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Biddle Consulting Group Inc.Affirmative Action Plan (AAP)

Consulting and Fulfillment

• Thousands of AAPs developed each year• Audit and compliance assistance• myAAP™ Enterprise software

HR Assessments

• AutoGOJA™ online job analysis system• TVAP™ test validation & analysis program• CritiCall™ pre-employment testing for 911 operators• OPAC™ pre-employment testing for admin professionals• Video Situational Assessments (General and Nursing)

Custom Test Development & Validation

•“High stakes” test development•Validation studies in response/prevention to litigation

EEO Litigation Consulting /Expert Witness Services

• Over 200+ cases in EEO/AA (both plaintiff and defense)• Focus on disparate impact/validation cases

Compensation Analysis• Proactive and litigation/enforcement pay equity studies• COMPare™ compensation analysis software

Publications/Books• EEO Insight™: Leading EEO Compliance Journal• Adverse Impact (3rd ed.) / Compensation (1st ed.)

BCG Institute for Workforce Development

• 8,000+ members• Free webinars, EEO resources/tools

Speaking and Training • Regular speakers on the national speaking circuit

Biddle Consulting Group Institute for Workforce Development▪ BCGi Memberships (free): ~8,000+ members / 15,000 HRCI credits to-date

▪ Online community

▪ Monthly webinars on EEO compliance topics

▪ EEO Insight Journal (e-copy)

▪ BCGi Platinum Membership (paid)

▪ Includes validation/compensation analysis books

▪ EEO Tools including those needed to conduct AI analyses

▪ EEO Insight Journal (e-copy and hardcopy)

▪ Access to the BCGi library of webinars, training materials, and much more …

▪ www.bcginstitute.org

A few housekeeping items:▪ The webinar slides are located in the Handouts section of GoToWebinar. They

can be downloaded from the Control Panel. If you are having trouble

downloading them please let us know at bcgi@biddle.com

▪ This webinar, along with all of our previously recorded webinars, is accessible to

BCGi Platinum Members on our website.

▪ Our next AAP Boot Camp will be in January 25th and 26th – spots are already

filling up fast so register today!

Biddle Consulting Group Institute for Workforce Development

2018 SummitThe More Things Change, the More They Stay the Same: Understanding How the Core

Fundamentals of AAP Development Drive Diversity

Early bird price until January 31st!

▪ When: April 5-6, 2018

▪ Where: San Francisco, CA – Charles Schwab Event Center

▪ Benefits of Attending:

Interested in presenting? We are accepting applications until December 15th, learn more here!

• HRCI & SHRM credits• Learn the basics of AAP• Learn from other

companies/contractors on their effective efforts to address the requirements of the EO 11246, VEVRAA, Section 503

• Understanding the Core Fundamentals of AAP

• Understanding Diversity o Valuing Diversityo Evaluating Diversityo Metricso Best Practices

• Networking with other HR and AA professionals

• Ask our panel of experts about your company-specific questions/concerns

Contact InformationBiddle Consulting Group, Inc. (BCG)

193 Blue Ravine, Suite 270Folsom, CA 95630

916.294.4250www.biddle.com

www.bcginstitute.org

Phil AkroydConsultant II

pakroyd@biddle.comext. 135

Nina Le-TseEEO/AA Practice Manager

nle@biddle.comext. 128

Today’s Agenda

• Frequently Asked Questions

o Questions from Attendees

o General Questions

• Things to Keep In Mind

• Q&A

Questions from Attendees

Questions from AttendeesQ: What are the requirement for Public Higher Education

Providers?

A: There are no differences in the requirements between private federal

contractors and public higher education providers, for AAP purposes. You

are required to develop the following AAP(s) if the requirement criteria are

met:

• AAP for Minorities & Women (E.O. 11246)

o 50 or more employees and $50,000 or more in contract revenue during a

12 month period

• AAP for Disabled (Sec. 503 of the Rehabilitation Act)

o 50 or more employees and $50,000 or more

• AAP for Protected Veterans (VEVRAA)

o 50 or more employees and $150,000 or more

Questions from Attendees

Q: Which law/laws require an AAP/gathering of applicant information?

What information are Higher ED providers required to collect?

A: The regulations/laws do not specifically state that contractors/employers are

required to track the applicant data. However, they do mentioned analyzing your

personnel activities.

• EO 11246 [CFR 60-2.17 b(2)]

o Evaluate personnel activity (applicant flow, hires, terminations, promotions, and

other personnel actions) to determine whether there are selection disparities

• Title VII of 1964/1991 Civil Rights Act

o An unlawful employment practice based on disparate impact is established under

this title only if a complaining party demonstrates that a respondent uses a

particular employment practice that causes a disparate impact . . .

▪ Translation: Employers must be able to identify who took/passed/failed each step within a selection process

Questions from Attendees

Q: Which law/laws require an AAP/gathering of applicant information?

What information are Higher ED providers required to collect?

Continued.

A: NOT a law, but a guideline: Uniform Guideline Employee Selection Procedure

(UGESP)

• “The use of any selection procedure which has an adverse impact on the hiring,

promotion, or other employment or membership opportunities of members of

any race, sex, or ethnic group will be considered to be discriminatory and

inconsistent with these guidelines, unless the procedure has been validated in

accordance with these guidelines…”

o http://www.uniformguidelines.com/uniformguidelines.html

Questions from Attendees

Q: How does the OFCCP respond when applicants do not provide

applicant referral sources, protected veteran status, and/or

disability status, and thus assessment of outreach efforts cannot

be effectively measured?

A: The OFCCP was more lenient the first couple years of the implementation

of the regulations. Not so much now.

• Self IDs are voluntary

o Document all good faith efforts in collecting the data

• Tracking outreach/recruitment

Questions from Attendees

Q: How does the OFCCP respond when applicants do not provide

applicant referral source, protected veteran status, and/or disability

status and thus assessment of outreach efforts cannot be effectively

measured? Continued…

A: It’s not a requirement, but follow the OFFCP’s four Criteria for Evaluation

to help evaluate your outreach and recruitment activities:1. Did the activity attract qualified applicants with disabilities and/or protected

veterans?

2. Did the activity result in the hiring of qualified individuals with disabilities and/or protected veterans?

3. Did the activity expand Contractor’s outreach to individuals with disabilities and/or protected veterans in the community?

4. Did the activity increase Contractor’s ability to include individuals with disabilities and/or protected veterans in its workforce?

Questions from Attendees

Q: Once AAP results are in, how far of a dive should an organization go (with limited time & resources) to research the how and why’s of A.I. hits and no/low goals progress job groups? Is there a threshold, outside of “any difference,” that is recommended for internal data dives?

A: “Any Difference” rule is very aggressive in determining goals. There are three others rule that are acceptable by the OFCCP: Whole, 80% ,and Standard Deviation

• Pinpoint the cause of any issues

o Do we need to make adjustments to the data/information that goes into the AAP?

• Prioritize

o You do not need to solve everything at once

o Which areas of concern need the most attention

o High volume/high turnover

Questions from AttendeesQ: How deep of a dive can an employer expect from the OFCCP with respect to frequent flier (FF) job title hires? Also, since most FF titles are across the organization, should employer time be focused on high frequency depts among FF titles, or is OFCCP selection of FF hire files typically random?

A: OFCCP likes to focus on entry-level/high volume turnover jobs, blue collar jobs

• Why? – applicant data is still the biggest area of deficiency

• Answer = BIG Data!

o Those positions tend to result in high numbers of applicants/hires

o Analyzing high volumes of data increases the likelihood of statistically significant results

• Adverse impact in hiring continues to be one of OFCCP’s highest priority (with the most potential for financial damages)

• The OFCCP audits are by location unless you are developing a functional AAP (need approval from the OFCCP).

Questions from Attendees

Q: If time and resources are extremely limited, which single

outreach source for PV and IWD (each) is the best use of employer

outreach time and energy?

A: There is really no single outreach source for all employers

• YOUR employees

• Local outreach

• Utilize third party recruitment (e.g., direct employers, Equest, etc.)

General Questions

General Questions

Q: I’m a new Federal Contractor. How long do I have to put

my AAP together?

A: AAPs must be developed within 120 days from the commencement

of a contract and must be updated annually

General Questions

Q: How should home office/field employees be handled?

A: Include them in the AAP of their direct supervisor. If their

supervisor is also in a home office or works in the field, continue up

the chain until you reach an AAP location.

General Questions

Q: We have employees in locations with fewer than 50

employees. How should we handle them?

A: You have three choices:

1. Include them in an AAP for just that location

2. Include them in the AAP that covers the personnel function that

supports the establishment

3. Include them in the AAP of the official to whom they report

General Questions

Q: As a Federal contractor, what is the requirement in listing job

openings?

A: At a minimum, ALL job openings (including all union jobs) must be listed

with the local and state employment agencies with the three exceptions listed

below:

• Executive and top management positions

• Positions that will be filled internally only

• Positions lasting three days or less

General Questions

Q: What is the best way of evaluating the effectiveness of outreach and

positive recruitment?

A: Track referral sources from applicants and positive outreach activities as you go to

help better evaluate your outreach and recruitment efforts. It’s not a requirement,

but follow the OFFCP’s Criteria for Evaluation to help evaluate your outreach and

recruitment activities.

Criteria for Evaluation:▪ Did the activity attract qualified applicants with disabilities and/or protected veterans?▪ Did the activity result in the hiring of qualified individuals with disabilities and/or protected

veterans?▪ Did the activity expand Contractor’s outreach to individuals with disabilities and/or protected

veterans in the community?▪ Did the activity increase Contractor’s ability to include individuals with disabilities and/or

protected veterans in its workforce?

General Questions

Q: Can I exclude applicants who declined offer?

A: Technically, according to “internet applicant definition,” applicants who declined

offer should be included.

• Individual Submits Expression of Interest.

• Contractor Considers Individual for a Particular Position.

• Individual Possesses Basic Qualifications.

• Individual Does NOT Self-Eliminate Before Offer is Made.

• However, you can also argue that they withdrew from the selection process when

they declined the offer.

General Questions

Q: Adverse impact exists in the hiring analysis by job group. What is our

next step?

A: Analyses must reflect reality!

• Conduct analysis (adverse impact) by job title.

o Only if the selection process is distinct and separate for each job title within the impacted job group.

• Conduct step analysis (documentation/disposition code is the key):

o Title VII of 1964/1991 Civil Rights Act

▪ An unlawful employment practice based on disparate impact is established under this title only if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact . . .

▪ Translation: Employers must be able to identify who took/passed/failed each step within a selection process.

General Questions

Q: For adverse impact, should we only use the group with the highest selection

rate only if the said group is at least two (2) percent of the overall applicant

pool/workforce?

A: Correct, the group with the highest selection rate must be at least 2% of the applicant

pool.

• CFR 60-3.15A(2)(a) and UGESP Q&A # 16: “Q16. Should adverse impact

determinations be made for all groups regardless of their size?”

A. No. Section 15A(2) calls for annual adverse impact determinations to be made for each group which

constitutes either 2% or more of the total labor force in the relevant labor area, or 2% of more of the applicable

workforce. Thus, impact determinations should be made for any employment decision for each group which constitutes

2% or more of the labor force in the relevant labor area. For hiring, such determination should also be made for groups

which constitute more than 2% of the applicants; and for promotions, determinations should also be made for those

groups which constitute at least 2% of the user's workforce.”

General Questions

Q: I have Goals, what now?

A: Goals are not the “Real Problem”, it is the outreach, recruitment, and action

oriented programs in place to meet these goals that will be questioned.

• Serve reasonably attainable targets that can be reached by applying

every good faith effort in outreach and recruitment.

• Lack of good effort= what happens?

• These are NOT hiring ‘quotas’ by any means!

• Be aware of the results for disparity analyses and not just goals and

outreach efforts

General QuestionsQ: What Should Be Our General Objectives?

A: Understand OFCCP’s priorities. Where do they tend to focus their attention during compliance reviews?

• Pay attention to the right things

o Give attention to the policies, programs, and procedures that may cause the most serious problems during audits

o Do NOT only focus on one or two areas in a vacuum (e.g. outreach and adding to headcount)

o If you consistently have the same goals every year, try to identify the root cause

▪ Lack of applicants

▪ Work environment

▪ Selection procedures

▪ Additional problems

Things to Keep in Mind(Best Practices Ideas)

Keep in Mind:Discrimination in Hiring is still OFCCP’s “bread and butter” with the potential of getting the most financial remedies

• Ensure that the data is correct before submitting for an audit

• Ensure that you have conducted the appropriate analysis on the data

before submitting for an audit

• Ensure that you are collecting the appropriate information and

documentation to be able to tell the “story” behind the data (e.g.,

disposition codes, interview notes, disposition dates, etc.)

Discrimination in Compensation is becoming a more common OFCCP finding, resulting in financial settlements

• Analyze your data before submission for an audit

• Be more pro-active in analyzing compensation data

o This will allow for compensation adjustments, if needed, outside an audit

Keep in Mind:Proof of Job Listing is no Longer Enough

• Should be able to demonstrate that Outreach and Recruitment are

being evaluated for their effectiveness

• “Active connection” with the listing agencies and their representatives

should be established

Train executives, managers, supervisors and talent acquisition team on AAP obligations and results

Send out vendor notification once a year

• Let your vendors and those you do business with you know that your

are a federal contractor and as such, they might be subject to the

requirements of the EO

Keep in Mind:The EO Clause must be included in your contracts, PO’s, invoices

The Policy Statement must indicate full support from the company’s top executive

Self ID

• Collect gender, race, vet and disability (IWD) statuses from employees

and applicants

o Utilize self-ID form, approved by the OMB, to collect IWD status

o Send a self-ID reminder at least once during a five (5) year interval to

solicit disability status of all employees

• Inquire if reasonable accommodation is needed

Keep Track of Requests for Accommodation

• Whether approved or not (reason why it was not approved)

Questions?