The Department of Labor’s OFCCP released six new FAQs covering portions of the VEVRAA and Section 503 regulations. This blog addresses the new guidance for determining the number of "jobs filled" for an affirmative action plan. As a reminder, jobs filled is one of four data collection points now required under the “Data Collection Analysis” section of the revised regulations. These data points will be used to determine the effectiveness of your outreach efforts. In a previous blog, we discussed OFCCP’s broad definition of “jobs filled,” which included both competitive and non-competitive movements, and the difficulties contractors will face when attempting to collect this type of data. The updated FAQ provides further guidance on what kind of movement constitutes a job fill:
Question: Does the number of “jobs filled” include step or ladder movements that are automatically attained upon completion of a stated event, such as time in the job or attainment of a particular certification?
Answer: Both competitive and non-competitive movements may qualify as “jobs filled,” so long as the movement is one into a different position, rather than simply a movement within the same position. This will necessarily be a fact-based determination. So, for example, a time-driven salary increase from one “step” to the next within the same position would not be a “job filled,” since there was not any movement into a new position. By contrast, if an apprentice completes a certification program and moves into a journeyman position, then such movement would be a “job filled,” since it is a movement from one position to another.
Although the regulations themselves do not define “jobs filled,” the above mentioned FAQ establishes that contractors will have to include all of the following, albeit through a “fact-based determination” of whether the movement was into a different position:
- “Career progression” movements
- Internal-only requisitions
- Externally-posted requisitions
- Basically anything that results in a different job title
Recall the VEVRAA requirement CFR 60-300.5 in which employment [job] openings were defined as all positions except “executive and senior management, those positions that will be filled from within the contractor’s organizations, and positions lasting three days or less.” With OFCCP’s definition of jobs filled in the FAQs, contractors will be counting jobs internally-filled due to reclassifications, demotions, transfers, career progressions, and internal requisitions that were never listed as open in the first place. Contractors are now required to discern between actual job openings that objectively fit the definition laid out in the regulations and general openings for which a Veteran or Individual with a Disability might end up based on tenure or a company reclassification .
As an example, it would be possible for a contractor to find the following numbers when trying to determine the amount of personnel decisions that resulted in a change in position:
- Reclassifications - 6
- Demotions - 2
- Transfers - 4
- “Career progression” movements, non-competitive - 3
- Internal requisitions, competitive - 8
- 3 Regular requisitions, competitive (with 4 openings in each) – 10
- Reassignment, non-competitive - 2
Total job openings = 12; Total jobs filled = 35; Total Applicants hired = 10
Take a look at the totals above. What does that all mean? With regard to evaluations of effective outreach and recruitment efforts, how can we make sense of 12 openings, 35 jobs filled, and 10 applicants hired? Sure, a contractor making a fact-based determination may establish that some of the transfers and career progression movements are not actually “filling a job” and thus not include them, but what contractor has the time and ability to efficiently pull and analyze this information annually? This change will undoubtedly require HRIS system upgrades, additional training, and increased human resource personnel. Requiring these types of determinations goes well outside the burden estimates provided for the data collection analysis sections. If a contractor chooses to go the “easy route” and includes any kind of movement (without a fact-based determination), the result will be meaningless analytics, and will still require changes to tracking and reporting within their systems. Who has the extra time and funding to carry this out?
The good news is that FAQs are sub-regulatory text and are therefore not binding (for OFCCP or contractors). Thus, there is some flexibility for the contractor to define jobs filled as it makes sense for their organization. Regardless of the approach taken, the numbers required by the data collection analysis sections will likely need to be described and defended in audits (and certainly will be compared to the applicant and promotion analytics that were already required from EO 11246). The more an organization is able to get these data points to jive together across reports, the more meaningful the analytics will be and the easier they will be to support.
By Yesenia Avila, M.P.S., HR Analyst; Jeffrey Henderson, M.P.S., HR Analyst; and Amanda Shapiro, M.S., Consultant, DCI Consulting Group