How to Set Priorities for an OFCCP Review

Part 2 - Specific Priority Areas

Several articles in the August 2013 edition of The OFCCP Digest will discuss what was learned from the recent National Industry Liaison Group (NILG) conference that was held in July in Indianapolis. While the conference was useful and interesting, it had very little effect on the basic premise of this two-part series of articles. We suggested in part 1 of this series that companies should pay special attention to situations where OFCCP might find discrimination, and especially those situations involving entry-level hiring where OFCCP has historically been most likely to find discrimination. We also suggested that OFCCP currently has an interest in how employees are paid and in issues concerning veterans and persons with disabilities. In this article, we’ll discuss a number of specific items that should be priorities for all federal contractors and subcontractors.

One of the things that occurred during the time of the NILG conference was that OFCCP delivered to the Office of Management and Budget (OMB) a final version of OFCCP’s revisions to its regulations concerning veterans and persons with disabilities. We have no idea when (or if) OMB will release these regulations and we have no idea how the final version of the regulations differs from the proposals OFCCP issued in 2011. However, if these regulations are released by OMB, it is possible this will impact how federal contractors and subcontractors should set priorities. This conforms to the idea we expressed in part 1 of this series that companies should remain aware of OFCCP’s current focus areas. On the other hand, even if there are dramatic changes to the regulations concerning veterans and persons with disabilities, companies should continue to give top priority to issues involving hiring until we know with certainty that OFCCP will no longer focus so intensely on this issue.

Specific Items to Review in Regard to Hiring

Giving attention to issues involving hiring should generally be a company’s top priority in preparing for an OFCCP review. However, there are many different items that are associated with the hiring process that may require attention. Here are some of the key items that should be among a company’s priorities.

Companies should regularly and closely review statistical reports concerning applicants and hires. Companies should complete comparisons of applicants and hires by job group, job title, and requisition before submitting any information to OFCCP in order to determine where OFCCP may find statistical disparities.
Companies should ensure that all candidates to be included in statistical reports submitted to OFCCP have been properly dispositioned. Proper dispositioning can help the company by limiting the number of candidates included in applicant data to be submitted to OFCCP. Proper dispositioning can also help ensure that the company and OFCCP are comparing pools of applicants who potentially could have been hired to persons who actually were hired.
Companies should be able to effectively explain how their consideration processes work. OFCCP expects that every company has a process in place that determines which candidates are the best qualified candidates. Companies need to be able to explain to OFCCP the steps that are involved in the consideration process, who is involved in each step, and the safeguards that have been developed to ensure that the best qualified candidates are ultimately hired.
Companies should have an effective mechanism for surveying applicants regarding race/ethnicity and gender. While there is no specific time frame for this survey found in the affirmative action regulations, OFCCP expects that all candidates who are “Internet applicants” are offered such a survey.

Other Priorities

While items involving hiring may be the most important for a company to examine in preparing for an OFCCP review, there are other items that should receive some attention. Based on OFCCP’s current focus areas and the agency’s behavior during compliance reviews, we believe the following should be among a company’s next priorities.

Companies should review their compensation systems, practices, and decisions. Companies should review salaries for individual employees to see whether these salaries fall within the parameters of the company’s established compensation systems. Companies should also look for obvious disparities between employees in the same or similar positions, and then determine whether these disparities are explained by objective measures such as time in job, company seniority, or documented performance. (Note that any extensive review of compensation should be done under attorney-client privilege to ensure that the results of such a review are not easily accessible to OFCCP.)
Companies should ensure that they can provide documentation proving that open positions have been listed with the state employment service. This requirement is part of the current veterans regulations, and OFCCP is routinely asking for proof of this listing during compliance reviews.
Companies should maintain records of outreach efforts made to find minorities, females, veterans, and persons with disabilities. OFCCP expects that companies will have specific records of actions taken to find members of these groups for each open position.
Companies should maintain records of accommodations provided to persons with disabilities. Most companies get very few specific requests for accommodation from employees who have indicated on a survey that they are persons with disabilities. However, any such requests should be carefully considered and documented. Documentation regarding the denial of any such request should include the reasons for the denial.

Setting priorities in preparing for an OFCCP compliance review is not a simple matter. Each company’s circumstances are different and every compliance review has its unique qualities. However, by understanding OFCCP’s focus areas and using these areas to establish priorities, companies have a better chance at having a successful compliance review.

For more thoughts on how to establish priorities in preparation for an affirmative action compliance review, contact Bill Osterndorf at wosterndorf@hranalytical.com.

Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © HR Analytical Services Inc. 2013