Increasing Your Chances of Closing an OFCCP Audit

Increasing Your Chances of Closing an OFCCP Audit
by Marife Ramos, Sr. Consultant, Biddle Consulting Group

Winning an OFCCP audit is not as hard as most contractors think. In most cases, a contractor can control the outcome of an OFCCP review. The employer’s goal should be to end an OFCCP audit at the Desk Audit phase. Consider the following before submitting your AAP and data to the OFCCP:

1) Know your auditor. Give him/her a call upon receipt of the letter. Introduce yourself. Ensure him/her that you intend to extend full cooperation during the audit.
2) Review all the data and reports for accuracy and completeness before submittal. Perform data refinements based on the definition of applicants. Once data and reports are already submitted, it becomes more difficult to make necessary revisions. Any revisions to the already submitted data and reports can cast doubt on your record-keeping policies and procedures.
3) Analyze the data before submittal. The OFCCP’s main focus during an audit is on adverse impact of the personnel transactions and compensation disparities. Know what the OFCCP may find ahead of time with the data you will provide.
4) Document and emphasize all Good Faith Efforts. This is your opportunity to “put your best foot forward.” Let the OFCCP know all the EEO Good Things your organization have done and is planning to do.
5) Prepare a professional and professional-looking AAP. Remember that the AAP is supposed to be a living-breathing document for your organization. Show that you are very familiar of the contents of the AAP and are utilizing the results of the analyses in planning for future employment opportunities.
6) Perform “mock audits” on a more regular basis. Analyze your data on a quarterly or semi-annual basis. This will provide good information and assist in employment planning and management training throughout the AAP year.
7) Document all conversations with your compliance officer. Your records might help you in future negotiations with the agency.
8) Do not miss your submission deadline. Remember, you have only 30 days to respond to the OFCCP. So get to work as soon as you receive the audit letter. As much as possible, submit the AAP on time. It demonstrates your willingness to cooperate and compliance with the requirements. If an extension was requested and is granted by the OFCCP, do not miss the extension deadline.
9) Get HELP! When you doubt your ability to respond accurately to an audit, get the assistance of reputable AAP experts/consultants. This will prove to be a lesser cost to pay than settlements from Conciliation Agreements or worse, losing the federal contract.

Self Identification Requirements for Applicants with Disabilities

Self Identification Requirements for Applicants with Disabilities
and/or Veterans
by Marife Ramos, Sr. Consultant, Biddle Consulting Group

As a part of their record-keeping requirements, federal contractors are required to make good faith efforts to solicit the race and gender information of their applicants (41 CFR 60-1.12). Voluntary self-identification forms to solicit race and gender information can be provided to job seekers at any stage of the application process. However, the regulations only require that the invitation to self-identify be extended when a job seeker becomes an applicant.

It is a different story however, when it comes to the solicitation of the applicants’ disability and/or veteran status(es). Contractors may not invite applicants to self-identify as disabled and/or veterans before a job is offered. Invitations for self- identifications can be made by contractors only at the post-offer stage but before employment. Also, it should be noted that the regulations at 41 CFR 60-741.42 listed only two exceptions to this requirement.

What does this mean to contractors? Contractors may not solicit disability or veteran status from applicants in general. Self-id invitations should be made after a job offer is made but NOT after the applicant becomes an employee. It is therefore, recommended that contractors should develop two self-identification forms for applicants: 1) to solicit gender and race for applicants in general; and 2) to solicit disability and veteran status after a job offer is made but before official employment occurs (race and gender information can again be solicited at this stage). It is also recommended that contractors should establish a well-defined system that can remind hiring personnel to provide the self-id form to an applicant who was offered a job but before such applicant becomes officially an employee (for example, include the self-id form with the I-9 or W-4 forms to be filled by the prospective employee).

The Most Common Mistake in AAP Audit Preparation

The Most Common Mistake in AAP Audit Preparation
by Nina Le-Tse, Consultant, Biddle Consulting Group

Biddle Consulting Group has worked with a high volume of Federal contractors under OFCCP audit. Having worked with contractors in many industries and ranging in size from fifty employees to over one hundred thousand employees within the various OFCCP regions, we consistently encounter recordkeeping as the one common issue that easily results in the highest number of conciliation agreements. Many people are not aware of the fact that OFCCP has access to all of your transaction (i.e., Applicants, Hires, Promotions, and Terminations) data in the event of an audit. The OFCCP will use their internal systems to conduct adverse impact analyses based on the transaction data that was provided to determine if there is a substantial difference in selection rates between men and women and/or whites and minorities. If there is statistical significance in the summary data provided, OFCCP will request the raw data that was compiled for the desk audit submittal. Once they have the detailed data, it is much more difficult to go back and “fix” flawed files. Resubmitting data repeatedly only results in more suspicion on the part of the OFCCP and could likely end up in an on-site visit.
Conducting adverse impact analyses is not just about the result of the statistical test; it’s about having the right data. If there is adverse impact in the initial analysis of hires data being compared to applicants, there are often appropriate refinements that you can make to the data. For example:
· Only include applicants who are associated with hires in the plan. If you had an applicant pool tied to a job requisition that closed before making a hire then those applicants do not need to be included in your submittal.
· Applicants may occur outside the 12-month transaction period if they are linked to hires that occurred within the appropriate 12-month period
· Applicants do not belong in the file if they applied for a position after the last hire in the 12-month plan period. If you have a calendar year plan where your last hire was November 30th, then you should not have any applicant data in December as part of your current AAP. They may be linked to a hire in your future AAP but not the current one.
· Applicants should only be listed once unless they applied for and were considered for more than one job.
· A hired candidate’s race and gender should be reconciled against the original applicant file
· Remember that you must keep all applicant records for two years whether they are in your AAP or not.
The OFCCP is also focused on low applicant-to-hire ratios and high percentages of unknown race and gender. Be sure to track all considered applicants for the analyzed hires and invite all applicants to self identify their race and gender.
While the updated “Definition of an Applicant” should be applied at the onset, you may further refine the data by reviewing it to be sure that each of the four requirements are met.
Document all your selection process is one of the key elements to good recordkeeping. If you have multiple employees tracking the applicant flow log, make sure that they follow the same protocols. Keep all applicant records including those used to develop your affirmative action plan(s) for the minimum of two years (or one year if you qualify for the exemption).

Introducing the 2008 Biddle Consulting Group/Jackson Lewis Seminar Series

Introducing:
The 2008 Biddle Consulting Group, Inc. and Jackson Lewis LLP Seminar Series

EMPLOYERS CAUGHT IN THE PERFECT STORM: THE CONVERGENCE OF THE OFCCP’S AND EEOC’S SYSTEMIC DISCRIMINATION INITIATIVES

Agenda:

1. Understanding Federal EEO Enforcement Agency Trends. An Update on the Current Focus of the EEOC and OFCCP

2. How to Prepare for an OFCCP Audit Under the OFCCP’s New Rules: Selection Stage Analysis, Technical Compliance and Other Liability Hotspots

3. Update on the Not so New Internet Applicant Rule. How the OFCCP Can Use the Internet Applicant Regulations As A Tool for Auditing and Identifying Discrimination

4. Leveraging Affirmative Action Goals Into Your Diversity Initiatives? Lawful Pathways to Diversity

5. I Think My Test is Valid . . . Why Do You Ask? Defending Your Testing Practices in Title VII and OFCCP Enforcement Settings

6. Shoring Up for the Coming Tidal Wave of Compensation Claims? Navigating Through Legal and Statistical Systemic Compensation Issues

Locations and Dates:

Boston - June 3rd, 2008, Marriott Boston Copley Place, 110 Huntington Avenue, Boston, MA, 02116, (617) 236-5800

Orlando - June 5th, 2008, Marriott Orlando Downtown, 400 W. Livingston St. Orlando, FL 32801
(407-843-6664)

Chicago - September 22nd, 2008, Chicago Marriott Downtown, 540 North Michigan Avenue, Chicago, IL 60611 (312) 836-0100 / Web Address: www.chicagomarriottdowntown.com

Dallas - September 24th, 2008, Marriott Dallas/Fort Worth Airport North, 8440 Freeport Parkway, Irving, TX, 75063, (972) 929-8800

San Francisco - November 4th, 2008, JW Marriott San Francisco, 500 Post Street
San Francisco, CA 94102 (415-771-8600)

Los Angeles – November 18th 2008, Los Angeles Downtown Marriott, 333 S. Figueroa St. Los Angeles, CA 90071 (213 617-6038)

Costs for attending:
The fee is $495 per attendee with discounts offered for multiple attendees.
Call 1-916-294-4250 x109 to reserve your seat today.
Hotel reservations must be made by calling the hotel directly at the number(s) listed above.