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Affirmative Action Compliance for
RecruitersSherry Rest SHRM-CP, PHRAllen Hudson SHRM-CP, PHR
Webinar Agenda
BackgroundWho is OFCCP?
Areas of LiabilityFour common pitfalls
Best PracticesFor minimizing liability
QuestionsWhat’s keeping you up
at night?
www.hudsonmann.com 843.884.5557
EQUAL PAY ACT
CIVIL RIGHTS ACT
TITLE VII
EXECUTIVE ORDER 11246
REHABILITATION ACT
VIETNAM VETERANS ACT
IMMIGRATION REFORM & CONTROL
ACT
AMERICANS WITH DISABILITIES ACT
JOBS FOR VETERANS ACT
ADA AMENDMENTS ACT
GENETIC INFORMATION
NONDISCRIMINATION ACT
LILLY LEDBETTER FAIR PAY ACT
EXECUTIVE ORDER 13496
1963 1964 1965 1973 1974 1986 1990 2002 2008 2008 2009 2009
Landmark Laws
Affirmative Action Is…
A commitment to make good faith efforts and take positive, results-oriented action to eliminate employment barriers affecting women and minorities.
Affirmative Action Is Not…• A quota system
• A requirement to:
1. Hire
2.Promote
3.Transfer
4.Mentor
Unqualified candidates regardless of race or sex
QUOTASYSTEM
Executive Order 11246
Prohibits Federal contractors and subcontractors from discriminating in employment practices for reasons of:
Race, Color, Religion, Sex, Sexual Orientation, Gender Identity, National Origin
Requires that all Federal contractors and subcontractors with 50 or more employees and contracts of $50,000 or greater
Develop and implement written Affirmative Action Plans
Why Be An Affirmative Action Employer?
It’s the Law (Business With Federal government)
Effective Management Tool
Allows strategic oversight and analysis of diversity efforts
Analyze recruiting efforts, sources of applicants and recognize systemic barriers to employment
Provides methods to evaluate equity in hiring, termination, promotion, training and pay
?
Enforcement Agencies
Equal Employment Opportunity Commission (EEOC):
Investigates and enforces violations of employees’ rights in the workplace.
Office of Federal Contract Compliance Programs (OFCCP):
Enforces and monitors Affirmative Action Programs of Federal contractors.
OFCCP’s Enforcement JurisdictionExecutive Order 11246
Vietnam Era Veterans Readjustment Assistance Act
Section 503 of the Rehabilitation Act
FY 2017 monetary relief
Areas of Greatest LiabilityIn an OFCCP Audit
Especially in application and hiring processes
Adverse Impact
Required and voluntary outreach are both needed
Outreach
Compensation systems and fair pay are in the spotlight
Pay Equity
Record retention rules and supporting documentation
Recordkeeping
Adverse Impact in Hiring
of discrimination findings are from hiring discriminationFY 2017
Adverse Impact Example
100 White Applicants
50 White Hires
50% Hire Rate
50 Minority Applicants
10 Minority Hires
20% Hire Rate
20/50=40%
01 The individual submits an expression of interest in employment via the Internet or related technology.
02 The contractor considers the individual for employment in a particular position.
(2-year recordkeeping requirement begins at this stage)
Definition of Internet ApplicantFinal Rule by OFCCP
03 The submission indicates the individual possesses the basic qualifications for the position.
(established in advance; non-comparative, objective, relevant)
04 The job seeker did not later indicate a lack of interest in the job for which he
or she was considered.
Use accurate disposition codes!
Key Takeaway #1
Sample Disposition Codes
Compensation & Pay Equity
of discrimination findings are from compensation issuesFY 2017
Compensation & Pay EquityPay Equity Starts with Starting Pay
Avoid Job Steering
Coordinate with HR on starting pay
Key Takeaway #2
Compensation & Pay Equity
Pay Equity Starts with Starting Pay
Avoid Job Steering
Job Steering
The practice of steering employees who are members of a protected class toward lower paying jobs at hire
Can result from explicit or implicit bias
job steering settlement amountFY 2015
Job Steering Case Study444 women steered into “light-duty” jobs with lower wages
Adverse impact in hiring on males, African-Americans and Caucasians
Settlement from reviews at nine separate facilities
Require applications for specific positions
Key Takeaway #3
Outreach
AAP Goals & Hiring BenchmarksKnow where your AAP goals are
*Women & Minorities
*Individuals with Disabilities – 7% goal
*Veterans - 6.4% Hiring Benchmark
www.jobbankinfo.org
Good Faith Outreach Efforts
Educational institutions or other professional organizations to reach qualified women and minority candidates
Job advertisements targeting veterans & individuals with disabilities
Partnerships with local veterans' service organizations
Outreach Log
Know your AAP goals& document your outreach
Key Takeaway #4-5
https://ofccp.dol-esa.gov/errd/
OFCCP Employment Referral Resource Directory
Recordkeeping
Recordkeeping IssuesMaintain 3 years’ of employment and recruitment data
Including assessment documents
Must keep longer if in an audit
VEVRAA and
Section 503 Evaluations of
Outreach
Affirmative Action Program for Veterans
4212 Evaluation of Outreach and Other Required Reviews
Evaluation of Effectiveness of Outreach and Recruitment Efforts
Date of Evaluation
As part of our evaluation of our outreach and recruitment efforts towards veterans, we have reviewed progress towards the hiring benchmark, the number of job seekers that have self‐identified as protected veterans, and the quantity and quality of outreach sources.
Our veterans hiring rate for the preceding AAP year was ##%. The overall percentage of job seekers that self‐identified as veterans was ##%. A total of ## job seekers self‐identified as protected veterans.
Additionally we have identified a number of outreach sources that are targeted towards veterans. These include: [list of outreach sources]
Based on these factors, we determine that the totality of our outreach efforts towards veterans is/is not effective in identifying and recruiting qualified protected veterans.
[if totality of efforts is found to be not effective, include the following:] Since we have determined the totality of efforts to not be effective, we will implement the following alternative efforts: [include list]
Review of Personnel Processes
On <date of review> we reviewed our personnel processes to determine whether our programs provide careful, thorough and systematic consideration of protected veterans. Based upon this review, <company> will modify the personnel processes when necessary, and will include the development of new procedures in this affirmative action program to ensure equal employment opportunity. To date, no modifications have been necessary.
Review of Job Descriptions
Physical and mental job qualifications of all jobs were reviewed on <date of review> to ensure they do not tend to screen out qualified protected veterans. No qualification requirements were identified and all job qualification requirements were found to be job‐related and consistent with business necessity and safety.
DocumentationDocumentationDocumentation
Key Takeaway #6
How Do You Minimize Potential Liability?•Follow a formal application process
•Utilize disposition codes
•Avoid “informal” expressions of interest
•Set up an active consideration period
•Don’t accept applications for “any opening”
•Posting temp to hire opportunities
•Review employee referral selection process
•Set and utilize minimum qualifications – track outcomes
•Review testing validation
Questions?
Additional Training ResourcesOnline Courses:
- Affirmative Action Basics – FREE intro course
- Affirmative Action Essentials – 4+ hrs. of video learning
- EEO & AAP for Managers and Supervisors
In-person AAP Seminars (1.5 days):
- August 16-17 – Charleston, SC (SOLD OUT)
- November 1-2 – Indianapolis, IN
More information at HudsonMann.com/training
Good Faith Dashboard
Available on iPlans™
Questions?
Allen Hudson, SHRM- CP, PHR
Chief Operating Officer
Sherry Rest, SHRM- CP, PHR
Director, Client Services
HudsonMann.com – 843-884-5557
Thank you!
