EEO & Testing Quarterly Review - Biddle · about the EEO & Testing Quarterly Review, please e-mail us at [email protected] Revisiting page 6 On September 30th of each year,

Quarterly ReviewQuarterly ReviewEEO & Testing Published by Biddle Consulting Group, Inc. • HR News & Information • December 2009

Inside...Properly Disposition Overqualified Applicants ... 1 | EEO-1 and Vets-100 Filing Requirements ... 2 | NILG 2009 Recap ... 3Calculating Availability Data (Part III) ... 5 | NILG Plenary Session with OFCCP ... 8 | BCG Training/Event Calendar ... 12

Copyright © 2009 • Biddle Consulting Group, Inc.

How Do Employers [Properly] Disposition Overqualified Applicants?by Marife Ramos

Overqualified Applicants. The current economic downturn has given rise to the number of applicants

the question: Wouldn’t it be more prudent for recruiters and/or employers to disposition these applicants as ‘Did not meet the requirements of the job due to experience’ and therefore, weed these candidates out early in the process?

On the surface, this might seem a very practical avenue to take in order to save time and effort. Tempting, BUT…

What does “overqualified” really mean? A skeptic or an auditor could argue that this is just secret code for age discrimination. Maybe…, BUT not always. Take for example, in 1995 the Ninth Circuit Court of Appeals held that “overqualification” is not the same as age discrimination (EEOC v. Insurance Company of North America). In this case, the EEOC argued that the plaintiff was not hired due to his 30 years of experience and therefore, the employer committed age discrimination. However, the employer (i.e., defendant) counter-argued that because of the candidate’s extensive previous experience in the insurance field, the candidate can get too involved in the review of the accounts and subsequently, can take too much of the company’s and client’s time. The court eventually ruled in favor of the defendant and stated that “the employer acted for a legitimate business reason, and not because of the applicant’s age.” (NOTE: disparate impact burden on age is different and lower than it is for gender and/or race. The employer only needs to show an objective business justification that is job-related and has nothing to do with age).

Dispositioning These Applicants. Most federal contractors are already faced with the steep task of effectively managing an influx of applicants through various electronic means. Add to that problem…, an influx of overqualified candidates. Through the “Internet Applicant” regulations, contractors can easily exclude those who did not meet the minimum qualifications of

who are vying for jobs where they are being identified as “overqualified” to fill. Not only do these applicants claim to be willing to accept entry level jobs or drastically change career paths, but they also claim to be willing to take significant pay cuts. With an unemployment rate at 9.7% as of June 2009, this is the unfortunate reality for many job seekers.

Unfortunately (or fortunately according to some recruiters/hiring managers), overqualified applicants are often easy to pinpoint from a pile of other prospective employees. They are sometimes those who have an advanced education such as a Master’s or Ph.D. degree while applying for an entry level job. They are those who have many years of experience in a similar field that they applying for, but are willing to start from the bottom of the job ladder. They are those who have held intimidating job titles such as CEO, CFO, Asst. VP, etc. yet they are now applying to be department managers, etc. The obvious concern is that overqualified job seekers are typically seen as potential employees who would only use the job they are applying to as a temporary solution to their present employment problem. They are also (justly or unjustly) perceived as someone who would be an intimidating co-worker, non-team player, not interested in learning, unhappy employee, and someone who would be unlikely to stay on the job as they continue to seek to regain their former status. Simply put, from a recruitment perspective they do not appear to be a good “fit” for the job.

Consequently, employers and recruiters alike will ask: “Why bother spending precious time, effort and money in putting these overqualified applicants through the entire selection process?” Some recruiters also argue that even when they allow overqualified candidates to go through an entire selection process, they typically “self-select out,” or that hiring managers typically don’t choose them in the end for fear that they will not “stick” with the job. Hence, ...see Overqualified page 3

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Staff ContributionsManaging Editor ........................................................Shelli JohnsonContributors ..........................................................Dan Biddle, Ph.D................................................................................... Chris Lindholm................................................................................. Michael Bostick.......................................................................Desiree ThrockmortonProduction .......................................................................C. Lori LeeWebsite ................................................................... www.biddle.com

Biddle Consulting Group, Inc. is located at 193 Blue Ravine Road, Suite 270, Folsom, California 95630. For questions or comments about the EEO & Testing Quarterly Review, please e-mail us at [email protected].

...see Revisiting page 6

On September 30th of each year, certain employers are required to file the EEO-1 and VETS-100/100a reports. Let us revisit the requirements for filing these reports.

EEO-1 ReportsThe Equal Employment Opportunity Commission

(EEOC) is a government agency that enforces employment laws and regulations that prohibit discrimination based on gender, race, national origin, religion, and age. The EEOC uses the EEO-1 report as a tool to assess the level of diversity in the U.S. workforce. The EEO-1 report contains counts of employees by race and gender in each EEO category and is filed by certain employers to the EEOC on September 30th of each year.

Filing of the EEO-1 report is mandatory (not voluntary) as required by law. Federal contractors or subcontractors who fail to submit their EEO-1 reports can get their federal contracts terminated and be barred from entering any future federal contracts.

Below are the requirements for filing this report:1. WHO MUST FILE

a. All private employers: i. with 100 or more employees EXCLUDING

State and local governments, school systems, Indian tribes and tax-exempt private membership clubs; OR

ii. who have fewer than 100 employees if the company is owned or affiliated with another company and the entire enterprise employs a total of 100 or more employees.

b. All federal contractors with 50 or more employees2. HOW TO FILE - Each of the following type of

establishments must file the Standard 100 form (SF-100):

a. Single-establishment employers – employers with only one establishment in one location

b. Multi-establishment employers – employers with more than one establishment should file the following:i. Principal or headquarters office report;ii. Reports for each establishment with 50 or more

employees;iii. A consolidated report that should include ALL

employees iv. A list of establishments with less than 50

employees. The list should include the name of the establishment, the address, total employees for each establishment and major activity of the establsihment.

IMPORTANT NOTE: The combined number of employees from the headquarters, the establishments with 50 or more employees, and the less than 50 employees establishments report should equal the number of employees in the consolidated report.

Electronic filing is the preferred method for filing the EEO-1 reports (http://www.eeoc.gov/eeo1survey/). However, contractors need to have their log-in and password information in order to access their respective database. These information will be provided by the EEOC via mail no later than August 2009. If you have not received your information by then, contact the EEO-1 Joint Reporting Committee at [email protected].

Also, employers who elect to upload information as a data file will have to follow strict data specifications as outlined by the EEOC. Please visit http://www.eeoc.gov/eeo1survey/datafile.html for the data requirements.

3. WHEN TO FILE – reports must be filed no later than September 30. Employers may choose a snapshot of their workforce from any pay period in July through September.

4. WHERE TO FILE --- Reports should be sent in one package to the address indicated in the survey form.Electronic filing is the preferred method for filing the EEO-1 reports. Please see “Important Note” section, 2nd paragraph under item #2 above.

5. REQUESTS FOR INFORMATION AND SPECIAL PROCEDURES – Employers who claim that filing the Standard Form 100 will cause undue hardship can request (in writing) to be allowed to file the information in a different format. The proposed format will have to be included in the written request. When a proposed format is approved, the employer can use the alternative format until notification of cancellation is provided.

Revisiting EEO-1 & Vets-100 Filing Requirements

Quarterly Review • 3 • December 2009


the job and therefore, not consider them as applicants. Unfortunately, the same “internet applicant” definition cannot work in reverse and be applied to those who are overqualified.

Can employers/recruiters then set-up a process to try and weed out undesirable job seekers and therefore, avoid wasting time, effort, and money in the selection and training of these individuals? Yes they can, using appropriate methods. Following are some nuggets of advice from the EEO/AA experts.

Let the job seeker self select him/herself out of the • process by providing clear information with regards to the job. For example:

Let the job seeker know early in the process • the salary requirements --- be firm and upfront with how much the company would be willing to pay for the position. If the starting salary is non-negotiable, then state it and don’t waver. Let the job seeker know about the duties, • responsibilities and expectations of the job --- be clear and don’t leave any room for misinterpretation (e.g., “You will be working with a team composed of 5 employees.” Explain that this means working as a “team member” and not “managing” the team). Provide a clear picture of the expected daily activities and responsibilities that go with the job.Clearly explain possible growth opportunities • -- Don’t leave any room for misinterpretation with regards to upward career movements. Provide a good picture of the policies on promotions and/or salary increases.

Develop “fit” profiles. Properly developed fit • profiles are used regularly in hiring. Do not

simply include questions, at the recruiter’s or hiring manager’s discretion, in a non-validated manner with a non-validated interpretation of the applicant’s responses.

For example, recruiters or hiring managers can • craft questions such as: “Knowing that the job pays so little as compared to your previous job, how can I be convinced that you will remain in this job for a reasonable amount of time?” “Give reasons why you think that this job will not bore you?” “Why should we select you for this job when others with less education and experience can do the job as well or maybe even better?” “Where do you see yourself in two to three years?” These questions, when properly validated, can help the recruiter assess the extent to which the candidate will match with the job requirements.

Reframe questions (and related disposition codes) • away from the “overqualified” language to “fit” evaluation/profile questions.

Keep in mind that unless the overqualified job seekers “self select themselves out” of the selection process, they are considered as “applicants.” If they met the four (4) prongs of the OFCCP’s “Definition of an Internet Applicant”, they need to move through the selection process just like anybody else. Their records need to be kept for recordkeeping and adverse impact analysis purposes. Selection decisions for and/or against them have to be documented and kept. Excluding these applicants simply because they are “overqualified” can open an employer up to possible discrimination charges. Besides, not all overqualified applicants will turn out to be unhappy and short-term employees. You might actually find a diamond in a rough, you never know.

Overqualifiedcontinued from page 1

2009 NILG Conference Recap - Recordkeeping, Analyses, Veterans

by Christine Anthony

The 2009 Industry Liaison Group National Conference (NILG) took place this year on July 28 through July 30, 2009 in Atlanta, Georgia. As promised, the conference provided many exciting sessions and attendees left with new ideas and action plans that relate to their everyday work. Three main themes emerged from the conference material: recordkeeping, outside-the-box analyses, and veteran recruitment. There were specific sessions dedicated to each of these themes; however, it is difficult to take messages from one topic without applying them to the others. This article will discuss each theme, the messages

from the presenters on these topics, and how contractors cannot focus on one topic without considering how it affects others.

RECORDKEEPINGThe most prominent issue spoken about during the

conference was recordkeeping and, more specifically, recordkeeping within applicant pools and assigning disposition codes. The Department of Labor (DOL) mentioned several times throughout the conference that recordkeeping Notice of Violations (NOVs) continue to be

...see NILG Recap page 7

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by Mike Bostick

The National Employment Law Institute (NELI) held a conference on October 8th & 9th in San Francisco, CA to discuss current topics associated with affirmative action as well as basic review of Affirmative Action Plans. The content of the conference was very informative and offered great insight on what to expect from the new administration as well as a review of current procedures already in place. They also covered several different techniques in dealing with the Office of Federal Contract Compliance Programs (OFCCP) and their thoughts on those as well. Jon Fox, Leonard Biermann, and Brian Bulger were the presenters.

The OFCCP has introduced several new appointed employees, one of which is Patricia Shiu, whom has been elected as the new Director of the OFCCP. She is a former trial lawyer from San Francisco with a focus in Employment and Family case law and not in discrimination law. She is expected to be very hands on but it will be a couple months until she settles in. Her first day in office was September 29th due to her pending cases that needed to be completed. The hope of Leonard Bierman was that she leaves behind the class action lawyer mentality and limits the unnecessary law suits. He hopes that she is more consistent and acts with reasonability when making decisions.

The next few topics are areas covered during the presentation. American Recovery and Reinvestment Act (ARRA) is a new program implemented by the government that is drawing a lot of concerns and questions. The government has approved the continuation of ARRA money to contractors in desperate need of salvaging their companies. It is estimated that 787 billion will continue to be given out for the next 1 ½ years. The guidelines for obtaining money have become stricter. Each company that receives ARRA money is eligible for OFCCP to conduct an ARRA audit. These audits review the same material as standard audits, but can be more intense and have fewer limitations. Companies that receive 10 million dollars or more are guaranteed to have an on-site audit. As well as the standard audit, compliance officers are now verifying that old regulations are being followed. For instance, the regulation that seems to come up most is the requirement of companies to advise the OFCCP of contracts they hold with other suppliers.

Bonuses for employees are set to go out in January of 2010 and they will be high again. Companies are now hitting goals thanks to the bailout money. More public

opinions are surfacing regarding the bailout money and what the public refers to as “wasted money.” This will lead to further reviews and audits that will hopefully answer these public concerns. Grants are not held to the same scrutiny as Federal Contractors although grants and contracts are starting to look similar. Contractors are supposed to review their files to make sure they know which area they fall under. Grants typically are a couple pages whereas the contracts are several pages and deal with city or state needs. Grants deal more with government projects and are offered as a “take it or leave it” proposal, so there is not a negotiation process.

Audits are a phase of the OFCCP experience that brings up a lot of questions and concerns. The audit procedure can differ depending on which region you fall under. Each region is acting differently since they have been without direct leadership for the past couple of months. The OFCCP is planning on increasing their workforce so they can perform more audits and spend more time on companies with severe problem areas. An increase in workforce means more new compliance officers. And for contractors, that means they will need to help in training these new compliance officers.

Questions about compensation came up a lot with a couple questions directed towards the Lilly Ledbetter fair pay act. The OFCCP does not give a clear answer as to what their goals are in regards to compensation. Your compensation systems need to be accurate and current. Starting salaries are a topic that gathered a lot of interest. Brian Bulger’s opinion was that it is ok to have employees starting out at different salaries but once those employees show they are worth the pay, then it is important to bring the employees to a similar pay range. Once you bring the employee up to a similar pay scale, they have 180-300 days to contest the pay disparity although most do not. It is important to make sure that the decision was made to fix past problems and not to avoid litigation. It was suggested that companies review their pay structure yearly, hold meetings among human resource heads to figure out what job groups may have different ranges and need to be addressed. The topic of compensation came with a warning, “Do not do it alone. Hire an attorney or statistician to help you review and do not circulate the results to very many people.” It was suggested that you put “do not forward” on your emails so emails are not passed along. The OFCCP looks at compensation changes as something that is done “to avoid litigation” and not as something that is done “to

San Francisco NELI Conference Offers Introspective on the New Administration and Current Procedures

...see NELI page 9


Copyright © 2009 • Biddle Consulting Group, Inc....see Availability page 10

By Chris Lindholm

Part III of III in a series. Part I and II of this series can be found in the June 2009 issue of Biddle’s EEO & Testing Quarterly Review (www.biddle.com/newsletters.stm)

Part III: Reviewing flawed methods for calculating availability

While it may seem obvious that creating availability comparison pools that do not resemble the actual representation of people available to a contractor is foolish, it also appears to be common practice. BCG has reviewed many AAPs, created by other sources, over the years and we are often tasked with making significant revisions which take the contractor down a different path for their own benefit. To be specific, availability figures should be based on where and how a company recruits both internally and externally, while comparing each job to the most similar job in the 2000 census file. When a plan developer takes shortcuts or does not understand the difference between the various methodologies. then it is easy to create availabilities that do not reflect the appropriate comparison pool. There are several methods that are being used in today’s EEO industry that may fail scrutiny if analyzed closely.

Some of the methods that will be discussed here may be technically compliant with the regulations, but are not necessarily best practices when seeking to accurately represent the availability of women and minorities as candidates for employment, promotion or transfer into or within an organization.

Part III: Subtopic 1 – External Labor PoolsThe first questionable method for creating a comparison

pool would be the use of an entire EEO category as the comparison group. When organizations select an entire EEO category as a comparison group, they are making the decision to compare their job group to a similar group of jobs in addition to a whole series of jobs that they do not recruit for. A simple example would be if I have a manager category containing jobs such as finance manager, managing counsel and manager of purchasing and I compare this internal group to an external group that had those same jobs in addition to sports agents, funeral directors, postmasters and a whole series of other jobs that are not relevant to the private contractor. The point is that the group that is selected for comparison should reflect the jobs that the company recruits.

An issue similar to the use of generic census comparison pools would be the use of pre-defined census areas without examining their relevance to the contractor’s recruiting patterns. Stated simply, “Just because you are

physically located in a Metropolitan Statistical Area or MSA, that does not mean your recruitment takes place solely within that MSA”. A perfect example took place several years ago when an organization that BCG was working with had been using the San Francisco MSA as their local recruiting area because they were situated in the heart of city. The client assumed that the external recruiting area should be their immediate surroundings. However, when the Human Resource team reviewed the availabilities that showed up in their reports they were stunned to see how different the representation was compared to their existing workforce. Once the company reviewed their applicant data and existing employee commuting patterns it was clear that many people applied or commuted to the company through public transportation or by car from the surrounding region that existed outside of the city and that the demographics of their actual recruiting pool was very different from the area that encircled the company office. This is absolutely not to suggest that companies should adjust their census area until it makes underutilization go away. The purpose of creating availabilities is to find the pool of qualified candidates that are available to the contractor, not the pool of candidates that mirror your existing incumbency. It is helpful to research the commuting patterns of your employees to identify how far people are willing to travel to work to best identify the appropriate recruitment area.

Part III: Subtopic 2 – Occupational census codesAnother area of weakness in plan development is the

linking of jobs to detailed occupational codes. While it takes effort to match each internal job to a detailed occupational census code, it is the right thing to do. The use of a broad category as a comparison group is highly questionable when defining Placement Goals. For example, when assigning a detailed occupational code to a job, a contractor has the ability to take a job such as Nuclear Engineer and link that job to census code 151 (Nuclear Engineer) for an accurate match. However, there are certain census codes available to contractors that could be considered shortcuts and are therefore “easier” to assign because the person making the link can default to these more generic codes for various jobs. In relation to the previous example, a contractor may have a series of engineering positions such as Mechanical Engineer, Nuclear Engineer and Environmental Engineer and if the contractor were cutting corners they may assign all three jobs to census code 153 (All Other Engineers) when

Why Federal Contractors Should Pay Attention toHow Availability Data is Calculated (Part III of III)

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Revisitingcontinued from page 2

...see Revisiting page 11

6. CONFIDENTIALITY – As required by Section 709(e) of Title VII, all information from the reports will be kept confidential. This prohibition does not apply to the Office of the Federal Contracts. The OFCCP may ask for these reports from federal contractors under EO 11246.

VETS-100/100A ReportsThe Veterans’ Employment and Training Service

(VETS), under the Department of Labor, is responsible for collecting employment data on veterans from federal contractors and sub-contractors.

This year is the first time that some contractors will have to file either a VETS-100 or a VETS100A form or both.

• Contractors with federal contracts of $25,000 or more and were entered before December 1, 2003 will have to file a VETS-100 form (Vietnam Era Veterans' Readjustment Assistance Act of 1974, [VEVRAA] and 41 CFR part 61.250).

• As per the amended VEVRAA reporting requirements (41 CFR part 61.300), contractors with contracts of $100,000 or more and entered (or revised) on or after December 1, 2003 will have to file VETS-100A form.

Federal contractors or subcontractors who fail to submit their VETS-100/100A reports can get an OFCCP notice of non-compliance. Unless current VETS-100/100A reports are submitted, federal contracting officers will not award or renew contracts to contractors or subcontractors.

Like the EEO-1 reports, the VETS-100/100A reports are due to the DOL-VETS office by September 30th of each year. Below are the requirements for filing the reports:

1. WHO MUST FILEa. VETS-100 Form

i. All federal contractors and subcontractors with contracts of $25,000 or more and entered before December 1, 2003

b. VETS-100A Formi. All federal contractors and subcontractors with contracts of $100,000 or more and entered or revised on or after December 1, 2003

2. HOW TO FILE - Each of the following type of establishments must file the appropriate form:a. Single-establishment employers – employers

with only one hiring locationb. Multi-establishment employers – employers

doing business at more than one hiring location should file the following:i. Report covering the principal or headquarters

location;ii. Reports for each hiring with 50 or more

employees;iii. Reports for hiring locations with less than 50

employees can be submitted in either one of the following forms:1) One report for each hiring location 2) One consolidated report for all locations

within the same State3. WHEN TO FILE – reports must be filed no later

than September 30. a. Number of Employees -- Contractors and

subcontractors may choose a snapshot of their workforce from any pay period in July 1 through August 31.

b. Number of Hires -- Depending on the employee snapshot date chosen as indicated above, the number of hires should include all the hires that occurred exactly one year prior to the employee snapshot date through the snapshot date (for example: the employee snapshot date chosen is July 10, 2009, the reporting period will be July 11, 2008 thru July 10, 2009).

4. WHERE TO FILE – Pre-printed VETS-100/100A forms will no longer be mailed to contractors. Instead, contractors are encouraged to file their reports through the VETS website (http://www.dol.gov/vets/programs/fcp/main.htm) . The link for the new VETS-100/100A Reporting System will be added to the VETS’ website on August 1, 2009. In order to access your respective database, you will need a company number. First time filers can obtain their company number by following a step-by-step registration procedure available in the VETS web page. Contractors can also file their VETS-100/100A reports by submitting information in a disc file. Strict data specifications should be followed in putting together the data files. Please visit https://vets100.vets.dol.gov/ (Filing via Disk) in order to obtain the data requirements.

5. OTHER NECESSARY INFORMATIONa. Company Number -- First time filers can obtain

their company number through the VETS web page. If you are not sure about your company number, please contact the VETS office to obtain your company number at [email protected] or (301) 306—6752

b. Name and addresses for Multi-Establishment employers --i. Principal or Headquarters – provide name

and address of the principal location.



reviews. Every audit will now have a story behind it. If a contractor has a specific problem in their Florida location, the Compliance Officer in California will have knowledge of that during their review. This emphasizes the need for communication across the company to ensure that enhancements made in one location are made throughout the organization.

OUTSIDE-THE-BOX ANALYSESAs previously mentioned, OFCCP has received a large

increase in budget for their next fiscal year and they plan to use much of that budget to significantly increase their employee base. Local offices of OFCCP will have more Compliance Officers conducting more audits looking at more variations of analyses. Simply conducting routine adverse impact analyses (i.e., overall job group analyses) will not adequately prepare contractors for an OFCCP review. Attendees were clearly made aware that OFCCP will be increasing their efforts in analyzing the steps of decision making processes making step analyses the first outside-the-box approach discussed at the conference. Contractors finding overall adverse impact at the job group level should investigate further by trying to define at what point in the decision making process the adverse impact occurred before trying to explain the findings at the higher level. In fact, a NOV can be issued if overall impact is found and there is no evidence of a steps analyses being performed.

A second outside-the-box approach to conventional analyses was mentioned during the conference by Mickey Silberman from Jackson Lewis. OFCCP is heightening their awareness of sub-category and “reverse” adverse impact findings. Sub-category findings would include analyses at the individual race level, a step further than a general analysis of a minority vs. non-minority comparison. A “reverse” finding is one that impacts either males or Whites negatively. The presenter pointed out that there are 20 sub-minority comparisons to make (e.g., Black vs. White, Asian vs. Native American, etc.). Additionally, there are eight analyses that compare one group to all other groups combined (e.g., Hispanic vs. All Others, Asian vs. All Others, etc.). Analyzing adverse impact at all possible category levels would result in 32 potential ways that the OFCCP could run the data during a compliance evaluation. Time will tell if OFCCP will do such an exhaustive review or focus on comparing selection decisions of groups to the one group that has the highest overall selection rate. The moral of this session, however, is that OFCCP is well equipped to evaluate adverse impact past the stages of female vs. male and minority vs. non-minority. Contractors

the most issued NOV as a result of compliance evaluations. The DOL warned that they are performing step analyses with applicant data submitted during reviews, and so should the contractors. A step analysis is not possible unless contractors are consistently and accurately dispositioning their candidates. Furthermore, a contractor cannot defend their disposition assignments unless they have the records behind the assignments. The DOL also reviewed the topic of electronic database searches. Many organizations use such a technique to network or gather interested job seekers. Contractors who do so must keep record of the searches made and those records must include the position that was searched for, the criteria used for the search, the date of the search, and the resumes of all who met the basic qualifications. During a compliance review, the DOL may ask the contractor for this information and be able to replicate your search if desired. The consequences of recordkeeping NOVs are often severe. The first offense typically results in a 24 month conciliation agreement. The second offense typically extends the conciliation agreement to 48 months while the third offence would likely result in a consent decree. Attendees that desired to learn more about step analyses had the opportunity to attend a session by Dr. Lisa Harpe of PeopleClick where she demonstrated a step analysis using Microsoft Excel.

Kurt Ronn and David Scheffler of HRworks furthered the message regarding the value of dispositioning applicants when they spoke about social networking sites such as LinkedIn or Facebook. LinkedIn was noted as the top recruiting site that contractors are accessing. The presenters stressed that if an organization uses these sites to review and evaluate potential applicants, then they need to keep record of the search and results as noted above. However, if organizations are using these sites to network, and not review or evaluate, then the recordkeeping responsibilities do not apply. Contractors need to be careful once networking turns into job-seeking. The result of good networking should be a strong applicant pool; contractors should always guide their recruits to apply via standard application methods before an evaluation of that individual occurs.

The presenters also mentioned how the DOL is enhancing their audit methodologies. They noted that the Office of Federal Contract Compliance Program (OFCCP) has been practicing Active Case Management (ACM) to help guide their efforts to find the most serious offenders and to help close the audits where no preliminary indicators exist. Additionally, OFCCP has seen a large increase in their budget for the 2010 fiscal year and they will be making better use of ACM with that funding. The presenters note that with the new budget, OFCCP will start to build a database to hold the past records of compliance

NILG Recapcontinued from page 3

...see NILG Recap page 9

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2009 NILG Plenary Session with OFCCP

by Desiree Throckmorton

During the Plenary Session on Thursday, July 30, 2009 at the National Industry Liaison Group (NILG) Conference in Atlanta, Georgia, the Regional Directors (RD) of the Office of Federal Contract Compliance Programs (OFCCP)assembled to discuss current topics within the agency and provide answers to the questions raised by the community. At this meeting, Joan Ford, the Director of the Southwest and Rocky Mountain regions, announced her retirement. A theme among the other announcements from the Regional Directors is that the agency plans to make significant outreach efforts in order to assist the federal contractor community with compliance.

Since the NILG meeting there have been several webinars and seminars hosted by the OFCCP. Michele Hodge (Northeast and Mid Atlantic regions) and Sandra Ziegler (Midwest region) mentioned that they planned to offer technical assistance and training for ARRA fund recipients.

The community raised some questions and the OFCCP responded. Below summarized highlights of the question-and-answer session.

Q: What trends occurred during 2008?A: The RD’s expressed frustration that during audits

they are receiving a lot of push back and denial of access to documents they have jurisdiction to review. In response, OFCCP has created an expedited denial of access procedure that involves the Solicitor of Labor’s Office. In addition there were more multi-establishment investigations, which is likely to continue to increase with the OFCCP’s amplified budget. More violations were also found for contractors failing to property list their job openings. [After the closure of the America’s Job Bank, which was a free service, employers are left to manually list their jobs or pay for such a service. ]

Q: How does OFCCP determine whether a contractor’s online applicant process is accessible?

A: The compliance officers visit the websites and kiosks to test them to determine if there are barriers to accessibility for applicants. [BCG encourages contractors to do a self-audit of your application process. Consider the application process of your competitors. Determine whether it’s easier/faster to apply on their site.]

Q: Is the OFCCP still conducting full desk audits during every 25th evaluation and onsite reviews during every 50th evaluation, even when there are no initial indicators of system discrimination problems?

A: Yes.

Q: Is the tipping point still being used to trigger a more in-depth analysis?

A: The RD’s indicated that a tipping point is not being used, but they encouraged the audience to ask Dr. Kaiser. Dr. Kaiser’s response was that a tipping point test is not being used and that their focus is on Multiple Regression and Cohort analyses.

Q: What should a contractor do if it has fewer than 50 employees at a location?

A: Roll up those employees with the locations that share the same HR function.

Q: Are women and minorities no longer the OFCCP’s focus?

A: Thanks to Title VII everyone is protected against discrimination, therefore men and non-minorities are also protected. There have not been many cases against men and non-minorities, but there are cases where a minority group or females are the favored group. The OFCCP is investigating adverse impact against all genders and races/ethnicities. [Some industries, like healthcare, have a higher likelihood of cases where females are the more favored group, so be aware that it’s prudent to determine whether there is Adverse Impact against males.]

Q: What should a contractor do if a Compliance Officer requests proof it is a federal contractor?

A: The OFCCP carries the burden to prove that the employer has federal contracts.

There was a variety of questions asked at the Q&A session with an anticipated emphasis on compliance reviews. Contractors should be aware that, based on this Q&A session and the increase in compliance officers (due to the increased budget), the OFCCP’s efforts will be increasing. This means the OFCCP will be able to conduct more compliance evaluations that can touch on issues such as, disparities against males/non-minorities, multiple regression, online applications systems, etc. This will also be an opportunity for OFCCP to spend more of its resources helping/assisting/teaching the contractor community.



should have the recordkeeping ability and the functionality to run analyses with non-traditional comparisons.

VETERAN RECRUITMENTThe DOL was once again on-hand at the conference

to discuss the issue of veteran recruitment. The 2009 conference was the first large gathering of industry professionals at which the DOL could highlight the Good-Faith Initiative for Veteran Employment (G-FIVE) award recipients. By doing so, the DOL could show contractors the positive implications of effective veteran recruiting, and it also set the stage for their session focusing on the Uniformed Services Employment and Reemployment Rights Act (USERAA), the Jobs for Veterans Act (JVA), and the G-FIVE initiative. The DOL noted that they will aggressively review the efforts of all contractors in a compliance review setting to ensure that they are taking appropriate and positive outreach and recruitment activities that are designed to effectively attract qualified veterans to the applicant pool. This statement has been upheld during current compliance evaluations. Evaluations are not closing

NILG Recapcontinued from page 7

without contractors showing their records of veteran recruitment and, in some cases, without providing contact information of a resource at the organization’s local veteran office. For tips on how organizations can increase their recruitment of veterans please see Issue 3 of EEO Insight available online at www.eeoinsight.com.

SUMMARYThe three underlying themes of the NILG were

recordkeeping, outside-the-box analyses, and veteran recruitment. It would be difficult for a contractor to focus on enhancing their compliance in one area without impacting the others. Contractors cannot run a steps analysis without accurately recording the step at which candidates fall out of a selection process. Organizations cannot be accurately represented if they do not record the steps they are taking to increase their veteran outreach. It is important for all organizations to evaluate their own recordkeeping processes to ensure that they would support the organizations good-faith efforts and withstand scrutiny of OFCCP audits.

fix problem areas.” Be careful with this step. Be sure to review both compensation regarding gender and race to see if there are any disparities.

When reviewing compensation, the regulations do not require the use of job groups. The compliance officers ask for this but you do not need to comply. The compliance officer may ask for an electronic copy but you also do not have to provide this. Once there are indicators then the auditor can ask for all things associated with compensation. John Fox suggests complying with their requests if it can be easily completed and to only push back if it is an unrealistic request. If discrepancies exist in your compensation, research how everyone is paid. Some compensation is based on continuing education units or certifications and it may be easily explained away from the beginning of collecting data.

Auditors do not conduct an onsite unless there are indicators that warrant it. Contractors may also qualify for an onsite if they are selected through their selection process. The chance of being selected is 1 in 50 for an onsite audit. Onsite visits can vary. The purpose of onsite audits is so the auditor can access sensitive data and for

NELIcontinued from page 4

the convenience of it. Once the government gains access to your data, they keep it in their system forever. The Chicago office is starting a new approach. They are sending multiple compliance officers to perform audits. There have been up to seven auditors on past onsite audits. John Fox suggests working with the auditors to make the experience a good one for the contractor and the compliance officer. Help train them and stay interactive so they remember they are dealing with real people.

The purpose of the I9 was to prevent employers from exploiting employees to save the company money. The “ten foot rule” is drawing a lot of attention. This rule was created by employers and means; if the ID looks good from ten feet away then that employee is good to hire. Temporary employees must E-verify but Commercially Off the Shelf contractors are exempt. They do this so companies that that distribute will work with the government.

The conference was very helpful and informative. It was a great educational experience and should be considered for contractors that want to gain additional knowledge about Affirmative Action. Here is a link to the site: http://www.neli.org/publications2.asp?PubID=39.

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they could have assigned each individual job to a specific code such as 151 (Nuclear Engineer), 146 (Mechanical Engineer) and 142 (Environmental Engineer) resulting in a very different set of availability figures. Other examples where the discrepancy in availability could become an issue would be the use of code 043 (Manager, All Other) rather than selecting specific codes for managers such as Engineering, Construction or Financial Manager. The use of these broad categories is common, especially in high-volume AAPs and the impact on the final availabilities used to compare to the contractors incumbent workforce can be significant.

In addition to issues related to assigning jobs to census codes, there is concern about applying a plan structure across other AAPs. Often, companies will maintain multiple facilities that house employees performing the same job and when this occurs it is reasonable that a plan developer would use the same job to census code link across AAPs. What does not make sense is when a plan developer might determine a series of job to census code relationships as part of a job group and apply the entire group across multiple plans when certain jobs may not exist in other plans or if jobs exist in other plans that are not in the original AAP. Having a census code for a finance manager in a job group that does not have a finance manager simply does not make sense and would certainly distort the resulting availabilities. While this might seem obvious, it is once again one of the concerns that plan automation creates and that BCG has seen in contractor’s AAPs.

Part III: Subtopic 3 - Assigning feeders (internal movement)

The assignment of feeder jobs (promotions) is a significant part of the calculation for availabilities. While labor areas and census codes are associated with the selection of external labor pools, creating feeders is the selection of internal pools that are eligible to be promoted and therefore represent a critical element of Affirmative Action Plan development. As much as feeders are critical to AAPs, they also represent an area of tremendous opportunity for the creation of misleading numbers. Once again the regulations do not clearly define how a contractor must define its recruitment pool other than to say that it must not exclude females and minorities (60-2.14 (2)(f)). The contractor may define their internal pools in such a way that is technically compliant but also provide a false sense of security because an analysis of the data provided could easily be questionable and difficult to defend. The most common area of concern is the use of historical promotion data to define a feeder pool. While I want to make it clear that the use of historical data can be a great

resource and completely appropriate for the creation of feeder pools so long as the data can be defended and makes sense. The problem is that there are times when it is not appropriate, and simply defaulting to a promotions history file without closely examining its impact on the overall availability can cause havoc in the results. An example of the impact of using history data that stands out is when a lack of sample size or unexpected data in the file results in dramatic fluctuations in the availabilities. We have seen examples of small sample sizes in annual promotions resulting in internal availabilities changing from very low percentages of availability for women and minorities one year only to have a dramatic upswing the following year because the small sample of promotions excluded women and minorities in one year and included them the following year. The last point regarding feeders is, if data drives the decisions, is the contractor only using those transactions formally identified as transfers as promotions? If a contractor has internal movement into the job group, such as transfers, which are not reflected in a promotions file, then the frequency of transfers could be left out of the availability calculation further impacting the analysis. It would seem illogical for a company to attempt to pursue a Placement Goal for any job group where the internal availabilities change dramatically every year and they are weighted heavily as part of the overall recruitment pool. Fluctuations in availability make it difficult to evaluate progress made toward goals and those fluctuations may get the OFCCP’s attention in an audit.

Part III: Subtopic 4 - Assigning factor weightsIt may compound the issue of invalid availabilities

when contractors rely on a data driven strategy to determine the weighting between internal and external factors. It would seem an impossible task to validate a pool of eligible hires based strictly on historical data when sample size or company restructuring does not provide a reasonable pool to draw upon. A typical response to the lack of sample size in any given year is to use additional years of data instead of just the previous 12 months to generate enough data to generate feeders. Once again, there are issues to consider here. First, going back to the sample size issue, if there are a limited number of hires or promotions into certain job groups, then the use of additional years of historical data may continue to show an erratic pattern that does not reflect an accurate pool of candidates and identify the true recruitment patterns. Second, it is our experience that job structures and hiring patterns change every few years, especially in larger organizations. If a contractor adds, collapses or removes jobs or otherwise significantly

Availabilitycontinued from page 5

...see Availability page 11



changes their internal job structure, then historical data can quickly become obsolete. If contractors are wondering what they should do to generate reasonable factor weights then they should evaluate the legitimacy of historical data in conjunction with a review of current promotion and hiring practices to come to an informed decision as to how the external and internal factors should be weighted. As mentioned earlier, AAP development can be as much of an art as it is a science.

Part III: Subtopic 5 - Using industry specific dataIndustry specific data is a tricky area that is not

commonly used in AAPs. It would seem ideal to compare industry specific data to a contractors’ workforce, rather than comparing to census data that is a rollup of all industries that share the same occupational code. Once again, there are pitfalls to using this information as the external labor pool. While identifying jobs that are specific to a certain industry for recruitment and comparing the contractors workforce to that data is a valuable tool for comparison, it can also be used in a manner that would not be defensible. For example, many years ago we were working with a contractor that was using industry data for mining and they wanted to use industry specific availability data in their AAP. However, after further discussion we realized that using the industry specific data for miners as a local recruitment area, only reflected their own workforce as they were the predominant mining employer in a multiple county region. If the contractor listed their recruitment efforts as primarily local for certain jobs then they were in effect, comparing their workforce to themselves, which again, would not be defensible. Another weakness that has been discussed is the use of industry specific data for jobs that do not require an industry specific background. For example, if the contractor wishes

to use the medical industry for their availabilities then industry data for the medical industry may be valuable. However, if the contractor is using medical industry data to compare to jobs that do not require a medical background (i.e. receptionists, maintenance, cafeteria staff) then the availability data would be distorted as a large number of jobs in hospitals do not require a background in the medical industry. Again, industry specific data can be valuable but users must be sure to apply it correctly.

ConclusionIt can be very distressing for an HR/EEO staff member

to present potential problem areas based on AAP results to their respective hiring managers and executives. Executives will often question how goals can be valid as they are not often aligned under a hiring manager or a business function so much as an establishment or group of establishments. Time and time again we have seen contractors get into heated battles trying to defend their AAP goals and how they were created. A plan developer’s ability to provide a realistic picture of the pools for selection are critical not only to government compliance but to the organizations efforts to attain and retain quality employees. Contractors savvy enough to realize that affirmative action plans can provide a return on investment are likely the same companies that stand out for other reasons as well. Using the AAP as a diagnostic tool to identify potential problem areas and to generate more diverse selection pools, (instead of being used as a doorstop) does not have to be about using expensive resources. The plan is about making an effort to create availability pools that accurately reflect the market around them and then working toward the goals that the plan identifies. When the availability pools are meaningful, and companies strive to give all qualified candidates opportunities, then the AAP has value.

Availabilitycontinued from page 10

There is no need to fill the hiring location information.

ii. Hiring Locations (50 or more employees) – provide name and address of the principal location PLUS the name and address of the hiring location.

iii. Consolidated Hiring Locations (less than 50 employees) - provide name and address of the principal location and fill only the state information in the hiring location section. Be sure to indicate the number of locations included in the consolidated

Revisitingcontinued from page 6

report.c. Counting Veterans – veterans who fall under

one or more of the veteran categories should be counted in each category. Newly separated veterans will only be counted in the New Hires section of the form. They are no longer considered newly separated veterans in the succeeding reporting years.

NOTE: Veteran categories have changed. Please refer to the Definitions of Veteran Categories (41 CFR Part 61-300.2 [4] thru [7]). It is possible that a previously covered veteran category does not apply any longer.

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For more information on any of the events listed, please callBiddle Consulting Group, Inc. toll-free at (800) 999-0438 or e-mail [email protected]

2010 Biddle Training & Events CalendarWebinars [Register at www.bcginstitute.org; cost of attending is free, unless otherwise noted]

: January 5 : Advanced Compensation Analysis: Calculating Back Pay To Eliminate Statistically Significant Pay Disparities

Presentations [BCG will be speaking at the following meetings and conferences]

: January 20-21 : New Orleans, LA American Nurses Association NDNQI ConferenceSpeaker: Dan A. Biddle, Ph.D.

: April 10-11 : Indianapolis, IN American Organization of Nurse Executives (AONE) ConferenceSpeaker: Heather J. PatchellTopic: Using Video-Based Situational Assessments for Pre-Employment Nurse Screening

Conferences [Biddle will have a booth and staff available at the following conferences]

Western Region APCO Conference: January : Denver, CO

CSPCA Conference: February : Irvine, CA

Southwest & Rocky Mountain ILG (SWARM) Conference: April : Houston, TX

Association of Legal Administrators (ALA) Conference: May : Boston, MA

Society for Human Resource Management (SHRM) Annual Conference: June : San Diego, CA

National Emergency Number Association (NENA) Conference: June : Indianapolis, IN

National Industry Liaison Group (NILG) Annual Conference: August : Las Vegas, NV

Association of Public-Safety Communications Officials (APCO) International Conference: August : Houston, TX

American Society for Healthcare Human Resources Association (ASHHRA) Conference: September : Tampa, FL

See our current list of webinars:www.BCGInstitute.org

Documents

EEO & Testing Quarterly Review - Biddle · about the EEO & Testing Quarterly Review, please e-mail us at [email protected] Revisiting page 6 On September 30th of each year,