thing? You read it again. Yep; it sure looks like a request for all data on all job seekers (despite the Internet Applicant Rule). It even asks for:
- a data point noting whether each expression of interest is from a “job seeker” or an “applicant;” and
- why you determined any “job seeker” was not an “applicant”
I don’t know what kind of ATS or reporting systems you work with, but I’d be shocked if those points were in your data export.
This isn’t a one-off scenario, folks; we’re seeing this request from different District Offices in different OFCCP Regions. It’s scary. What is OFCCP looking for?
The conspiracy theorist in me wonders if they’re digging for larger applicant pools. They know larger pools are more likely to result in statistical indicators of discrimination – even when there are very small differences in selection rates. “Job seeker” data also increases the risk in and potential liability from an audit by improperly inflating OFCCP’s “shortfall” calculation and settlement expectations. (I’m currently seeing this firsthand, defending hiring discrimination violations based on “job seeker” – not “applicant” – adverse impact in multiple compliance reviews (the employers provided this data before we were involved)).
Is that why they’re asking for expressions of interest?
“Why” is a good question; but, a better question may be “Whether.” Whether OFCCP may issue this request absent statistical indicators or other evidence drawing focus on your applicant data; and whether we have to respond? The Paperwork Reduction Act (44 U.S.C. §§ 3501-3521) requires any repeated OFCCP request be evaluated for burden and specifically approved by the Office of Management and Budget (OMB). OFCCP knows this; it’s new Scheduling Letter and Itemized Listing – i.e. the request it uses to initiate thousands of audits each year – toiled in the OMB approval process for years. So, whether its new template request is permissible and enforceable turns on whether OMB has analyzed the burden and benefit associated with employers providing job seeker data.
OFCCP’s regulations and Item 18 of its Scheduling Letter’s Itemized Listing, both of which OMB has reviewed and approved, require that employers’ affirmative action programs analyze their “[p]ersonnel activity” (including “applicant flows” and “hires”) “to determine whether there are selection disparities” and provide OFCCP with those summary numbers during an audit. They do not, however, define the terms “applicant” or “applicant flows.” In fact, the only guidance from OMB regarding the definition of the term “applicant” comes in the context of “Internet Applicants,” which explains the subset of job seekers that must be analyzed as a part of affirmative action planning.
So, under the regulations and Itemized Listing, the terms “applicant” and “job seeker” are not the same. Even, OFCCP’s “expression of interest log” requests – which seek information on “all job seekers and applicants” – admit the terms are different. Simply put, because OFCCP’s request for an “expression of interest log” appears to be “standard issue” rolled out across Regions and expands OFCCP’s “right” and employers’ burden beyond OMB approved “applicant” data, the Paperwork Reduction Act prohibits it.
If that weren’t enough, OFCCP’s request for an “expression of interest log” contradicts its own guidance. In the Frequently Asked Questions (FAQ) section of its website, OFCCP states it will take employer applicant submissions at face value unless they significantly diverge from availability statistics:
How will OFCCP determine which desk audit submission to accept at face value and which to examine in depth in order to ensure that the proper race/gender/ethnicity information is included?
The Internet Applicant [R]ule emphasized that OFCCP will compare the proportion of women and minorities in the contractor’s Internet Applicant pool with labor force statistics or other data on the percentage of women and minorities in the relevant labor force. . . . If there is a significant difference between these figures, OFCCP will investigate further as to whether the contractor’s recruitment and hiring practices conform with E.O. 11246 standards.
Now’s the time to ask, “Why?” If (1) OFCCP interprets the Internet Applicant Rule to not require disclosure of job seekers (and won’t investigate application of the Internet Applicant Rule) without “a significant difference” between the applicant pool demographics and applicable availability data and (2) federal law prohibits the request without OMB approval, why is the Agency asking for an “expression of interest log?”
We may never know the full truth, but I have a theory. Compliance officers are trained (and expected) to follow the Federal Contract Compliance Manual (FCCM) and the Standard Compliance Evaluation Report (SCER), Appendix A-1 to the FCCM, when conducting a compliance review. The fourth page of the SCER includes a dedicated “check box” regarding whether the employer utilized the Internet Applicant Rule in its AAP submission. OFCCP’s FAQs also put us on notice that it believes “[a] contractor would have to explain whether it employed the Internet Applicant definition as a part of a compliance evaluation.”
So, maybe, just maybe, this request is a calculated attempt to ensure they can “check-off” this required portion of their review process, while taking a shot that you’ll give them more? Let’s play this option out. Any seasoned negotiator will tell you that you won’t get it if you don’t ask for it. Here, by asking for data on all job seekers, OFCCP would learn whether an employer utilized the Internet Applicant Rule, per the SCER and FAQs. And, as a “plus-factor,” any employer who follows OFCCP’s direction would permit the Agency to analyze larger applicant pools, resulting in additional discrimination findings and, ultimately, a greater number of more lucrative settlements.
That is good press, helps to justify OFCCP’s budgets, and “resolves” some potential employment discrimination – all “wins” for OFCCP. And, what’s the downside to asking? A few employers may push back to protect their rights and insist OFCCP follows the rules? Most won’t. I’m not suggesting OFCCP has undertaken such a devious calculation, but if they did I would understand the conclusion.
Now, back to our pending request: what kind of response is OFCCP entitled to? After all of this, the answer should be clear – “applicants,” yes; “job seekers,” no. At least not without exploring the particularized reasons for the request with the compliance officer, attempting to find an alternative, and potentially elevating your efforts to protect your rights to the Assistant District Director and District Director.
Why not discuss the request with the compliance officer, including perhaps whether and how you used the Internet Applicant Rule in preparing your summary numbers? This kind of discussion may even resolve the Agency’s request as it relates to a log of “applicants.” Ultimately, if OFCCP is prepared to issue a Show Cause Notice for denial of access, you (with input from leadership and Legal) will have to weigh the associated risks and costs, including the cost of a formal defense. Every organization’s risk tolerance is different.
They say the road to “someplace hot and not-so-nice” is paved with good intentions. Let’s keep our compliance reviews on the right path and our “good intentions” in – check.
To learn more about best practices in equal employment opportunity, OFCCP compliance, and audit defense, as well as other ways to minimize risks for your organization, contact Chris Patrick at 303-876-2202 or [email protected].
This has been prepared for informational purposes only and does not constitute legal advice. Individual factual situations vary and are determinative of appropriate strategy – this communication is not a substitute for any professional advice about your organization’s particular circumstances.
All original materials copyright © 2015