Thursday, February 21, 2008

OFCCP Releases Second Fiscal Year 2008 Scheduling List

From OFCCP Home Page:

Second FY 2008 Scheduling List Released

A second list of supply and service contractor establishments will be available to OFCCP regional offices beginning on March 10, 2008 for scheduling of compliance evaluations during this scheduling cycle (currently, October 1, 2007 through September 30, 2008). The first release for FY 2008 was made available to the regional offices for scheduling on October 1, 2007.

This release includes approximately 5000 facilities that have either self-identified as being an establishment of a Federal contractor, or have been identified as such by OFCCP. OFCCP generated this list through its Federal Contractor Selection System (FCSS) using multiple information sources and analytical procedures to select contractors for evaluation, including a mathematical model that ranks Federal contractor establishments based on an indicator of potential workplace discrimination. The list also includes a number of establishments identified through external Federal contract databases as part of OFCCP's Contracts First Initiative.

OFCCP Selects Dr. Javaid Kaiser To Be Head Statistician

As reported by Bill Truesdell in the Management-Advantage Newsletter:

Effective February 19, 2008, Dr. Javaid Kaiser will take over as the Director of Statistical Analysis at the Office of Federal Contract Compliance Programs (OFCCP). He will fill the vacancy created when Dr. Michael Sinclair left the agency in October last year. Dr. Kaiser comes to OFCCP from the position as Director of the Office of Applied Studies at the Substance Abuse and Mental Health Services Administration. He has also been a researcher at Virginia Polytechnic Institute and East Carolina University among others.

By filling this vacancy, Mr. Charles James, National Director of OFCCP seems to be saying that his agency's focus on systemic discrimination issues will continue unabated.

OFCCP Stepping Up Efforts To Analyze Appropriate Data

By Danielle Yokoi, Analyst, Biddle Consulting Group

The Office of Federal Contract and Compliance Programs (OFCCP) recently conducted a webinar to update the Federal contracting community on their operations. During the update OFCCP announced they are conducting 4,000-5,000 desk audits per year. Approximately 10-15% of the audits that ended in conciliation agreement and 70% of the conciliation agreements resulted in some type of financial penalty. Federal contractors should be aware the OFCCP is concentrating on finding statistically significant differences between comparison groups (i.e. Males v. Females), particularly in the hiring process.

In regards to analyzing the hiring process, Biddle Consulting Group participated in an audit recently where OFCCP did something that we rarely see. They utilized the Final Rule on "Obligation To Solicit Race and Gender Data for Agency Enforcement Purposes" (Also known as the Definition of an Internet Applicant) to refine the data themselves.

With the revised definition of the Internet Applicant now in full effect, contractors are expected to apply the rule to their applicant data at all times, and especially in the event of an audit. During a recent audit, OFCCP found potential adverse impact in a job group where the selection rate of hires differed greatly from the applicant pool. OFCCP requested to come on-site and review applications for these positions. The compliance officer then contacted applicants directly in order to revise the data based on the four criteria from the definition of an internet applicant to the contractors’ applicant log. This resulted in a smaller, more appropriate applicant log. Be aware that not every region of the OFFCP may take this approach, and it should be mandatory to ensure your data is accurate before submittal to OFCCP during an audit, but it was nice to see a compliance officer making the effort to analyze the most appropriate data.

Monday, February 18, 2008

Reviewing the updated Vets requirements

By Christine Anthony, Analyst, Biddle Consulting Group

OFCCP issued a Final Rule (Code of Federal Regulations [CFR] § 60-300) effective September 7, 2007 which addressed the Affirmative Action Plan (AAP) requirements and mandatory listing requirements for veterans.
The Jobs for Veterans Act (JVA) increased the threshold of coverage of a single contract from $25,000 to $100,000 or more for contracts that are owned or modified on or after December 1, 2003. The AAP content for contracts under the new threshold must contain the following: policy statement, review of personnel process, reasonable accommodation to physical and mental limitations, policy to prevent harassment, external dissemination of policy, internal dissemination policy, audit and reporting system, responsibility for implementation, and training policy. These are the same requirements under CFR § 60-250.
The classification of veterans has changed. The current classifications are: Armed Forces Service Medical Recipient, Disabled Veterans (service connected), Recently Separated Veterans (past 3 years), and Other Protected Veterans. The classification of Vietnam Era Veteran has been elimination. However, it is probable that those falling under this classification will fit within the parameters of at least one of the new classifications. The Newly Separated Veterans has been redefined to include veterans who have separated from service within the past three years rather than the past year as the previous definition stated. Finally, the Disabled Veterans category has been expanded to include all veterans with a service-related disability, regardless of the disability rating.
Several contractors may find themselves with the need to comply with both sections of the CFR. In that case, the contractor can choose to create two AAPs or they may develop a single AAP following CFR § 60-300. Please see Appendix B of the Final Rule for further guidance on how to solicit veteran status.
Changes have also been made to the mandatory job listing requirements. Contractors falling within the contract thresholds must list all job openings with the state workforce agency job bank as well as a local employment service delivery system. Contractors must list in the notification where the job opening is located. The job listing requirements applies to all employment openings with the exception of temporary position of three days or less, positions filled internally, or executive/senior level management positions. It is important for contractors to know that they are responsible for all third party recruitment agencies efforts to comply with the regulations.

Tuesday, February 12, 2008

Defining new OFCCP Barriers Analysis

By Fe Ramos, Sr. Consultant, Biddle Consulting Group

Barriers Analysis

Is it possible that the OFCCP has started to conduct a “barriers analysis?” They can under the law. 41 CFR Part 60-1 ‘Obligation to Solicit Race and Gender Data for Agency Enforcement Purposes; Final Rule,’ released on October 7, 2005 (Use of Labor Force Statistics and Census Data) states: “OFCCP intends to use such data during compliance reviews to determine whether basic qualifications have an adverse impact on the basis of race, ethnicity, or gender. OFCCP does not agree that it should rely exclusively on availability data compiled by contractors…” [emphasis added].

During a recent OFCCP audit, we carefully reviewed the data and the reports contained in the client’s AAP before submittal to the OFCCP (as this has always been a part of Biddle Consulting Group protocol.) Adverse impact analyses of the transaction data was also conducted prior to submittal and the results also did not reveal any potential problem areas. In short, the AAP was considered compliant and without problems so it was expected to pass the compliance evaluation without issue. Needless to say, it came as a surprise when the OFCCP Compliance Officer requested the availability percentages by ethnicity/race for two (2) particular job groups. In light of this additional request, a further review of the data was again conducted and still, no apparent problem with the data was found.

A “barriers analysis,” as the term implies, is a test to determine if the comparison pool (e.g., applicant pool) is composed of what is “reasonably expected.” It determines if there is a “barrier” that prevents reasonably expected females and minorities from applying in an organization. The OFCCP can conduct this type analysis if it has reason to believe that the applicant pool might not be representative of the availability. Statistically significant disparities (i.e., adverse impact) in the hiring rates of females vs. males and/or minorities vs. non-minorities (when hires are compared to applicants) do not have to be present for the OFCCP to conduct a barriers analysis. A suspicion that the applicant pool could be “tainted” is enough.

How to conduct the analysis: The applicant data is compared to availability percentages (e.g., Census data from the organization’s local recruitment areas). If statistically significant disparities are found, it could be argued that the applicant data is “suspect” and therefore, is not an appropriate benchmark to which hires should be compared. This said, the hires data could then be compared to the availability data. If statistically significant disparities are found, adverse impact can be inferred.