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With the flurry of changes and ever-expanding obligations for federal contractors over the last eighteen months, employers have undoubtedly spent countless hours and resources “getting into compliance” and updating documents and forms. With each new obligation, employers have reviewed and altered everything from job advertisement taglines and purchase orders to online applications and self-ID forms.
Yet with all of these required changes, there is one important document that federal contractors have likely neglected – the job description. While there are no new regulations explicitly requiring changes to job descriptions (in fact, there is no law requiring employers to even have job descriptions in the first place), there are several rules that impact the way we should be looking at these documents. The new rules for physical and mental job qualifications, the recently-issued Pay Transparency regulations, and OFCCP’s increased scrutiny of applicant data should all impact the contents of employers’ job descriptions. Indeed, a well-crafted job description can help contractors show the Agency they are in compliance and avoid violations in audits.
Physical and Mental Job Qualifications
OFCCP’s new regulations under Section 503 of the Rehabilitation Act (“Section 503”) added many new obligations for federal contractors concerning individuals with disabilities. However, the requirement to review physical and mental job qualifications is not a new obligation. Federal contractors have long been required to periodically review job qualifications to ensure they do not screen out individuals with disabilities (unless strictly for job-related reasons) and the job descriptions are consistent with business necessity.
What did change, however, is a new requirement that contractors establish a schedule for reviewing the continuing appropriateness of these qualifications. Moreover, OFCCP’s new scheduling letter, which the Agency began using in October 2014, requires contractors to submit evidence of that review in a desk audit. Item 22 of the Scheduling Letter requests:
Your most recent assessment of physical and mental qualifications,
as required by 41 CFR § 60-300.44(c)and § 60-741.44(c), including the
date the assessment was performed, any actions taken or changes made
as a result of the assessment, and the date of the next scheduled assessment.
These new rules have resulted in increased attention to job descriptions by Compliance Officers in desk audits. In almost every audit, we are seeing Compliance Officers scrutinize any physical or mental job qualifications contained in job descriptions or job postings. So what do we need to know about physical and mental job qualifications to make sure they survive this scrutiny?
Physical and mental qualifications can act as a barrier to employment for individuals with disabilities. Under the Americans with Disabilities Act (“ADA”) and Section 503, any job requirement or device that screens out disabled individuals may be considered unlawful unless the employer can show that the requirement is job-related and consistent with business necessity.
Therefore, employers should make sure any physical or mental job qualifications are absolutely necessary – and strictly limited to – the performance of the job. It is not uncommon for a hiring manager to include physical or mental job qualifications (e.g. “must be able to lift 50 lbs.,” “must be able to comprehend instructions”) only because the manager had always seen qualifications on other job descriptions and assumed some sort of restriction needed to be included. If those qualifications are not actually necessary to the performance of the job, you will have a tough time defending them with OFCCP.
Additionally, employers need to regularly review legitimate, existing job qualifications to make sure they are still necessary to the performance of the job, as OFCCP’s new rule requires. In that regard, one of the biggest pitfalls for employers is outdated job qualifications. For example, let’s say an employer long ago established that a warehouse laborer position needs to be able to lift up to one hundred pounds in order to be able to stock boxed inventory on shelves. Since then, the employer started using mechanized lifts to move boxes around the warehouse more quickly and reduce the potential for employee injuries from lifting the heavy boxes. Is the “must be able to lift one hundred pounds” job qualification still necessary? If an applicant applied for the job, but was unable to lift one hundred pounds, would it still be fair to deny that applicant the job on the basis of their inability to meet the long-standing physical requirements, despite that machines can be used to do the heavy lifting? To OFCCP, the answer would be “no.” To OFCCP, that would be considered unlawful discrimination under Section 503.
To help prevent outdated qualifications from becoming discriminatory screening devices, OFCCP’s new regulations under Section 503 require contractors to set and adhere to a schedule for the regular review of physical and mental job qualifications. But what type of schedule is really required? Does OFCCP expect us to pick a date on which we will review all job qualifications on an annual basis?
Certainly, in an audit situation, contractors need to be able to submit details of when qualifications were and will be reviewed. However, is it necessary to review jobs that were not and will not be posted in the affirmative action plan year? If there is no opening, how could there be any unlawful screening of individuals with disabilities?
A more practical approach is to review job qualifications each and every time a job is posted. That will allow the employer to gauge in real time whether the qualifications are absolutely necessary to the performance of the job. And if you take this approach, the date of the last “scheduled” review for OFCCP audit purposes is not a single date, but is a list of dates corresponding with actual job openings.
Finally, be on the lookout for any physical or mental requirements that include a pre-employment test to determine whether the requirement is met. To OFCCP (and the EEOC), pre-employment assessments are a potential “red flag” that large numbers of applicants can be screened out without any individualized consideration. For example, earlier this month, OFCCP announced a settlement with a distributor of fastening products for $1.25 million based on the Agency’s claim that the company’s pre-employment test disproportionately screened out minorities without having been properly validated to show the test was job related and consistent with business necessity.
If your job description mentions a pre-employment test or screening process, consider deleting that language. And, if you must use a pre-employment test in your hiring process, it is critically important that the test be analyzed for adverse impact and validated – ideally by an independent third-party under attorney-client privilege.
Pay Transparency Executive Order
On September 11, OFCCP published its final rule implementing Executive Order 13655. The “Pay Transparency” rule, which goes into effect January 11, 2016, prohibits federal contractors from retaliating against employees (including supervisors) and applicants for asking about, discussing, or disclosing compensation information.
One of the key components of the regulations implementing the Executive Order is the requirement to review policies and practices to ensure they do not prohibit or tend to prohibit the discussion of pay. This could be a tricky undertaking, particularly for those many employers who have long had an unspoken “hush rule” when it comes to discussions of pay in the workplace, as has been common in corporate environments. Under the new Executive Order, contractors must work to eradicate that culture of silence and change any policies that penalize employees (and applicants) for discussing or disclosing pay information.
So what about human resources professionals and other employees whose job duties require them to have access to confidential pay data information? Are they free to share that information without consequence?
No. OFCCP carved out a defense from the new Pay Transparency rule that allows contractors to discipline employees who violate the confidentiality requirement of their job position. This is being called the Essential Job Functions Defense.
According to OFCCP, if an employee’s access to pay information “is necessary in order to perform that function or another routinely assigned business task…” or if the employee’s duties include “protecting and maintaining the privacy of employee personnel records, including compensation information…,” then the employee may not disclose that information. If an employee has access to pay data as part of the employee’s essential job functions, then the employee may be disciplined for disclosing such data (provided that the recipient of that information did not also have access to the information).
It is important to note, however, that the final rule characterizes this as a “defense” to liability under the Pay Transparency Executive Order, rather than an exception to the rule. Interestingly, the proposed rule originally characterized this scenario as an exception, but the DOL decided to make it a defense instead. The difference between an exception and a defense is in who would bear the burden of proof. If it were an exception, the charging party would bear the burden of proving that he or she did not fall under the exception. In other words, the employee with access to sensitive pay data would have needed to show that access to pay data was not one of his/her essential job functions. As a defense, however, it is the employer that bears the burden to prove that the employee’s access to pay data is part of his/her essential job functions.
This is where the job description comes in. If the job description notes that access to confidential pay information is an essential function of the job, that may be enough to end the inquiry and establish the defense. Conversely, a contractor could have a hard time satisfying its burden if there is a job description that lists essential functions, but fails to note that the access to confidential information is one such essential function.
To ensure the best chance of establishing the Essential Job Functions Defense, it is important to establish early on which employees have access to pay data and whether that access is due to the employee’s essential job functions. In that regard, where applicable, employers would be well served to include as a job responsibility, “maintains confidentiality of compensation information.”
Basic vs. Preferred Qualifications
As mentioned in my previous article on requisition best practices, adverse impact analyses of employers’ hiring processes have always been and continue to be the Agency’s “bread and butter.” Applicant-to-hire adverse impact is by far the most successful enforcement technique for OFCCP in identifying systemic discrimination and bringing back large monetary settlements. And, the Internet Applicant Rule, including the right to exclude candidates who do not meet the basic qualifications of an open position, is by far the most powerful tool contractors have to prevent such adverse findings and settlements.
Given the ease of applying through online applications, many applicants never bother to consider whether they actually possess the basic qualifications for a position. As a result, large numbers of “applicants” are often never considered because they do not meet those minimum qualifications. Under the Internet Applicant Rule, contractors may properly exclude these applications from statistical analyses of the hiring process to get a more accurate picture of the actual decision making process. Removing these unqualified candidates from the analyses often goes a long way to reducing or eliminating what would otherwise be statistical issues.
However, in audits, OFCCP doesn’t always simply accept what the contractor says is its applicant pools. Over the last couple of years, the Agency has been getting more and more aggressive in audits, and one big development we have seen is an increase in requests for “all expressions of interest” – meaning details on all candidates who submitted an interest in the position regardless of whether they meet the technical definition of “applicant” under the Internet Applicant Rule – to audit whether contractors are applying the Rule correctly.
If OFCCP challenges the exclusion of a candidate for failing to meet the basic qualifications of a position, contractors may be forced to prove not only that the candidate didn’t possess the qualifications, but also that the qualifications actually existed and applied to everyone who holds or applied to the position.
For that reason, it may be prudent to document the existence of basic qualifications, not only in job postings, but also in job descriptions.
So what is a “basic qualification?” For the Internet Applicant Rule to apply, the qualification must be (1) non-comparative (not rooted in a comparison of one candidate to another); (2) objective (not based on a hiring manager’s subjective opinion); and (3) job related and consistent with business necessity. For OFCCP to accept the basic qualification as a legitimate screening tool, it also must be uniformly applied.
This is different than a “preferred qualification,” which is a comparative factor that an employer may use to differentiate between two qualified candidates. Preferred qualifications cannot be used to exclude candidates from consideration under the Internet Applicant Rule.
For example, let’s say an employer was seeking a candidate who was eligible to work in the United States, who holds an engineering degree and has a positive attitude and strong work ethic for an Engineering position. The eligibility to work in the United States and degree requirements would likely be considered basic qualifications because they are non-comparative and objective. The requirements of a positive attitude and strong work ethic, however, would be preferred qualifications because they are comparative (i.e. positive attitude as compared to others) and completely subjective. Under the Internet Applicant Rule, these latter two “requirements” could not be used to exclude candidates from the definition of “applicant.”
Including the basic qualifications of a position in the job description (in addition to each job posting) may be a best practice because it could help demonstrate to OFCCP that the requirement is valid and consistently applied to both applicants and employees.
That said, many employers may shy away from including basic qualifications in a job description because the requirements of a position may change over time or based on the current need of the company. But if the requirement can change, is it truly a basic qualification of the position? Or is the position a different position all together – one that requires different qualifications? If it is a different position, there should be a different job title and job description. Otherwise, we will have a hard time explaining the difference to OFCCP.
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In this new era of federal contractor compliance, when new rules seem to be implemented every week, it is critical that employers know what is in their current policies and employment documents, and keep apprised of whether adjustments are needed to put themselves in the best possible situation for defending an OFCCP audit.
Given the potentially damaging impact of failing to revisit or update your company’s job descriptions, the best practice is to regularly review those descriptions as either part of an overall compliance review or as a separate project. As always, in-house counsel or outside counsel should be involved to ensure the many requirements for complete compliance are met.
To learn more about job description best practices and other ways to minimize risks for your organization, contact Scott Pechaitis at 303-876-2201 or [email protected] or Lisa Marsh at 303-876-2216 or [email protected].