DCI Staff Attended NILG’s 32nd Annual Conference Held in Washington, DC

The 32nd Annual Conference for the National Industry Liaison Group was held August 5-8, 2014 in Washington, DC. This conference brings together members of the federal contractor community, government officials, and EEO/affirmative action practitioners. DCI Consulting Group (DCI) staff members were involved in a number of NILG presentations and attended a variety of sessions. Session summaries and highlights can be found below.

1. Pre-Conference Workshop Sessions: Compensation 101 Understanding Directive 307 
2. Pre-Conference Workshop Sessions: OFCCP 503/4212 Training – Better Practices to Facilitate Success 
3. Department of Labor Officials Keynote and Plenary Addresses 
4. Best Practices for Implementing OFCCP Regulations at Academic Institutions 
5. Guide to Proactive EEO Pay Analyses 
6. Compensation Analysis and Enforcement 
7. Contemporary OFCCP Enforcement 
8. Measuring Diversity with Metrics 
9. Navigating the Roadmap to Effective Outreach Efforts 
10. Revised FCCM & Other Agency Considerations on Title VII Perspectives 
11. Recent Significant OFCCP Developments 
12. OFCCP: Recruitment of Veterans and Individuals with Disabilities 
13. Steering: the New Frontier 
14. Performance Ratings 
15. The Lifecycle of a Test: Utility, Implementation, and Liability: A Panel Discussion 
16. Mining AAPs for Artificial Barriers 
17. The Power of LGBT Equality

DCI does not support or refute information shared in each session. The content is a summary of the presenters’ material.

Pre-Conference Workshop Sessions: Compensation 101 Understanding Directive 307

In this session, Donna Felder of the OFCCP, and Consuela Pinto from the Office of the Solicitor, discussed the basics of compensation and OFCCP’s enforcement of compensation under Executive Order 11246. The session included an overview of how compensation data is reviewed in the context of a desk audit, beginning with a preliminary analysis of the summary compensation data submitted as Item 11, which results in a high, medium or low indicator. From there additional information is requested and the compensation manager is interviewed to gather additional information. However, different regions may do these tasks in a different order (i.e., conducting the interview before asking for additional data, or asking for additional data and then conducting the interview).  It was confirmed that if contractors submit their Item 11 data by job title, it will be aggregated to job group because “if we look at compensation by job title, we may be missing channeling.” Similarly, in stating the need to change from SSEGs to PAGs, it was stated that they “could not identify steering issues” using the SSEGs, and that they encountered some with only one gender or race (despite a requirement of the SSEG being that it included at least 5 minorities/women.  It was further emphasized that the compensation review process reflects a team approach, including statisticians and the solicitor’s office, not just the compliance officer. OFCCP wants contractors to think “globally” about compensation, not just considering base pay, so as to avoid missing a potential problem. In listing the “types of pay discrimination” it was noted that this could involve not just differences in salary or hourly rate, but also in job assignment, promotions, access to earning opportunities and access to add-ons/increases.  Contractors were advised to analyze compensation by race/ethnicity instead of total minority and compare against highest paid, not necessarily using whites as the comparator. The session concluded with general recommendations that include keeping good records and taking action where meaningful discrepancies are identified and not explainable by non-discriminatory factors.
 

 

Pre-Conference Workshop Sessions: OFCCP 503/4212 Training – Better Practices to Facilitate Success

This session began with a broad overview going back to the reason the updates to these regulations and then walking through a general outline of the major regulatory changes.  Presenters included Beverly Dankowitz, the Office of the Solicitor, Naomi Levin, and Vincent Whipple from the OFCCP.  Familiar responses to commonly asked questions were reiterated here, including:
 

• The electronic notice requirement for remote workers can be satisfied by sending an email, but if it is placed on company intranet it needs to be conspicuous, not buried;
• If the protected veteran category data required for VETS100A changes, then the protected veteran voluntary self-id form should be changed to be consistent;
• The protected veteran voluntary self-id form can be added to the currently used race/gender form;
• It is recommended that employees be allowed to make changes to the veteran selection in employee self-service, if applicable;
• If someone identifies as a disabled veteran, they can be counted as a disabled employee (even if they didn’t identify as such on the disability form), as long as they would meet the definition of disabled; clarified that they would not necessarily over-rule a response of “no” on the disability form, but would potentially enter an affirmative if no response was provided;
• Once an employee responds affirmatively to the disability form, they can be counted always, because of the wording of the “yes” response on the form;
• Where concerns about non-response exist, it is acceptable to include the number of non-responses with the other data collection analysis efforts, but contractors are encouraged to “look at how to make people more comfortable” if this number is high;
• When asked if a hospital employee’s movement from per diem to full time status would count as a “job filled” the response was “if it was a status change, then probably” but “is it another job? [Jobs filled] is not just movement.” Contractors can make the call in these gray areas; just be able to explain reasoning for what was counted as a job filled;
• Reminder that even though Frito Lay decision was vacated, it was codified into these regulations, so OFCCP can ask for information moving forward, past the scheduling letter, where the concern for continuing violations exists.

Department of Labor Officials Keynote and Plenary Addresses

Keynote Overview

The 32^nd annual National Industry Liaison Group (NILG) conference was held in Washington D.C. this year August 5^th through August 8^th. The 2014 conference commemorated 50 years of Civil Rights, as several agency and department heads presented keynote speeches encompassing the theme “Learning from the Legacy, Focused on the Future”.

Opening the conference was Secretary of Labor, Thomas Perez, who gave an engaging presentation, imploring the contractor community to communicate with the Department, saying “If you think we’re screwing up, I hope you don’t hesitate to let us know.” The Secretary broadly addressed several recent regulations relevant to the Federal Contractor community, including the recent executive order which would require contractors to inform contracting officers of labor law violations when bidding for federal contracts, and the newly implemented VEVRAA and 503 regulations, calling this the “unfinished business of the ADA.”  Secretary Perez also acknowledged the good work of employers in the past several months to increase jobs, noting that 22% of the workforce is employed by federal contractors.

The EEOC, DOJ, OFCCP, and Wage and Hour Division of DOL gave updates on “hot topics” within their respective arenas.  As expected, the EEOC touched on pregnancy discrimination and barriers to hire, including a mention of the arrest and conviction guidance recently released, in addition to an emphasis on women being excluded from traditionally male occupations. The Department of Justice, Civil Rights Division mentioned that their primary focus is on gender pay discrimination, although their jurisdiction is with state and local employers unless referrals are received from DOL agencies (i.e., EEOC/OFCCP). The Wage and Hour division mentioned that they are currently finalizing the minimum wage rules, following the NPRM spurred by the Presidential memorandum, and the final rule on that should be expected this upcoming fall. OFCCP had quite a full plate to discuss. Debra Carr, Director of the OFCCP’s Division of Policy and Program Development, cited the new Equal Pay Report NPRM and encouraged contractors to read it and provide substantive comments. She also stated Executive Order amendments related to covering LGBT employees and applicants are both in the rulemaking process. She mentioned that the Sex Discrimination Guidelines are in the works, construction enforcement is still being addressed, and the scheduling letter (in rulemaking since 2011) will conclude over the next few months. Further, Carr mentioned that 503/VEVRAA implementation guidance is being updated as new FAQs, trainings, and technical resource guides are being developed. Finally, Carr mentioned that the FCCM will be revisited and the agency intends to undertake an annual review and revision process for this document as feedback is received from both compliance officers and the contractor community.

The OFCCP plenary session included presenters from the OFCCP, DOJ, and OPM. This panel was pushed for time, and generally discussed their respective agencies’ work relating to the Equal Pay Task Force. OPM (Jeanne David Jacobson) highlighted the federal employee pay analysis, discussing results of the analysis and gaps that had been identified. For the analysis, federal employees were split between white and blue collar, with the several hundred occupational titles in the federal government being aggregated into 37 occupational groups. In this analysis, it was found that occupation explains most of the gaps identified. In addition, gaps were smaller in the younger (18-24) age group and at the supervisory level, including the Senior Executive Service, though women make up just over 30% of the supervisory groups.  OFCCP (Pam Coukos) discussed Directive 307, and stated that this directive allows OFCCP to examine data in a practical manner.  She also mentioned that there are more systemic investigations in the pipeline at OFCCP.

Concluding this year’s conference was OFCCP Director Pat Shiu who addressed conference attendees with general remarks in reference to the recent presidential actions including the most recent EO on contractor violations of labor laws, acknowledging, “We have some big assignments on our plates. In just the past five months, much has happened in the contractor space.” Director Shiu placed great emphasis on federal contractors’ role as models for change in the “unfinished business of America” and the need for contractors to model best practices and behaviors within their given work environments. While committing to continuing forward progress, Director Shiu acknowledged that OFCCP “does not operate in a vacuum” and will keep listening to the contractor community as they continue to be forthcoming with questions and comments in reference to the recent changes.

Regional Director Plenary Session

This section included each of the regional directors of the OFCCP in addition to Debra Carr, the Director of Policy and Program Development. The format was changed from a more prepared question and answer session, with pre-submitted questions, to a live question and answer session, framed as a conversation between OFCCP and the contractor community. Though OFCCP officials are not able to speak much about the Equal Pay Report NPRM, they did encourage contractors to read it and to provide substantive comments to assist in the rulemaking process. Specifically, it was said that it is “a disservice to leave public comment up to specific groups” and that contractors should participate in the process. The rollout of the new 503 and VEVRAA regulations was addressed, with OFCCP officials stating that the rollouts were “good” but that they could be better in the future, including additional webinars, cheat sheets, technical assistance guides, and scripts for the helpdesk to be more prepared to answer common questions received.  When asked, many contractors favored the “phased-in” approach used with the 503/VEVRAA regulations.  Also mentioned were the Public Service Announcements that the agency has partnered with ODEP to produce to assist contractors in communicating the reason for the new disability self-id request, though a timeframe for rollout was not available.

In addition, Bradley Anderson, the Regional Director for the Midwest region, emphasized that the OFCCP is working to address the full extent of the requirement for listing positions with the state workforce agencies, as required by VEVRAA, and encouraged contractors to develop relationships within these agencies to aid in their cause. Debra Carr mentioned that the EO Poster will be revised to reflect the recent regulatory changes, though these changes will not occur for a while due to the fact that multiple rounds of revision would be required if the overall process was completed too rapidly.

Finally, when the disability form was discussed, it was identified that OFCCP leadership was painfully unaware of the complexities involved in the electronic formatting and storage of the disability form itself – leading to intense discussion and frustration on both sides of the table. It remains to be seen what tangible outcomes may result from this session, which served to address major points of concern from the contractor community in dealing with and adapting to the recent regulatory changes.

Best Practices for Implementing OFCCP Regulations at Academic Institutions

A panel of speakers presented best practices for implementing OFCCP regulations at academic institutions. The panel of speakers included Inderdeep Chatrath, PhD, Duke University; Taffye Benson Clayton, EdD, University of North Carolina; and Judy Ferres, Boston College; and was moderated by Shirley Wilcher, AAED. Dr. Chatrath shared the following compensation best practices: understand institutional compensation practices (e.g., distinctions between faculty and staff), validate practices through self-audits, create pay analysis groupings (i.e., groups that are different than same title or similarly situated) and document factors that determine pay which may differ on a case by case basis. Ferres shared best practices for attracting qualified talent, such as engaging student veterans, bringing awareness to university careers (i.e., create own pipeline of talent), and hosting a table for the university at its own job fairs. In addition, Ferres was asked about the possible challenges for implementing the Section 503 self-identification for faculty members. Ferres responded by explaining the involvement of the marketing and communication department at Boston College helped raise awareness of why it’s important (i.e., not just about contractual obligations, but rather the right thing to do). Dr. Clayton shared promising practices for faculty recruitment, which include engaging key players, identifying senior diversity faculty champions, communicating the affirmative action goal areas and implementing incentive programs.

Guide to Proactive EEO Pay Analyses

This panel discussion led by DCI’s Dr. Mike Aamodt included a group of legal and technical professionals in the realm of compensation, which also included DCI’s Dr. Kayo Sady.  Asserting that the OFCCP’s Directive 307 provided contractors with limited guidance in conducting compensation analyses, the Center for Corporate Equality assembled a Technical Advisory Committee (TAC) of 18 professionals to write a best practices document for conducting proactive compensation analyses.  The final document will be available at no cost to the contractor community, and is expected to be released at the end of the year.

In this presentation, members of the Compensation TAC discussed best practices that will be outlined in the final document.  Some of those best practices include:

• Referring to a proactive analysis as an “EEO pay analysis” rather than an “equity analysis”.  The rationale was that “equity” infers everyone should be paid equally, and does not take into account the legitimacy of merit differences not due to race and gender.
• Conducting the proactive EEO pay analysis under attorney-client privilege.
• Grouping employees based on similarly situated job-related factors for the purpose of an analysis.  Some groups could, or should, be grouped according to job title level, while other groups could be combined based on similarly situated jobs.
• Considering steering issues in your proactive compensation review.
• Considering whether performance ratings are useful in a compensation analysis.
• Being strategic when considering making pay adjustments.

Compensation Analysis and Enforcement

Both Pam Coukos, an OFCCP senior program advisor who focuses on compensation, and Mickey Silberman, the managing AAP-OFCCP Practice Group attorney with Jackson Lewis, indicated that compensation is a top priority for the OFCCP during compliance reviews.  Both panel members discussed OFCCP’s Directive 307, which outlines how contractor compensation systems should be reviewed for potential disparities.

Coukos continued to encourage contractors to think broadly about compensation, including potential causes of compensation disparities, such as “steering” individuals into lower paying jobs based on race or gender.  Coukos encouraged contractors to revisit policies and practices that drive pay, including procedures outlined in collective bargaining agreements.  The OFCCP may evaluate the contractor’s industry, type of jobs, and ask questions about how employees are paid during a compliance review.

Silberman focused on best practices for contractors when reviewing their compensation system.  Being proactive about identifying pay differences and collecting information that may help explain legitimate, non-discriminatory reasons for pay differences is an important first step.  Silberman also offered advice that contractors should focus on similarly situated compensation groups for the pay analysis groups, while Coukos indicated that similarly situated is case specific, based on the contractor’s practices and how employees “get paid”.

Contemporary OFCCP Enforcement

OFCCP hit the ground running in 2013 with the release of Directive 307 and the revised  Section 503 and VEVRAA regulations. The presenters in this session, DCI’s David Cohen and OFCCP Director of Operations Marika Litras, reviewed the agency’s 2013 settlement data, recent trends and priorities.

In his opinion, Cohen presented OFCCP’s top five priorities:

Steering

Cohen informed attendees that steering is NOT a compensation issue as OFCCP may believe, but instead a selection and hiring issue. He warned contractors against the flexibility of allowing applicants and employees apply to any position available. Contractors will be in a position to defend their selection processes by having a requisition system in place that demonstrates individuals apply to certain positions willingly. Additionally, contractors should review basic qualifications regularly and be aware of internal movements and posting of positions. Litras explained OFCCP defines steering as a compensation issue because it’s a “hybrid” that affects hiring decisions as well as promotions and pay. She added OFCCP takes a holistic approach when reviewing compensation and will not only review starting pay but focus on bonuses, commissions and other benefits.

Compensation

Both presenters agreed that contractors will see the full force of Directive 307. Cohen advised contractors to stay away from attempting to predict the types of compensation analyses the agency conducts. Contractors will need to understand their compensation system and clearly identify drivers that influence pay such as performance ratings, experience and education. Contractors should also review their job groups to ensure individuals are grouped correctly in terms of work being performed. Litras added that compensation will soon be the most frequently cited issue and that “the cabinet is getting full” of pending cases involving contractor pay issues.

Hiring cases

Cohen reminded attendees that OFCCP’s “bread and butter” continue to be entry-level failure to hire cases. There were a total of 65 cases during fiscal 2013 and 42 represent hiring cases which accounted for a total of $6,323,249 in monetary settlements. OFCCP’s technique consist of finding statistical significance and the larger the pool, the most likely you will get statistical significance.

Good faith efforts

Both Cohen and Litras agreed good faith efforts will be a huge focus as contractors continue to see Section 503 and VEVRAA enforced. Cohen advised contractors to create a good faith effort binder even if it’s company wide. Litras added that it’s “not that hard to comply” with requirements to use good faith efforts focusing on certain groups. Including good faith effort documentation without a follow-up request from OFCCP is also a good practice to follow.

Recordkeeping

Cohen noted the majority of technical violations resulting in conciliation agreements stems from recordkeeping violations. Specifically, these violations are from missing paperwork and applicant data. Litras added the violations derive from applicant data showing one-to-one hires and a contractor’s failure to breakout the selection or hiring stages.

Towards the end of the presentation, Litras mentioned the following priorities and goals the agency will focus on going forward:

1) 503/VEVRAA Compliance
2) Getting AAPs on time (according to Litras, contractor’s send their AAPs in 60 days on average)
3) More collaboration
4) Provide compliance assistance (trainings/webinars)
5) Denial Access

a. Scheduling letter
b. Off-site review of records
c. On-site review of records
d. Access to facilities

Measuring Diversity with Metrics

Joe Lakis, EEAC President, offered attendees practical suggestions for measuring diversity performance within their organizations. He explained there is no single “right” or “best” way to measure diversity and it ultimately depends on the organization’s current focus and workforce representation. Lakis went on to explain that diversity is more than just basic demographics and there are two types of variables used to measure diversity:

• “Big D” variables -difficult to measure
• “Little d” variables- readily measurable

Lakis stated that some organizations use diversity metrics to measure performance and there are positive and negative outcomes. On the positive side, an organization may experience increased attention, awareness, and support and can link compensation to diversity. In contrast, diversity may be equated with how it is measured. Additionally, an organization may experience difficulty distinguishing diversity from equal employment and affirmative action compliance.

During the session, Lakis stressed the importance of defining diversity. He noted that diversity used to be about “sensitivity and awareness”, then the focus shifted to “representation, numbers and analyses” and now it’s about “leveraging human capital.”  Lakis presented the idea of capturing diversity figures using an index because it can represent any type of data without revealing the actual underlying data.

Navigating the Roadmap to Effective Outreach Efforts

This session focused on evaluation of the effectiveness of outreach efforts, which is an increasing focus of OFCCP. Representatives of Jackson Lewis discussed both qualitative and quantitative measures available to federal contractors in conducting this evaluation. The proposed quantitative measures were based on such sources as asking recruitment sources how many referrals they made to the organization, tracking the number of clicks on recruitment source postings, asking applicants from where they were referred, and comparing applicant pools across years. The proposed qualitative measures included examining the quality of referrals received from a recruitment source, how long it took to fill a job, and attrition of referrals. The presenters noted that with increased outreach and recruitment, applicant pools are likely to increase in volume. They advised contractors to be aware that with larger applicant pools may come an increased record-keeping burden, potential impact on adverse impact, and an increased need for quality checking applicant disposition codes.

Revised FCCM & Other Agency Considerations on Title VII Perspectives

Instead of focusing on the Federal Contractor Compliance Manual (FCCM), the presentation began with a mention of the LGBT Executive Order from July 21, 2014, explaining that it affects both federal contractors and federal employees and that an NPRM from OFCCP is expected in mid-October. Currently data is being collected and research is being conducted for the NPRM. When asked how EEOC has addressed LGBT, the case of Macy v. DOJ from 2012 was cited. In this case transgender was recognized as a cognizable claim under Title VII, though EEOC has yet to receive a case framed specifically as an LGBT issue.

A series of questions were then asked about commenting on NPRMs (e.g., is it volume that counts, how does anonymity or lack thereof affect how the comment or organization is viewed, what is most helpful in comments).  Victoria Lipnic, EEOC, stated that in her career she has tended to look for quality and practical responses which describe the specific problem and the reason it is a problem. She stated that in her experience it is less about the number of comments, and more about the quality; also, whether a company chooses to reveal its identity in comments, or not, does not affect how the company is viewed. Debra Carr, OFCCP, stated that “in order to get really good policy, it has to be informed”.  The more information provided about how the proposed regulation affects business or would/would not work in the real world is helpful.

Carr was not allowed to discuss the Equal Pay Report NPRM specifically at this stage in the rulemaking process. Valerie Hoffman from Seyfarth Shaw gave the audience a brief preview of the highlights included in the NPRM and mentioned the OFCCP comments on page 45 of the NPRM. Those comments state that OFCCP is aware that EEOC is considering compensation data collection, and has recently prepared a statement of work for a pilot study, but that OFCCP decided the EEOC’s timeframe is incompatible with the timeframe given by the presidential memorandum. As a result, they are both continuing down separate paths at this time. Lipnic gave an overview of EEOC’s charge to enforce the Equal Pay Act under FLSA. She stated that they don’t get a lot of equal pay complaints, and she voted against the pilot compensation reporting because she feels more work needs to be done to address the question that arose from the expert panel of the National Research Council of the National Academies: what do we intend to do with the data? “If we are going to ask small businesses to report, we need to have a plan about what to do with it.”

While this session was labeled “Revised FCCM” the only mention of the FCCM was in the last couple of minutes of the session, when Debra Carr, OFCCP’s Policy Director stated that she considers the FCCM to be a living document.  Carr went on to explain that her office has received feedback from both compliance officers and the contractor community that there are changes that need to be made, and there is a plan to implement an annual review and revision process for the FCCM. However, a date for when to expect the next version was not provided.

Recent Significant OFCCP Developments

During this plenary session, John Fox, Melissa Speer, OFCCP SWARM Regional Director, and Janette Whipper, OFCCP Pacific Regional Director, discussed hot topics in OFCCP enforcement.  The topics of interest included the new 503/VEVRAA regulations and compensation enforcement.  With regard to the 503/VEVRRA regulations, all parties on the panel agreed that over the past few years the OFCCP has increased enforcement related to contractors listing jobs with the state Employment Service Delivery System.  Ensuring that jobs are being listed with the appropriate workforce agency in each state is a best practice for all contractors.

During the compensation-focused part of the presentation, Janette Whipper, a former plaintiff’s attorney, indicated that addressing pay discrimination is a top priority for the Obama administration.  She asserted that the gender pay gap is a real issue, and highlighted recent OFCCP settlements with Medtronic and G&K Services.

Whipper continued by offering the following best practices relating to compensation:

• Self Audit – identify risk/problem areas and address them accordingly.
• Monitor pay policies – policies and procedures can be great but the problem may be the implementation.
• Understand the factors that influence pay – contractors should collect all variables that influence pay such as performance, education and experience.

She concluded by asking contractors to communicate when the agency has “missed something” in order to improve processes and procedures.

OFCCP: Recruitment of Veterans and Individuals with Disabilities

This session’s presenters, Colet Mitchell, Office of Disability Employment Policy (ODEP), and Ruth Samardick, Veterans Employment and Training Service (VETS) discussed best practices around outreach and recruitment for veterans and people with disabilities. For individuals with a disability, it was recommended that contractors:

1. Have a plan and include individuals with a disability in diversity plans
2. Form strong partnerships with recruitment sources
3. Include students with disabilities in internship programs
4. Promote universal design in information and communications technology
5. Promote inclusion  in your subcontracting opportunities

Resources for working with individuals with a disability included sites for ODEP, Job Accommodation Network (JAN), and Employer Assistance and Resource Network (EARN).

Reasons for targeted veteran outreach included that they are:

1. Highly motivated individuals
2. Tested in the most demanding professions
3. Graduates of cutting-edge technology training
4. Responsible for millions of dollars’ worth of federal assets
5. Seasoned team players, leaders, and managers

Resources for working with veterans included Veterans Employment Center, National Labor Exchange (NLX), America’s Heroes at Work (AHAW), My Next Move for Veterans.

Steering: the New Frontier

Contractors can anticipate OFCCP audits that focus on whether employees are “steered” into certain jobs based on race/ethnicity or gender, based on this collaborative presentation from Jackson Lewis attorneys Michelle Duncan and Matthew Camaradella, as well as OFCCP regional director, Diana Sen.  Although the concept of “steering” is not new to the EEO realm, both Jackson Lewis attorneys and OFCCP acknowledge that any indication or allegation of steering will be thoroughly examined during OFCCP compliance reviews.

In February 2013, the OFCCP Directive 307, which outlines how contractor compensation systems should be reviewed, address steering as a practice that could result in systemic pay discrimination.  Regional Director Sen indicated that the OFCCP is investigating steering issues in a case-by-case analysis, similar to the approaches outlined in Directive 307.  Sen also indicated that the Northeast region of the OFCCP has “multiple cases in the pipeline” related to employees being steered, and that the issues are companywide problems.

As indicated by both Jackson Lewis attorneys, steering is really both a failure-to-hire practice, as well as compensation discrimination.  There is no single analysis that can effectively help a contractor pin-point a steering allegation, and it is a best practice for contractors to review their policies, practices, and implemented procedures to ensure steering is not occurring at their organization.  In recent cases, OFCCP compliance officers are conducting on-site reviews and scrutinizing the racial and gender composition of different areas of the audited establishment.

Performance Ratings

A vast majority of organizations conduct annual and semi-annual performance evaluations, and decisions resulting from such evaluations have tangible employment consequences for the workforce at large, including pay, promotion, or termination. For this reason, it’s important for HR professionals to get a handle on the analysis of appraisal ratings so that one is better equipped to detect significant differences in performance ratings and to avoid any legal backlash that may come as a result of discriminatory evaluations.

In her discussion of performance ratings, Dr. Lisa Harpe of Peoplefluent stressed the point that performance evaluation systems are not discriminatory in and of themselves. Instead, it is their relationship with subsequent employment decisions related to pay, non-monetary rewards, promotions, terminations, reductions in force, and so on that can lead to discrimination or serve as a pretext to discrimination. Therefore, it is important for organizations to evaluate their performance management system to identify any risks to equal employment opportunity. A good performance management system assesses employees on specific performance dimensions that stem from a job analysis, and utilizes behavioral indicators aligned with critical job tasks to maximize objectivity in ratings.  Additionally, it is imperative to ensure that managers completing evaluations have received some kind of rater training to decrease potential for bias or other processes that could lead to rating inaccuracy. As Dr. Harpe discussed, it is a good idea to provide refresher trainings to existing raters periodically throughout the year to reinforce the importance of consistency in ratings. Organizations will also want to consider including some form of appeals process in their appraisal system to increase fairness perceptions and decrease the probability that legal action will result.

With these tools and a deeper understanding of your performance appraisal system, you as an HR professional will be better equipped to investigate whether barriers to equal employment opportunity exist for employees at any level of your organization.

The Lifecycle of a Test: Utility, Implementation, and Liability: A Panel Discussion

This panel discussion included experts from DCI Consulting Group, Biddle Consulting Group, as well as the Chief Psychologist from the OFCCP, Rich Tonowski, and Melissa Speer, the OFCCP SWARM Regional Director.

Experts discussed whether or not contractors should consider pre-employment testing in their organizations.  The most important question contractors should ask is: What is the base rate, or the percentage of applicants that are qualified?  Low base rate jobs would require high selection standards, but high base rate jobs don’t always require high selection standards.  Other important factors include knowing the consequences of administering a test, what should be measured by the test, and what test should be used, if any.

Dr. Eric Dunleavy from DCI Consulting discussed issues related to implementing selection tests such as defining the appropriate cut scores and approaches for an organization, security issues, and retesting concerns.  Dr. Dunleavy relied on the Uniform Guidelines on Employee Selection Procedures to discuss how to make the appropriate considerations in setting defensible cut scores, and implications for contractors.

As outlined by Dr. Tonowski, contractors and best practice employers should monitor test results for adverse impact at least annually, review any incidents or complaints that arise during test administration, and other technical components to ensure selection tests are really predicting top performers.  Melissa Speer followed by reminding contractors that employers must maintain records related to testing, such as copies of test versions, results of the test, documents related to the administration of tests, and validity studies.

Speer also outlined the OFCCP’s process with relation to employee selection tests.  First, if adverse impact exists in the total selection process, the OFCCP would conduct a components analysis to determine if the test caused the impact.  If the test caused the impact, the OFCCP would likely request a copy of the validation study, and review for validity evidence from experts.  If there is no validity evidence, the OFCCP would continue the investigation and would likely come on-site and conduct employee interviews.  Remedies may include a Notice of Violation, back pay, and additional reporting.

Mining AAPs for Artificial Barriers

In the session entitled, “Mining AAPs for Artificial Barriers,” Jude Sotherlund of Sotherlund Consulting, led an engaged audience through the early history of civil rights achievements in America before arriving at the core of her lecture:  the identifiable-in-data “glass ceiling” issues still faced by qualified women and minorities in the workplace today.  Sotherlund described both artificial barriers (in the form of attitudinal and institutional biases) and real barriers that women and minorities face as they attempt to advance into management-level positions in organizations. All barriers, Sotherlund argues, can be identified through “data mining” or the process of extracting potentially meaningful and useful patterns of information from large quantities of data.

Before taking a deeper dive, Sotherlund offered some general advice for contractors; she urged them to compare their personnel policies to personnel practices, noting that there have been large gaps in the audits she’s seen.  Especially relevant to the contractor community at current-- with regard to EO 11246, 503 and VEVRAA -- is the need to engage in effective outreach and recruitment efforts. Sotherlund encourages contractors to examine across divisions the funding and resources set aside for specific efforts, and ask tough questions like “did these efforts actually take place?” She also recommends a review of contractor’s referral programs, as there are often disparities concerning referred and hired v. referred and not hired. Picking apart each system related to personnel decisions, Sotherland offered up data mining recommendations surrounding everything from social media sourcing, hiring hall arrangements to steering and base pay decisions. Sotherland’s response to the myth that “it’s just a matter of time before they [women and minorities] advance...” underlies all of her recommendations given during the session:  “No. it’s a matter of employers recognizing and doing something about it.”

The Power of LGBT Equality

The recent revisions to Executive Order 11246 regarding LGBT obligations for federal contractors were discussed in an interactive NILG breakout session led by Cheryl Behymer and Celia Joseph of Fisher & Philips, LLP. As discussed in an earlier blog post, the updated Executive Order will do two things:  add sexual orientation and gender identity as two additional protected groups under 11246, as well as add LGBT Affirmative Action obligations for federal contractors.

“Will there be a LGBT self-ID form?” many contractors asked during the session, along with questions concerning the solicitation of LGBT information from applicants and current employees. Behymer and Joseph advised against contractors soliciting LGBT status prior to the revised Executive Order being published in the Federal Register because of how this might create potentially incriminating evidence during an OFCCP or EEOC investigation. Many contractors at the session acknowledged that they were already soliciting LGBT status for purposes of diversity benchmarking, for creating a litmus test to gauge the appropriateness of specific LGBT categories, for determining the percentage of LGBT incumbents in their organizations, and so on.

“EEOC is looking for LGBT issues,” Joseph pointed out, as discriminating against an individual due to gender nonconformity is a violation of Title VII (sexual discrimination). Because OFCCP and EEOC have entered into a memorandum of understanding on the issue of gender nonconformity, we are likely to see a partnership between the two organizations during an OFCCP audit.

You may be wondering what you can do in the meantime to prepare for the updated Executive Order. If you do not have it in the works already, you may want to include LGBT in internal antidiscrimination training and be sure to have affinity groups available for LGBT employees, Behymer recommended. Look out for the revised Executive Order at the end of October, and submit your comments to the Center for Corporate Equality at the following email address: info@cceq.org.

By Joanna Colosimo, Senior Consultant; Keli Wilson, Senior Consultant; Jana Garman, Consultant Kristen Pryor, Associate Consultant; Yesenia Avila, HR Analyst; Brittany Dian, HR Analyst; and Jeffrey Henderson, HR Analyst, DCI Consulting Group