DCI Staff Attended NILG’s 33rd Annual Conference Held in New York City

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 50^th 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.

1. OFCCP Keynote Address
2. EEOC Keynote Address
3. Self Auditing your Applicant Screening & Tracking Processes to Ensure Compliance & Implementing Outreach & Accommodation Trackers
4. Big Data Analytics and HR Technology: Meeting Emerging Challenges in Sourcing and Selection
5. Pepsi ACT – Achieving Change Together: PepsiCo's Disability and Inclusion Initiative
6. Navigating the New Frontier of Steering Claims
7. Compliance Strategies for a New Era of Compensation
8. Recruiting – Social Media & Technology
9. Self-Identification
10. From Base comp to total comp & everything in between
11. Outreach – Individuals with Disabilities: Innovative Strategies for Enterprise-Wide Disability Inclusion & 503 Compliance
12. Outreach – Individuals with Disabilities/Veterans: Successful Assessment of Veteran & Disability Outreach
13. Stepping into the Unconscious Mind. Understanding Implicit Bias and Job Steering Decisions, Analysis, and Prevention.
14. Update on Contemporary OFCCP Enforcement: A View from 2014 Settlement Data
15. Legal Experts Panel

OFCCP Keynote Address

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.

EEOC Keynote Address

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:

1. Make it clear throughout your organization that pay equity is a priority with support from the top.
2. Conduct statistical analyses of pay and, if you find problems, fix them.
3. 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.

Big Data Analytics and HR Technology: Meeting Emerging Challenges in Sourcing and Selection

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?

Pepsi ACT – Achieving Change Together: PepsiCo's Disability and Inclusion Initiative

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.

Navigating the New Frontier of Steering Claims

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
• Compensation
• 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.

Compliance Strategies for a New Era of Compensation

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.

Recruiting – Social Media & Technology

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:

1. Guidelines should clearly define “expression of interest” (e.g., only applicants who come through the ATS),
2. define when candidates are considered (e.g., only when there is an open position),
3. 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
4. describe how to manage relationships with passive candidates (e.g., creating a talent community).

Self-Identification

“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.