Importantly, in 2012, OFCCP officials discussed enforcement of contractors’ steering practices with respect to disproportionately placing protected groups of applicants or employees into specific jobs. It was subsequently not surprising that Directive 307 (re-numbered on September 16, 2013 as Directive 2013-03) encouraged compliance officers to look at trends that may result in the practice of systemically steering employees who are members of a protected class toward lower paying jobs. Moreover, the recently revised Federal Contract Compliance Manual (FCCM), in the context of corporate management compliance evaluations (CMCEs), indicates that during the onsite review, compliance officers should review personnel files and conduct interviews, to ensure any concentrated race/gender groups in certain positions is not a result of "steering" those groups before or after hiring.
DCI has noted that in recent audits, OFCCP compliance officers are requesting comprehensive items such as several years’ worth of applicant flow logs, as well as exhaustive, multi-factor compensation variables. Applicant flow data may be requested even if a statistical indicator is not flagged in the audit submission documents. Furthermore, compensation data includes items such as starting salary and related previous experience data, which are often difficult data points for contractors to uncover. For example, most contractors do not have years of related previous experience readily available in their HRIS system for the entire workforce. In some circumstances, contractors are being asked to obtain paper copies of applications and code prior related experience, for example, even if prior related experience is irrelevant to compensation in some groups.
OFCCP compliance officers are also examining shift assignments or job openings that are related to any positions available, to determine if steering could be a problem. Contractors should avoid pitfalls of posting jobs that include “any position”. Using defined requisition systems where applicants choose the jobs and shifts to apply to may help with avoiding potential steering issues.
by David Morgan, M.S., Senior Consultant and Joanna Colosimo, M.A., Senior Consultant, DCI Consulting Group
