The 33rd Annual Conference for the National Industry Liaison Group was held July 28-31, 2015 in New York City and brought together members of the federal contractor community, government officials, and EEO/affirmative action practitioners. The conference was particularly memorable as this year is the 50th anniversary of Executive Order 11246 – an important marker in furthering the goal of equality in the American workplace.
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.
- OFCCP Keynote Address
- EEOC Keynote Address
- Self Auditing your Applicant Screening & Tracking Processes to Ensure Compliance & Implementing Outreach & Accommodation Trackers
- Big Data Analytics and HR Technology: Meeting Emerging Challenges in Sourcing and Selection
- Pepsi ACT – Achieving Change Together: PepsiCo's Disability and Inclusion Initiative
- Navigating the New Frontier of Steering Claims
- Compliance Strategies for a New Era of Compensation
- Recruiting – Social Media & Technology
- From Base comp to total comp & everything in between
- Outreach – Individuals with Disabilities: Innovative Strategies for Enterprise-Wide Disability Inclusion & 503 Compliance
- Outreach – Individuals with Disabilities/Veterans: Successful Assessment of Veteran & Disability Outreach
- Stepping into the Unconscious Mind. Understanding Implicit Bias and Job Steering Decisions, Analysis, and Prevention.
- Update on Contemporary OFCCP Enforcement: A View from 2014 Settlement Data
- Legal Experts Panel
The Director of OFCCP, Patricia Shiu, provided OFCCP’s keynote address. Given the historic year, it was not surprising that her speech opened with reference to the passing of Executive Order 11246 and briefly chronicled important events leading to that significant moment. Director Shiu also made mention of another significant moment in history, one that happened this year, in which two new groups were added to the list of protected bases under EO 11246: sexual orientation and gender identity. Other themes included relationship building and “making inclusion a reality.” Before concluding the keynote address, Director Shiu accepted, on behalf of OFCCP, a commemorative plaque for the 50th anniversary of EO 11246.
Charlotte Burrows, Commissioner of the Equal Employment Opportunity Commission, delivered the EEOC Keynote Address, where she mentioned that 2015 is a year of celebration, with both the 25th anniversary of the Americans with Disabilities Act and the 50th anniversary of the EEOC, but also said that there is a long way to go with regard to equal pay and LGBT rights.
Commissioner Burrows stated that equal opportunity and equal pay are not only important for compliance, but are actually in a contractor’s best interest as they lead to the best outcomes for both the contractor and its employees. Additionally, as the U.S. is becoming more diverse and more business is conducted in global markets, companies with a diverse workforce will be better suited to recruit and retain talented employees. She offered three proactive strategies to address pay equity:
- Make it clear throughout your organization that pay equity is a priority with support from the top.
- Conduct statistical analyses of pay and, if you find problems, fix them.
- Allow employees to discuss pay with coworkers.
She also spoke about claims related to sexual orientation, where she warned contractors that often the initial allegation turns out to not be an issue, but the company’s response to the allegation may lead to a retaliation or intimidation claim. Before concluding the keynote address, Commissioner Burrows accepted, on behalf of EEOC, a commemorative plaque for the 50th anniversary of the agency.
Self-Auditing your Applicant Screening & Tracking Processes to Ensure Compliance & Implementing Outreach & Accommodation Trackers
This session, presented by Valerie Hoffman of Seyfarth Shaw, LLP, discussed ways to assess your own applicant screening and tracking processes in efforts to identify and prevent discriminatory selection practices. Several tools were identified to ensure consistency in the applicant screening process, including:
- Articulated competencies resulting from a thorough job analysis
- Use of standard, structured interview questions embedded in the applicant tracking system
- Use of validated tests (within the last 5 years or after changes in job occurred)
- Training of those conducting interviews or administering tests
In self-auditing your applicant screening and tracking process, it is important to focus your efforts on several key areas that can minimize the potential for adverse impact:
- If using an external source to list your jobs with ESDS, conduct an annual audit to ensure all relevant jobs are listed, including states where electronic listing is not available.
- Ensure basic qualifications and any special physical or mental requirements are listed in the requisition posting for jobs that require them.
- Post a unique job requisition for each opening or, if requisitions are not unique, ensure there is a system for identifying each opening and tracking applicants who were considered.
- Close all requisitions at least once each AAP year to limit risk and the size of the pool to be analyzed for adverse impact.
- Minimize or eliminate the use of general position requisitions.
- If candidates who have not applied for a particular opening are considered, ensure they are transferred into the ATS to the job for which they are considered.
- When using Job Boards, LinkedIn, Facebook, Google or other search sites, ensure that candidates are forwarded to your Careers website so that they are screened within the ATS once they have indicated interest in employment.
- Ensure that external recruiters (i.e., staffing firms) are maintaining applicant tracking for jobs for which they act as your screening agent. For example, administering compliant self-identification methods including disability self-identification according to OFCCP’s specific format requirements.
- Maintain all paper applications, including those who do not have basic qualifications for the position because the definition of applicant may be broader than OFCCP’s Internet applicant definition.
In a panel moderated by Jon Geier of Paul Hastings, LLC, panelists discussed how “big data” has affected use of the Internet applicant rule and human resources technology, tools, and practices. Presenters on the panel included: Heather Morgan of Paul Hastings, LLP, Nathaniel Glasser of Epstein Becker Green, Rick Holt of Resolution Economics, and Kathleen Lundquist of APTMetrics.
Panelists discussed the changing definition of “big data” from the sole use of the phrase in referring to data in terms of velocity, volume, and variety, to the more recent use of the phrase in referring to methods and tools. The focus of the majority of the panel was on challenges and concerns with the use of big data in employment. Such concerns included:
- Creation of predictive algorithms without a set of criteria based in theory.
- Data issues, such as statistical inaccuracies due to noise accumulation.
- Appropriate application of the Internet Applicant Rule in record-keeping obligations and data management techniques.
The panel closed with a list of suggested questions for contractors to ask of assessment vendors. These questions were:
- Has the process demonstrated adverse impact?
- What validation evidence has been collected to establish the job relatedness of the algorithm? Evidence collected for each job?
- Does the validation evidence comply with the requirements of UGESP? Get a copy of the validation study.
- What steps have been taken to ensure the security of test questions?
- What kind of ongoing monitoring do you provide as we continue using the instrument?
Included under the general theme of “Individuals with Disabilities and Veterans Strategy/Talent Management”, this session focused specifically on Pepsi’s major initiative to increase the hiring and retention of these groups. The initiative is known as the Pepsi ACT (Achieving Change Together). Pepsi ACT was first piloted in 2014 and has continued to expand in 2015. Panelists included a representative from Pepsi, as well as representatives from their partners in ACT: Ability Beyond and the Nevada State Rehabilitation Division. Pepsi ACT is largely focused on partnering with local organizations to find talent and then providing a track for applicants to train for the application process in order to increase their success in applying for the position (and remaining employed). Training includes “soft” courses like interview skills and retention skills (e.g., practicing scenarios), as well as “hard” skills like on the job training for position(s).
To begin this initiative, panelists stressed that the first step involved branding. Before starting PepsiCo needed to figure out what their goal was, how to communicate that internally and externally, and ultimately create their brand. To begin the Pepsi Act program, two test sites were selected in order to pilot their initiative. Panelists advised this should not be seen as a human resources or compliance initiative and not approached as a charitable action because it won’t stick long term (i.e., it will be the first program to be cut when budgets are tough). Also, it is important to imbed this process in the culture in order for it to last; otherwise, once your champion leaves the organization it may not last. They recommended having operations managers “lead the charge” locally. Much of the initiative is education. It was important to educate sites, employees, managers, and applicants that this initiative was not creating new or special roles, but rather a different track to get at the same job(s).
Several other tips for a successful initiative included:
- Create videos to share success stories from test sites to educate other sites about the initiative.
- Leverage social media to communicate brand and initiatives.
- Utilize display boards to communicate with front line workers who may not routinely access the intranet or other sites.
- Partner with ATS and HR personnel to streamline the data aspect.
- Internal training for managers and other employees.
- Host open houses for the community organization with whom you are partnering or would like to partner with. Bringing these representatives onsite to learn about the jobs and facility, as well as your initiatives, will help to bridge the gap and find candidates.
- Lastly, panelists reminded the audience that nothing happens as fast as you would hope and it is important to remember when getting a new initiative off the ground.
Steering remains a hot compliance topic, as OFCCP continues to direct compliance officers to look for and investigate steering claims during compliance reviews. We have written extensively on the issue of steering, which is defined as the policy or practice of guiding applicants or employees towards or away from certain jobs based on protected characteristics. It is an OFFCP focus given its relationship to hiring, promotional, termination, and compensation practices.
In this session, panelists including Christine Hendrickson and Michelle Mellinger (Seyfarth Shaw LLP), Michael DuMond (Economists Inc.), and Rob Speakman (Welch Consulting), reviewed several “steering” cases that are familiar to regular readers of our blog. Using the cases as a framework, the panelists presented several fictional case studies to highlight common fact patterns in steering cases and to underscore the importance of proactively assessing workforce data and practices for such patterns. A preliminary analysis involves an evaluation of specific data areas:
- Hiring patterns
- Workforce Analysis
- Incumbency to Availability Analysis
- Promotional opportunities
An important take away from the panel was a reminder of the distinction between correlation and causation. Simply because two variables are correlated (e.g., sex category tends to be correlated with job title, such that a higher proportion of men are in Title 1 versus a higher proportion of women in Title 2) does not mean that one variable is causing the other (i.e., sex status is not necessarily the reason for the proportion patterns across the two jobs). The “steering” cases that OFCCP settled make it clear that OFCCP infers causation on the basis of statistically significant disparities. Thus, it is imperative for contractors to have robust practices for selection, placement, and promotion to defend against steering claims. The more formalized and structured the processes, the better contractors can point to applicant choice and job fit as the reason for individuals being placed into the positions they are placed into.
Panelists presented a number of key takeaways for reducing the likelihood of steering allegations:
- Remember the distinction between correlation and causality – correlation does not imply causality.
- Require applicants and employees to unilaterally choose jobs or career paths for themselves, offering no guidance on those decisions.
- Keep job postings open to everyone.
- Use a requisition system that does not “co-mingle” levels or shifts.
- Reject applicants that apply generally for “any” or “all” positions.
- Prevent movement of applicants between requisitions.
- Maintain documentation to support defense that individuals are not interested in or qualified for higher paying positions.
- Ensure a competitive promotion process.
- Use and enforce a written, neutral procedure when placing employees in assignments.
- Set pay by legitimate, non-discriminatory factors.
- Self-monitor your pay and placements.
DCI’s Joanna Colosimo presented with Dean Sparlin of Sparlin Law Office, Dr. Rick Holt, and Elizabeth Bradley of Fortney Scott. The panel discussion focused on the pros and cons of conducting a proactive compensation analysis, methodologies that are useful for contractors, and considerations for contractors conducting proactive compensation self-audits. Themes from the session included:
- A primer on OFCCP strengthened enforcement and regulatory activity regarding compensation. This included an overview of Directive 307, the proposed Equal Pay Report, Pay Transparency, and the Revised Scheduling letter data points.
- Discussion of the legal requirements related to a proactive compensation analysis. The panel discussed when and why contractors should be conducting proactive pay analytics.
- Appropriate units of analysis. The panelists discussed the merits of conducting analytics by job title or other pay groupings, such as salary grade, that would be meaningful to a contractor. There was some discussion on the merits of proactively examining AAP job group as the pay group in the proactive compensation analysis to mirror what OFCCP may do during an audit, in addition to critically evaluating the job group structure in the Affirmative Action plans. However, most panelists concurred that the best unit of analysis is one that mirrored the contractors’ pay practices.
- Types of pay being analyzed in OFCCP audits. This included a noted trend of total compensation (which may not be an appropriate pay outcome from a methodology perspective), incentive pay, bonus pay, and base pay.
- The importance of conducting pay analyses under attorney-client privilege.
- Practical considerations. This included a discussion of how merit variables such as education and prior experience are stored in HRIS systems, as well as what data points OFCCP is expecting to see during an audit submission. Typically OFCCP is expecting to see all items outlined in the scheduling letter, yet, practically, not all data points are easily accessible to contractors.
- Preparing contractors for OFCCP audits. The panel discussed that experts are often seeing the use of a compensation interview during the course of an audit. Specifically, contractors are being asked to have the individual in charge for establishing compensation at an organization to be interviewed by telephone early during the desk audit stage.
During this session, panelists discussed ways federal contractors can successfully leverage social media, to identify and engage prospective candidates, while remaining in compliance with Equal Opportunity and Affirmative Action regulations. Although social media can serve as a great source for identifying passive candidates, much attention has to be given to complying with recordkeeping guidelines and ensuring the identification of who is deemed an applicant.
A consistent message echoed throughout the discussion was regarding the development and implementation of social media sourcing guidelines. Panelists shared that this can ensure recruiting professionals are aware of what needs to be done in order to stay in compliance, specifically with the Internet applicant rule. In establishing social media guidelines, some advice included:
- Guidelines should clearly define “expression of interest” (e.g., only applicants who come through the ATS),
- define when candidates are considered (e.g., only when there is an open position),
- describe how recruiters communicate with individuals (e.g., scripted email that invites a prospective applicant to review a link tied to an open position), and
- describe how to manage relationships with passive candidates (e.g., creating a talent community).
“A Proven Roadmap to Progress Toward 7% Self-Identification and Disclosure Objectives and Practical Solutions to Address Challenges Along the Way”
In a panel moderated by Katherine McCary, president of C5 Consulting, panelists discussed best practices for encouraging increased self-identification rates for individuals with a disability with the goal of meeting the 7% employment objective. Through the lens of each of their companies, panelists shared what organizations can do to increase self-identification, with the caveat that additional time is required to have robust evidence of their company’s program successes.
Katherine discussed various obstacles to self-identification; such as individuals being stigmatized or discriminated against, not seeing any personal gain, and not realizing they have a disability. While data typically best illustrates the makeup of a workforce, understanding unique disabilities helps contractors make progress toward a culture of inclusion. Communicating how the information will be used and that it will be kept confidential is key.
Bob Vetere of Northrop Grumman opened by speaking of the need to create a culture of diversity rather than an isolated campaign for self-identification, with the understanding that you may never reach the 7% utilization, though important to work toward. Among Bob’s recommendations were the suggestions of utilizing a welcoming statement on contractors’ websites, creating an engaging environment, and providing a self-service portal for accepting and handling requests for accommodation. Lori Kirsch of Florida Blue further focused on the need for cultural development through open discussion of leadership support, compliance standards, and cultural goals within the organization. Additionally, Lori shared that Florida Blue utilizes a dedicated recruiter to act as a liaison for individuals with a disability.
Marina Williams of Lockheed Martin emphasized the need for contractors to tap into their existing internal resources to best develop and celebrate a culture of diversity. Specifically, Marina suggested early and regular communications across the organization and to leverage existing communications and branding, as well as continuing development through communication and celebration of milestones and achievements. Jodi Woundy of Merck & Co., Inc. followed with a sample from the video series the organization has developed to engage their workforce in the self-identification process. Jodi suggested that pairing the videos with communications sponsored by senior leaders conveys to employees the importance the company places on employing and supporting individuals with a disability.
During this session, Mickey Silberman from Jackson Lewis P.C. discussed compensation as it relates to OFCCP’s new tools and new rules and provided guidance and best practices for federal contractors and subcontractors. With the release of Directive 307 and the new scheduling letter and item 19, contractors must shift their focus to clearly understand their compensation systems. He explained that compensation is one of the President’s top EEO enforcement priorities and the agencies are getting the “tools” needed to uncover and eliminate pay discrimination. More specifically, two of the tools coming soon are the Equal Pay Report and the proposed “Pay Transparency” Rule. The Equal Pay report would require contractors to submit company-wide compensation data on an annual basis and the Pay Transparency rule would prohibit discrimination and retaliation against applicants and employees who discuss pay. Below are some key takeaways contractors can follow to prepare:
- Review existing policies to ensure there are no restrictions regarding pay information.
- Identify variables/factors that affect pay and be ready to provide an explanation for each.
- Increase budgets for system changes and new requirements.
- Review current systems that store variables/factors related to pay and develop a plan to combine data (e.g., performance scores, education, salary, etc.).Conduct privileged pay analyses and focus on base and total comp.
- Identify and train all personnel involved in pay (e.g., Hiring manager, Talent manager, Supervisors, etc.).
Outreach – Individuals with Disabilities: Innovative Strategies for Enterprise-Wide Disability Inclusion & 503 Compliance
Speakers from the US Business Leadership Network (USBLN) discussed tools available to aid in evaluating a contractor’s extent of 503 compliance and disability inclusion, as well as some tips gleaned from contractors. Tips of note included the need for executive leadership team support for disability inclusion initiatives and utilizing cross-function teams to implement those initiatives. Leading organizations establish a disability employee resource group and centralize the accommodation process so that direct managers don’t have budget pressure for those requests. Regarding self-identification initiatives, using email alone to inform employees about the purpose of the survey was not as effective as:
- implementing a full campaign utilizing different media (i.e., videos, posters, voicemails),
- explaining why it is important for employees to participate (i.e., anyone could become someone with a disability – what kind of company do you want to be working for if it does/did happen to you),
- explaining how the results are confidentially maintained,
- including top executives or other employees willing to speak about their decision to participate, and
- training managers to be able to respond to employee questions about the survey is recommended.
Outreach – Individuals with Disabilities/Veterans: Successful Assessment of Veteran & Disability Outreach
This session focused on strategies for improving outreach and recruitment of disability and veteran populations, as opposed to assessment. Key takeaways on veteran outreach and recruitment included the recommendation that organizations internally evaluate the purpose for seeking to recruit veterans and be able to articulate that purpose. In addition, it was recommended that contractors enlist the assistance of employees who are veterans, where possible, to aid in providing insight to the veteran population and educate executives and hiring managers on this population. It was emphasized that the entire employee life cycle should be evaluated. This means identifying barriers in the recruiting systems and in the workplace and also educating the workforce, creating support for inclusion, and working to build brand recognition with disabled consumers who are a loyal consumer base. When asked about the assessment piece of compliance, the speakers pointed to tools being used to track outreach and recruitment efforts, including philanthropic donations, but did not include specific methods for evaluating the effectiveness of individual efforts.
Stepping into the Unconscious Mind. Understanding Implicit Bias and Job Steering Decisions, Analysis, and Prevention.
A legitimate steering claim would be one in which individuals are placed into particular organizational positions based on nothing more than protected group status. In this session, Julia Mendez (PeopleFluent), Charles Mullin (ERS Group), and Anna Nesterenko (ERS Group) provided an overview of bias and stereotype theory and research, which is the basis of OFCCP’s steering claims.
Presenters defined bias as “a subjective preference toward a particular viewpoint or belief that prevents a person from maintaining objectivity.” Unconscious bias (i.e., those subjective beliefs of which one may not be acutely aware) is distinguished from conscious prejudice and discrimination in which preferences or are known to and acknowledged by the individual who holds the beliefs. An example of unconscious bias that has been demonstrated and replicated in empirical research is that certain jobs tend to be associated with certain sex categories by many people (e.g., many individuals tend to think of men when they consider the job of Electrician). Similar examples may be found for race. As such, to the extent that sufficient guardrails are missing to protect against the influence of implicit bias in recruiting, selection, and placement, such processes may be vulnerable to discriminatory decisions and OFCCP challenge.
The presenters offered ten previously published strategies for combating unconscious bias in the workplace:
- Recognize that as human beings, our brains make mistakes without us even knowing it.
- Reframe the conversation to focus on fair treatment and respect, and away from discrimination and “protected classes”.
- Ensure that anonymous employee surveys are conducted company-wide to first understand what specific issues of hidden bias and unfairness might exist at the workplace.
- Conduct anonymous surveys with former employees to understand what issues they faced.
- Offer customized training based on survey results.
- Offer an anonymous, 3rd party complaint channel.
- Initiate a resume study within your industry, company and/or department to see whether resumes with roughly equivalent education and experience are weighted equally, when the names are obviously gender or race or culturally distinct.
- Launch a resume study within your company and/or department to reassign points based on earned accomplishments vs. birth traits.
- Support projects that encourage positive images of persons of color, LGBT and women.
- Identify, support and collaborate with effective programs that increase diversity.
In this strategic leadership session, DCI’s David Cohen presented on OFCCP enforcement trends. According to Cohen, OFCCP’s top enforcement priorities are:
- Entry-Level Failure to Hire Cases
- Good Faith Efforts
- Record Keeping
However, Cohen claimed, the data taken from DOL’s Public Enforcement Database show that the agency “is still trying to figure out compensation,” as indicated by a lack of settlements resulting from compensation discrimination and the majority of discrimination findings (70.58%) resulting from hiring cases in FY 2014.
Additionally, the total number of compliance evaluations and the percentage of those evaluations to result in a Conciliation Agreement or Financial Remedy are all lower in FY 2014 than in any other year under the Obama administration.
Other important takeaways from this session included:
- Contractors in the Northeast and Mid-Atlantic regions should expect more pay discrimination cases.
- There was at least one case where OFCCP pursued a compensation claim based on disability.
- OFCCP will no longer look at compensation comparing white employees to “total minority” employees, but will instead be comparing the different race groups to each other.
- Under the new Item 19 request, OFCCP will be increasingly looking at other forms of compensation besides base pay, such as bonuses.
Cohen’s advice is to conduct internal proactive analyses of base pay, and to consider analyzing additional forms of compensation as well, such as bonuses, commissions, and overtime pay. He suggests that OFCCP has said that they will follow Title VII principles and case law, so contractors should be conducting multiple regression analyses using “similarly situated employee groups” in their proactive analyses.
On the final day of the conference, David Fortney of Fortney & Scott moderated a panel of legal experts. The session was an effective wrap-up of the conference, with Fortney asking the panel to provide opinions on topics brought up in sessions over the previous two days. Some of the key takeaways from the panelists:
- Valerie Hoffman of Sayfarth Shaw stated that, while both the EEOC and OFCCP say equal pay is a top priority, their inability to identify compensation issues is the reason for the focus on steering. However, steering is a placement problem, not a compensation problem. Her advice to contractors was to conduct pay analyses, fill in holes in your data (such as prior relevant experience), and make sure you have the tools to assess progress.
- Mickey Silberman of Jackson Lewis said that despite the pressure on OFCCP to find pay discrimination, it is actually proving difficult for them to do so. The shift of focus to steering is because OFCCP is trying to use the same framework in compensation cases that has worked in failure to hire cases in the past.
- Steering is not only possible in entry-level jobs, according to Nita Beecher of Mercer. She advised that an analysis of steering should make sure people are not getting stuck in their career advancement and that people are being promoted equitably. She also said that, while there are not many compensation findings by the agency, the ones that do happen tend to be bad.
- According to Joe Lakis of Norris, Tysse, Lampey, & Lakis, the current relationship between the regulators and the regulated is the most tense and hostile that he has seen in 21 years, and that contractors are expending a lot of time, energy, and money trying to engage in good faith efforts.
- Jon Geier of Paul Hastings advised that adverse impact analyses should be conducted using the “highest-selected” group as the comparator. In audits, he recommends always conducting any analyses prior to submission for risk assessment purposes. With regard to transitional items, such as the new reporting for Section 503 and VEVRAA, he has not received any pushback from simply indicating that you are aware of the requirements and that they will be done. He stressed that a very important, but often overlooked, step in an audit is to send a “Hold” letter to establishments advising them to retain all relevant records when a scheduling or courtesy letter is received.
- Geier also suggested preparing alternate versions of AAPs using groupings other than AAP job groups that may be more meaningful within the organization. This may facilitate cooperation between the compliance and diversity functions and get more buy-in from executives. He stressed that these analyses should be conducted under privilege.
- Several panelists lamented that the agencies did not use their presence at the conference to provide new information to attendees.
By Brittany Dian, HR Analyst; Bryce Hansell, HR Analyst; Kristen Pryor, Consultant; Kayo Sady, Senior Consultant; Jana Garman, Consultant; Joanna Colosimo, Senior Consultant; Dave Sharrer, Consultant; Amanda Shapiro, Senior Consultant; Yevonessa Hall, Consultant; and Yesenia Avila, Associate Consultant at DCI Consulting Group