OFCCP COMPLIANCE: TRENDS AND BEST PRACTICES Mickey Silberman, Esq. Jackson Lewis, LLP 950 17 th Street, Suite 2600 Denver, CO 80202 (303) 225-2400 [email protected]Jennifer Seda, Esq. Jackson Lewis, LLP 950 17 th Street, Suite 2600 Denver, CO 80202 (303) 225-2411 [email protected]ERE WEBINAR June 2, 2010
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THE MATERIALS CONTAINED IN THIS PRESENTATION WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE PARTICIPANTS’ OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS LLP. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE.
Jackson Lewis LLP is dedicated to representing management exclusively in workplace law and related litigation. With 45 offices nationwide, and more than 600 attorneys, the firm has a national perspective and sensitivity to the nuances of regional business environments.
Guided by the principle that a positive work environment results in enhanced morale and increased productivity, the firm devotes a significant portion of its practice to management education and preventive programs. This approach helps limit exposure to grievances, charges and lawsuits.
Jennifer is an Associate in the firm’s Affirmative Action Practice Group in the firm’s Denver, Colorado office. Jennifer represents management exclusively in all areas of employment law and specializes in EEO, affirmative action and applicant tracking.
Jennifer defends approximately 60 OFCCP audits throughout the country and prepares approximately 300 affirmative action plans each year for employers. Jennifer also spends a significant amount of time counseling employers about the strategic development and implementation of applicant tracking systems.
Back to the Future: Good Faith Efforts with a Twist
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During the past several years, EEO enforcement agencies (EEOC and OFCCP) have focused little on traditional affirmative action outreach and recruitment efforts or “Good Faith Efforts” (“GFEs”)
But with the change in OFCCP leadership, the Agency has returned to “GFEs” but with a new twist
• Traditionally, “GFEs” concentrated on minorities and females
• Instead, the current “GFE” focus is on veterans and the disabled
Back to the Future: “GFEs” with a Twist (continued)
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Increasingly during audits and investigations, the enforcement agencies are intently scrutinizing both veteran and disabled outreach efforts and results
The agencies often will demand detailed information on how many applicants were referred by veteran and disabled recruitment sources and how many were hired
This new, more numbers-oriented approach to “GFEs” places the obligation on employers not only to use veteran and disabled recruitment sources, but also to monitor the effectiveness of those sources
Back to the Future: “GFEs” with a Twist (continued)
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Similarly, the enforcement agencies are intently scrutinizing the effectiveness of minority and female diversity outreach efforts
The agencies often will demand detailed information on how many applicants were referred by minority and female diversity recruitment sources and how many were hired
Employers should be able to evaluate the effectiveness of these sources and, if they are not effective, should consider implementing new sources
Back to the Future: “GFEs” with a Twist (continued)
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In late 2009, the OFCCP announced plans to develop affirmative action statistical analyses for veterans and disabled similar to the statistical analyses for minorities and females
The Agency is currently seeking input regarding GFE best practices and how to make veterans and disabled affirmative action obligations more successful
While the Agency continues to spend its time and gather considerable money from applicant-to-hire adverse impact, recent developments in this area are catching employers unaware, including the Agency’s focus on:
Reverse” adverse impact; and,
Sub-minority adverse impact.
Bottom Line: The EEOC and OFCCP are “going where the numbers take them.” The agencies are no longer focusing on just minorities and females, but rather investigate any alleged race and/or gender discrimination.
With the increase in technology, the agencies and employers are able to analyze large data sets
As employers continue to implement applicant tracking systems, utilize HRIS systems and third-party vendors for pre-employment testing, drug screens and background checks, etc., large data sets are available for analysis
At the same time, new software allows the agencies and employers to analyze large sets of data at the click of a button
Social networking sites like Facebook, Twitter, LinkedIn, etc. contain personal and professional information on millions of potential job candidates
Facebook has over 400 million active users and is the second most heavily trafficked website in the world (behind Google and ahead of Yahoo). The average user age is 38.
MySpace has over 200 million registered users (average age is 31).
Social Network Recruiting: Internet Applicant Rule
Internet Applicant Rule is somewhat antiquated
Proposed in October 2005; effective in February 2006
OFCCP did not contemplate social networking sites in coming up with the rule; not addressed in FAQs
Elements of the Internet Applicant Rule 1. Individual submits an expression of interest
2. Employer “considers” the individual for a particular position
3. Individual possesses the basic qualifications
4. Individual does not “self-select out” of the process
Tip: Check to see if the individual is interested in the position, if not, they are not an “applicant.”
If the candidate meets these elements, he/she is an “applicant” who must be (i) included on the applicant flow log, (ii) included in adverse impact analyses and (iii) whose documents must be maintained.
Social Network Recruiting: Record Keeping Obligations
Sourcing: Not Considered for a Particular Position
No record keeping obligation
Recruiting: Considered for a Particular Position
Maintain a record with the following information: Position for which search was made
Search criteria used
Date of the search
Resumes of job seekers who met the basic qualifications for the position who were considered by the employer (and who were interested in the position)
* America’s Job Exchange or Direct Employers can assist in posting with the state. Although the OFCCP has challenged the use of these organizations, they are typically accepted in audits