by Joanna Colosimo, Consultant, DCI Consulting Group
For Fiscal Year 2010, there was a 16% increase to the OFCCP’s budget, which represents the largest percentage increase the agency has received on record. This addition to the agency’s budget will allow the OFCCP to increase the number of compliance officers, and subsequently will allow for more compliance evaluations over the next few years, including an increase in more on-site compliance reviews. We are expecting that the number of compliance evaluations could jump from an average of 4,000 to 7,000 per year.
Other things to be on the lookout for from the OFCCP include the interpretation of the changes made on the 2000 regulations and a focus on Individuals with Disabilities and covered Veterans.
Interpreting the Regulatory Changes Made in 2000
This is the first time a Democratic administration has been able to enforce the regulations put forth in 2000, so it will be interesting to see how they interpret items such as “contractors must conduct in-depth analyses for the total employment process…”(41 CFR 60-2.17b) differently from the preceding administration. Other parts of the regulation that will be open to interpretation include:
- 41 CFR 60-2.17b(2) – Personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions) to determine whether there are selection disparities.
The OFCCP may encourage submission of personnel information that includes other personnel activity than applicants, terminations, and promotions, such as transfers or reorganizations.
- 41 CFR 60-2.17b(4) – Selection, recruitment, referral, and other personnel procedures to determine whether they result in disparities in the employment or advancement of minorities or women.
The OFCCP may request or expect information that goes above and beyond the applicant analysis, such as a statistical analysis of a contractor’s selection testing or background check process.
- 41 CFR 60-2.17b(5) – Any other areas that might impact the success of the affirmative action program.
The OFCCP may request analytics that measure other action-oriented activities such as mentoring programs or succession planning initiatives.
- 41 CFR 60-2.17d – Internal audit and reporting system. The contractor must develop and implement an auditing system that periodically measures the effectiveness of its total affirmative action program.
The OFCCP may initiate requests during audits for items such as the most recent review of job descriptions, results of employment referral activities, or documentation related to internal reporting sessions.
In anticipation of additional information requests from the OFCCP during compliance evaluations, contractors should be internally monitoring all personnel actions, and proactively conducting disparity analyses related to all aspects of their selection processes.
Focus on Covered Veterans and Individuals with Disabilities
Another initiative that Patricia Shiu (Director of OFCCP) has made a priority is the announcement of a notice of proposed rule-making (ANPRM), which is tentatively scheduled to be released in December 2010. In particular, Shiu has made the enforcement of affirmative action efforts for Individuals with Disabilities and covered Veterans a top priority of her administration, and has plans to update the regulations for the enforcement of this initiative. This initiative contributes to Secretary Solis’ policy goals of “good jobs for everyone”. The OFCCP recently hosted a series of webinars led by Shiu in which the agency actively sought feedback from the contractor community on how the proposed regulations should be modeled.
The proposed rule will be designed to increase opportunities for covered Veterans with federal contractors and subcontractors, as well as strengthen affirmative action requirements so that federal contractors and subcontractors will be required to increase monitoring of employment practices in order to improve recruitment, hiring, training, and other opportunities for covered Veterans. The agency is starting this rulemaking with an ANPRM in order to seek feedback from the public and to address the following challenges:
- Identifying the appropriate data for use in determining how to set hiring goals for Individuals with Disabilities;
- Assessing employer compliance burdens; and
- Assessing the impact on small businesses.
The OFCCP is urging the public to make comments on this ANPRM, specifically related to the following issues:
- How affirmative action requirements can be strengthened so that employment opportunities for people with disabilities are measurably increased;
- How federal contractors and subcontractor can improve monitoring of their employment practices to identify barriers to the employment of Individuals with Disabilities and improve employment opportunities; and
- What specific employment practices have been verifiably effective in the recruitment of Individuals with Disabilities and covered Veterans.
Even in recent audit situations, many compliance officers are asking contractors to provide detailed listings of their Affirmative Action recruitment efforts for covered Veterans and Individuals with Disabilities, as a means to gather information for contractor best practices. Some contractors and experts in the compliance community are reluctant to solicit disability status pre-offer, in fear of violating certain of the Americans with Disabilities Act (ADA). It is unclear what expectations the OFCCP has for contractors in their future obligations, but it is clear that the OFCCP is seeking feedback in order to develop new regulations with regards to Individuals with Disabilities and covered Veterans.
Furthermore, it appears that the OFCCP is pro-actively requesting Veteran information from contractors during compliance reviews (see sample data request below). Tom Wells, the OFCCP District Director of the Baltimore District Office, recently told the contractor community that the OFCCP is now requesting the submission of VETS-100 and VETS-100A reports with compliance evaluations. However, this request is not currently one of the 11 items listed on the scheduling letter approved by the Office of Management and Budget (OMB). It is unclear whether the OFCCP must receive approval from the OMB in accordance with the Paperwork Reduction Act to require contractors to submit as part of the desk audit.
Recently, DCI has seen the OFCCP ask contractors for a variety of materials during an onsite compliance evaluation, with a focus on Veteran and Disabled outreach. Some materials requested during a compliance evaluation have included:
- A written description of the application process
- Sample job ads
- Samples of all personnel action forms (e.g. application, self-id forms, performance evaluations, disciplinary action, terminations, requests for promotion or transfer, etc.)
- A copy of the employee handbook
- A list of females that have taken maternity-related leave, their current employment status, and a copy of the maternity leave policy
- A copy of the company’s VETS-100 and/or VETS-100A reports
- Documentation demonstrating the company’s outreach and positive recruitment for covered Veterans and Individuals with Disabilities, specifically including:
- The number of partnerships with local Veterans’ service organizations and/or disability referral sources
- Established liaison with the state workforce agency job bank
- The number of job advertisements in the community targeting Veterans and Individuals with Disabilities
- Affirmative action steps taken to attract qualified individuals with disabilities and disabled Veterans
- List of Veteran and Disabled recruitment resources, contacts for each source, and a list of applicants referred from each source, including the applicant’s hiring status
- A list of all applicants who applied and identified themselves as Individuals with Disabilities
- A list of all employees who have self-identified as Individuals with Disabilities and/or covered Veterans
- A list of any accommodations made for the physical and mental limitations of Individuals with Disabilities
- Copies of the last three job descriptions where the physical and mental job qualification requirements were reviewed and updated
- Copies of purchase orders and contracts with the company and/or subcontractors
Currently, the best practice for federal contractors is to continue to be pro-active in their good faith recruitment efforts of Individuals with Disabilities and covered Veterans. Contractors should continue to internally report and document these efforts, and be prepared to provide the OFCCP with detailed information regarding these efforts in the event of a compliance evaluation.