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When job vacancies are not posted -- typically because they are to be filled internally and are, therefore, exempt from the VEVRAA requirement -- the contractor assumes an additional burden/risk to demonstrate that the awarding of those opportunities is, in fact, non-discriminatory. This is particularly true when those opportunities are "high value" (as these will be) and where the movement of the internal employees will be visible when the selection process will be far from transparent. What you propose, i.e., selection without posting, is not in and of itself a violation of OFCCP regulations, HOWEVER, it's important that you recognize that what is involved here IS a competitive selection and, therefore, you MUST keep records of the persons that were "considered". Although this process will not involve "Internet Applicants", the process of identifying "high potential leaders" will be perceived -- and is almost certainly, in fact, a choice from among what could be (and would be!) argued as "similarly situated" people. Whether that perceived group of "similarly situated" employees includes all the people in the same job titles, at the same level, same department, same salary grade will depend on who is doing the perceiving. It might be the OFCCP and/or it might be the employees who's "ox was gored" -- that is those that were NOT identified as "high potential" but who might see themselves as qualified or more qualified than the persons so identified. So, when you run the numbers, construct that "pool" of persons from whom the designation "high potential" was drawn as widely as could potentially be argued and identify the attribute/qualification for each selection that set him or her apart from the others in that putative pool. Insist that the person(s) making the selection decision articulate job-related reasons why s/he and not the others were determined to be "high potential". Think carefully about the process, recognizing it is a "selection"; in this case for training/development -- to prepare for still further advancement. Document it fully albeit confidentially. Ensure that the "tests" the contractor will use are as objective as possible, recognizing that the assessment of "high potential" IS likely to be at least somewhat subjective. Ensure that the selection criteria are not LIKELY to disproportionately exclude any particular race/ethnicity or sex. Examples of some that MIGHT are the particular university where a degree was earned, political/religious and/or social affiliations, unaccented speech, family responsibilities, physical characteristics, e.g. Also personality and psychological tests! Even formal performance appraisal ratings MIGHT be suspect. (Do you know, for example, the percentage of men versus women at the same level/ by the same supervisor who are rated "Outstanding"? Blacks versus Whites, Asians, or Hispanics?) It is necessary that the persons making these decisions write – or be interviewed by someone who will WRITE – down their thinking. Remember that “consider” – in the OFCCP’s vernacular – doesn’t mean SERIOUSLY consider, it means “ASSESS/EVALUATE/TEST”. Employees who are not recognized as “high potential” were – in some fashion – NOT selected (i.e., “rejected”) for that recognition. In my experience that assessment often happens so quickly and so unconsciously that the assessors really must be reminded that they did it. If one were to ask, “why Sam and not Joe?”, I promise you, there is an answer. THAT’s the answer that must be job related and documented.
You can use this OFCCP audit checklist to ensure you're doing what is required to maintain OFCCP's regulations including VEVRAA, Section 503, and EO 11246. Or request a demo to streamline your compliance and recruiting efforts.