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Now that the election results are in, it appears self evident that the path outlined in various regulatory and sub-regulatory proposals will continue to guide the enforcement efforts of the OFCCP. Some of the uncertainty of the pre-election period has been resolved so it is time to think seriously about what your company will need to do to best position itself to comply with whatever changes may be ultimately implemented. Many companies are hesitant to make costly changes to their electronic and other systems before the final version of these reform efforts are implemented. However, there is more that you can do than go to seminars and find out that no one has timelines or an inside track on what will really become law.

Self Assessment

Background Information

In the current climate, it is important to do more than simply run your IRAs and evaluate your AAP data from last year. A broader overall assessment that is separate from your routine AAP data crunching can go a long way toward preparing you to more quickly adapt to any new proposals along the lines of those already published. Your organization needs to closely review the latest version of each of the proposals: the revised scheduling letter, the Section 4212 Vets regulation, the Section 503 disability regulation, and the questions published relative to the concept of the compensation data tool. Whoever is your internal go to person on the proposed enforcement reform should also be an expert in what the current regulations require. This will provide an internal resource with the critical background information that you will need to commence a proactive strategic assessment initiative. I suggest that you use someone who works for the company who really understands EEO from a practical implementation perspective. This may mean that the legal staff, while a critical member of the strategic effort, may not be the best choice for this internal expertise.

Strategic Partners

The individuals with the background information on the current and proposed compliance requirements cannot prepare your company in a vacuum. One of the most common situations OFCCP encounters in its reviews is a disconnect between what headquarters says to do in its corporate policies and what the businesses or facilities in the field of the company actually do. In order for you to really understand where you are prepared and where you are vulnerable, you will need to include those whose actions actually implement the policy in your strategic planning group. In addition, you will need your EEO staff, diversity staff, HR staffing people, data staff, training and development staff, compensation staff, legal, recruiters, and maybe select decision makers. Sometimes these entities overlap and sometimes they have very little understanding of how each potentially impacts compliance. It is important to know which of these is true of your company.

Gaps Analysis

Working together, these strategic partners need to identify what systems are actually in place throughout the company to ensure compliance. By “actually in place”, I mean commonly understood, consistently communicated, and routinely followed. Discuss candidly the challenges you currently face with compliance before any of the proposed changes are factored in. Before implementing any new procedures to address these, discuss the impact any proposed changes will have on the day-to-day business needs of the units of your company. This is important because it is the day-to-day business demands that often entice managers to lower the priority put on compliance. If your fixes are not a good mesh with their business realities, you invite non-compliance.

The next step is to candidly assess what you really need to do differently if the proposed regulatory and sub-regulatory reforms or something very close to them are passed. What would you need to do differently, for example, to implement an anonymous survey of incumbent staff for disability status? How would that term need to be defined for incumbent staff so that you avoid undercounts or over-counts in your data? How will this data be tracked and maintained and by whom? If the form is supposed to be anonymous, what safeguards are in place to ensure that they remain so? For example, how to make sure that you cannot track the responses back to the computer of the person responding or ensure that responses are batched so that individuals in single person units are not easily traced back to their response. This is just an example. You will have to carefully review and think about each of the new requirements to prepare yourself to take the actions necessary should they need to be implemented.

The regulatory proposals in general require training targeted at particular groups of employees in your organization. Some organizations have not routinely provided this training to these target audiences. How do you plan to ensure that this training is done and in such a way that it does not create unnecessary concern and confusion among your staff? What systems need to be made consistent within your organization to ensure that the material used for training actually applies across the entire organization?

In a similar vein, the proposal focuses more on company-wide policies and the prospect of enterprise-wide compliance efforts. How much autonomy do your facilities or business units currently have? Are there opportunities for at least some common sets of principles that can bring coherence to your hiring, compensation, or other employment processes without destroying the benefits of autonomy and customization that add value to your business? If a problem in compensation, for instance, is noted in one area of your business, will the explanation given for that disparity be undermined by a completely different approach to the same compensation challenges in another area of your business?

Goals Analysis

What is your track record for accurately setting and meeting hiring goals? Outreach and recruitment will continue to be a major emphasis especially under the Section 4212 and Section 503 proposals. What kind of outreach are you really doing? One of the major challenges of recruitment is the fact that once the decision is made that additional staff are needed, the company often wants and needs a quick turnaround for filling the position. This is not the time to begin your search for qualified, traditionally underrepresented, protected group members. Does your outreach involve establishing personal relationships with potential sources of employees so that they understand what your compliance obligations are and what skill sets you really need? A heavy emphasis will be put on whether or not you are really making an effective effort to diversify your workforce. While it has always been important that jobs are posted as required with the various state and local employment offices, this is only part of the outreach requirement. Do you effectively track whether your recruitment sources actually send you viable candidates? What changes do you need to make in order to ensure that this happens?

Building the types of connections to the target communities may be the stuff of years, not weeks. It may be helpful to establish 3 to 5 year plans for outreach so that when opportunities arise that require special skills, you already know who in those communities possess the skills necessary to be a viable candidate. The bottom line need to ensure equal opportunity does not require that you ignore qualifications, but rather that an affirmative effort be made to find and connect with qualified applicants in a variety of communities which should ultimately result in a more diverse workforce. This may be one of the most challenging efforts since it is easy to simply hire someone for the appearance of reaching out to veterans, for example, without giving both the organization and the veteran a reasonably good chance at success. We are not talking about charity here; we are talking about removing and overcoming artificial barriers to employment grounded in impermissible stereotypes. It respects the dignity of the applicant to be able to say you were hired because you were the most qualified for the position.

The personal relationships with potential recruitment sources should include the right people. The recruiters need to have these personal relationships as does diversity, EEO, and HR. If you are using a job service to provide you with candidates, it is important to know how well that service is connected with the communities you are targeting for outreach. The more personal their network is with these communities, the more likely candidates with the qualifications you need will be using their service and thus enriching your applicant pool.

Managing the Message

What kind of image does your company have with respect to EEO compliance? How proactive are you in building that image? One of the upsides of the former Exemplary Voluntary Efforts program was that it incentivized companies to collect their EEO story in a single document. Sometimes it is not that the company is passive about EEO, but rather that it appears passive because no concerted effort is being made to make sure that the positive actions the company is taking are effectively communicated. In our day and age, messages can easily build to critical mass even when they are not accurate. Often a company can be attacked successfully in its strongest place with the wrong kind of messaging. Strategic planning around messaging does not mean making things up or exaggerating what you do. Rather, it means thinking about how to reach a desired audience with the information they need to appreciate how inclusive a company you actually are. OFCCP will be part of that desired audience. The more compelling your message about proactive efforts in affirmative action and equal employment opportunity, the more credible you will appear to the agency and the more likely you will not be viewed as out of compliance. Although the award system has vanished, you may still find yourself being the company they mention when discussing best practices in their external communications.

Setting Benchmarks and Objectives

All of this brainstorming has to eventually be distilled down into an actual strategic plan with action steps and benchmarks. After the gaps and challenges are clearly identified, decide who in the company will be responsible for reforms in that area. If it is everybody’s responsibility, it may wind up being no one’s responsibility because there is no accountability. The entire strategic group may not need to work on every project. Depending on their area of expertise and potential impact on their daily business responsibilities, subgroups can be formed to spearhead particular reforms.

Prioritize the areas where you are most vulnerable as a company and tackle them first. Even these challenges might need to be broken down into manageable chunks so that a little bit of something gets done which will add up overtime to meaningful change rather than tackling everything at once and getting nothing actually accomplished. Be concrete about what the output is for each subgroup. The output needs to be more than just a report. I have seen too many reports from too many subgroups substitute for actual action. You need to start first with the gaps in compliance under the law as it currently stands. How accurate is your current data analysis? How long does it take? Is anything ever done with the information that results from your data analysis? Are your gains in hiring offset by your losses in attrition? What are the causes? If you are not satisfied with the answers you get to these questions, you should devise specific action plans to address the problems. Again, these action plans have to take into account the impact on the business if they are going to be successful.

After addressing current gaps in your compliance effort, you should assess what action steps would be most critical to ensure compliance as defined in the proposed enforcement initiatives. I do not recommend investments based on guesses about the final requirements, but I do think it is prudent to have a plan that identifies what would need to be done, how much it is likely to cost, and how you would go about doing it if required.
This can be very beneficial for budgeting, especially during a time when companies are trying to decide where to invest their funding.


It is an old saying that “to fail to plan is to plan to fail.” There is some truth in old sayings. What I am suggesting here is that instead of worrying about the changes to come, do some constructive internal strategic planning to give yourself and your company the best opportunity to achieve and maintain compliance whichever way the wind blows.



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