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For federal contractors, simple things such as failure to post open positions with local state departments of labor or neglecting to cast a wide employment “net” can lead to incompliance. US DOL OFCCP is looking for these violations to include in their yearly evaluations. Violations, especially financial violations, are the only ways a Federal Agency can justify its existence. OFCCP is no exception; President Obama increased OFCCP’s budget by a whopping 30% in FY 2012. For any industry, this is a substantial increase, but for OFCCP – a government sector – it was huge. Each year since, the budget has continued to increase, though not by such a significant percentage.
Overall, the increased budget means more compliance officers, more scrutiny, more inquiry, and more ways to find issues. In some areas, the increased budget has allowed the agency to hire up to 100% more compliance officers.
In order for OFCCP to rationalize its budget, discrimination has to be uncovered in any way possible. District Directors, Assistant District Directors, and even the compliance officers, get a bonus at the end of the year that is directly dependent on securing financial violations.
Since 95% of financial violations come from hires, this should be the primary consideration for organizations. There needs to be concerted attention on the Applicant Tracking System and how it should work on your behalf by following hiring policies and procedures that depict, and result in, a compliant Applicant Flow Log (AFL).
The only gift the US DOL has ever provided to private industry is the definition of an Internet applicant. This gives the company control on who really is an applicant. This will help to condense a large applicant pool that might lead to adverse impact.
The candidate meets the definition of an Internet applicant if the following criteria are met:
This criteria is straightforward and also allows for the collection of physical applications and resumes for the open position.
This gives the employer control on who stays on the Applicant Flow Log. Eliminate anyone who has applied after the closure date, does not fill out the application completely, or has any other disqualifying factor.
The applicant has at least the minimum requirements for the job. A person with a GED would not be considered for a positon as Chief Medical Officer, logical as it appears, and understandably should not stay on the AFL. Yet before this definition, any applicant would have had to be included.
If an applicant does not show up for an interview nor calls to reschedule, or calls to say he/she is no longer interested, or has another position, this applicant should not remain on the AFL.
A caveat: even if an applicant is removed, all applications need to be saved for two years as per regulations. It is our recommendation to only accept applications on the Internet. If an individual with a disability (IWD) wants to apply and is unable to do so through the company’s website, the company website should include a telephone number and e-mail that is ONLY to be used by those who need special assistance. There should be a caveat saying that any other call or e-mail will be disregarded, as the phone number and email address are provided only for individuals with disabilities who would like to apply.
Below are more helpful hints to prepare for a compliance evaluation:
The TEN DO’s
1 – Be Prepared
Make sure you have an updated AAP in place.
2 – View the compliance evaluation as a learning experience
The COs are the experts in their field. Take this as an opportunity to learn from them.
3 – Maintain all records associated with employment activity – interview notes, etc.
Tracking the personnel activity data alone is not sufficient. You must maintain the records to support and document your position.
4 – Document and maintain specific information on good faith recruitment efforts
Recruitment documentation should include specifics, not an overall picture in the year-end report. Specifics include:
5 – Provide correct and complete AAP and support data for the desk audit
At the beginning stages of the compliance evaluation (desk audit), the CO begins to get an overall picture of your company and its practices.
6 – Have key people and key policies and procedures available during the onsite visit to explain your company’s policies on compensation, hiring, etc.
Give the CO specific and accurate information. This can only come from the people actually involved in the process.
7 – Make sure there is solid commitment to EEO/AA at the top
The tone for the company’s commitment to EEO/AA comes from the top.
8 – Consistently apply personnel policies/guidelines
Inconsistent application of policies and procedures opens the door for subjectivity.
9 – Hold managers accountable for implementing EEO/AA requirements
In order to make EEO and AA work, managers and supervisors need to be held accountable for their actions.
10 – Periodically review compensation system and its impact on covered groups vs. others
Don’t wait until OFCCP comes in for an evaluation to find there are disparities in your compensation system that negatively impact protected groups.
The TEN DON’TS
1 – Don’t be afraid to ask questions if you don’t understand government procedures or terminology
A compliance evaluation can seem to be extremely complicated and burdensome if you don’t understand what the CO is doing and why.
2 – Don’t view the compliance evaluation as an adversarial process
A CO’s efforts during a compliance evaluation are to get you in compliance with the regulations.
3 – Fail to conduct necessary self-audits on a periodic basis
4 – Fail to be proactive in your recruitment efforts
First of all, recognize that your recruitment efforts are clearly reflected in the composition of your workforce.
5 – Apply faulty application and selection procedures
Make sure you have a good system in place to capture the race/sex of applicants.
6 – Fail to develop effective race/sexual/disability harassment prevention programs
Issue a strong message about the lack of tolerance for race/sexual harassment.
7 – Fail to develop a system to resolve conflicts between employees and/or management.
8 – Fail to designate a neutral EEO pre-decision maker to review key employment decisions
The responsibility for final decisions on employment actions should not rest on a single individual.
9 – Don’t be unfamiliar with your Affirmative Action Program (AAP)
Know the different components of an AAP.
10 – Don’t withhold information
Each company and each situation is unique, but these guidelines of “do’s” and “don’ts” are a good start for federal contractors who are hoping to have a smooth and simple compliance evaluation. The more prepared you are for the CO’s arrival, the more likely you will be able to get through the process quickly and without issues.