Tues. S4-W2 (2)
8/2/16
Legal Disclaimer It’s all about Applicant Data: Strategies for OFCCP Audits and Internal Self-Audits Kevin Fitzpatrick, PepsiCo Amy Lund, First National Bank Laura Mitchell, Jackson Lewis Jennifer Seda, Jackson Lewis
About Jennifer Seda JENNIFER L. SEDA is a Principal in the Jackson Lewis Affirmative Action Practice Group in the firm’s Denver, Colorado office. Jen defends approximately 100 OFCCP audits throughout the country each year. In addition, Jen oversees the preparation of approximately 500 AAPs each year. Jen also partners with our Ph.D.- and Master’s-level statisticians to conduct pay equity analyses proactively and in response to complaints and EEOC and OFCCP investigations and in litigation. Jen also specializes in assisting employers develop and implement strategic and compliant applicant tracking and HRIS systems. Jen is the Co-Chair of the Colorado Industry Liaison Group (ILG), Chair of the SWARM ILG 2014 Conference. Recognized by Chambers USA and SuperLawyers, Jen is also a member of the DirectEmployers Compliance Advisory Board, Center for Corporate Equality’s Compensation Technical Advisory Committee, Author and Editor for EEO Insight, and volunteers for Hire Heroes.
About Kevin Fitzpatrick KEVIN FITZPATRICK is the Sr. Compliance Manager for PepsiCo based in Plano, Texas. Kevin has been with PepsiCo for 18 years in a variety of roles. PepsiCo prepares over 600 Affirmative Action Plans for all divisions (Pepsi Beverages, Frito Lay, Tropicana, Gatorade and Quaker Foods) and manages OFCCP Compliance Reviews for all PepsiCo divisions. Kevin oversees the dozens of OFCCP audits currently under review where he regularly receives notices of compliance in these efforts. This work involves preparing the AAPs, including presenting the applicant flow data in the best possible light for OFCCP review, for submission. Kevin is also a member of the North Texas ILG.
The materials contained in this presentation were prepared in part by the law firm of Jackson Lewis P.C. for the participants’ reference in connection with education seminars presented by Jackson Lewis P.C attorneys. Attendees should consult with counsel before taking any actions and should not consider these materials or discussions about these materials to be legal or other advice.
About Laura Mitchell LAURA A. MITCHELL is a Principal in the Denver, Colorado office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action, EEO and government contractor compliance. Laura represents employers in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Laura also spends a good deal of her time counseling government contractors on their ever-expanding compliance obligations.
About Amy Lund AMY LUND is the EEO/Affirmative Action and Diversity Director at First National Bank, where for nine years, she has managed the EEO/Affirmative Action compliance and diversity functions for the largest privately held bank in the United States. She develops, executes and monitors 20+ affirmative action plans and leads the development and deployment of proactive strategies, policies and programs to achieve a diverse, discrimination-free workplace and to reinforce bank values and business objectives through implementation of EEO/AA, diversity and ethics training programs, targeted communications, employee relations, talent acquisition and talent management initiatives. Amy serves as the: • Chair of Midlands ILG; • National ILG board member, where she is Co-Chair of the Strategic Planning Committee; • Alliance Manager for the U.S. Business Leadership Network; and, • Founding member of the EEAC Future Leaders Network Group. Amy served as Co-Chair of the Program Committee for the 2014 SWARM ILG Conference and serves on the Program Committee for the 2017 ILG National Conference. Amy is also a former board member of the Equal Employment Advisory Council. She has a business degree from The Ohio State University and a Juris Doctor from Creighton University.
1
8/2/16
Agenda • • • •
Applicant Data in OFCCP Audits Effective Outreach for OFCCP Audits PepsiCo Compliance for OFCCP Audits FNBO: How to Use Applicant Data to Monitor AA/ EEO Compliance
Applicant Data in OFCCP Audits
Adverse Impact: OFCCP’s #1 Settlement Area • Everyone is talking about pay, but applicant-to-hires adverse impact accounts for most of OFCCP’s settlements – Roughly 90% of settlements are hiring cases – In the past 3 months there have been 5 settlements and 2 litigations involving hiring practices • Ranging from $232,000 up to $1,850,000
Tools In OFCCP’s Tool Belt • Revised Scheduling Letter
Why? • Technology “happened” – Robust HRIS and online applicant tracking systems make data collection easier
• Employers have improved data tracking – The Good: Employers can more easily track applicant, testing, drug screen, and background check data – The Bad: EEOC and OFCCP can demand the same detailed data and analyze it to identify systemic discrimination
• Plus, biggest “bang for the buck”: large class + big money
Big Numbers are Bad Numbers Rate for Minority
Rate for Non-Minority
80% Rule
Standard Deviation
Shortfall
Minority vs. Non-Minority
1/10 .10
20/100 .20
50%
0.77
0
Minority vs. Non-Minority
10/100 .10
200/1000 .20
50%
2.43
9
Minority vs. Non-Minority
100/100 0 .10
2000/10000 .20
50%
7.67
90
Analysis
– Sub-minority data required with every submission
• Veterans and Individuals with Disabilities – “44(k)” analytics • • • • • •
# of openings # of jobs filled # of applicants # of protected applicants # of hires # of protected hires
• The bigger the numbers, the easier it is to find statistically significant adverse impact • Where there is a standard deviation of 1.96 or greater, the Agency can shift the burden to the employer to defend the decisions
2
8/2/16
What is OFCCP Doing with Sub-Minority Data? • Applicant, hires, promotions and terminations now must be submitted by gender and specific race/ethnicity categories • OFCCP is running it every which way…
Tools in the Employer’s Tool Box • There’s only one that really matters . . . And It’s a Big One • The Internet Applicant Rule – OFCCP came out with it in 2005 – Set forth in Definitions Section of the Regulations • 60-1.12(a)
Internet Applicant Rule 1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies; 2. The contractor considers the individual for employment in a particular position; 3. The individual’s application materials indicates the individual possesses the basic qualifications for the position; and 4. The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.
“Basic Qualifications” • “Basic Qualifications” is a defined term. Must be: – Documented in advance (e.g., advertised on website or established before review of applications begins) – Non-comparative (e.g., years of experience or specific degree) • Accounting degree required • NOT Accounting degree from an Ivy League School Key Point: Employment tests are not Basic Qualifications
“Expressions of Interest” • As long as the contractor accepts applications by some electronic means (by fax counts), the Rule can apply • But that doesn’t mean the contractor is REQUIRED to accept applications in all forms • You can, and should, control the process as to when and how interest in a position is expressed and submitted • Standards must be applied consistently for similarly situated individuals
“Basic Qualifications” – Objective (could be evaluated by a third-party with the contractor’s technical knowledge) – Relevant to performance of the particular job and enable the contractor to accomplish business-related goals • Accounting degree for Accountant position • NOT Accounting degree for Environmental Services position
3
8/2/16
“Considered” • “Considered for specific position” – Contractor assesses substantive information with respect to qualifications for a specific position – Protocols may limit which expressions are considered • Do not have to consider unsolicited resumes • Do not have to consider incomplete applications • Should not consider those who fail to identify specific job
“Removed from Consideration” – Opt Outs Examples include: • •
Actively says no longer interested in position Passively not interested in position, we can infer they are not interested – – – – – – – –
Repeated failure to respond (more than two) Salary expectations too high Failure to complete application requirements No show for interview Falsification of information Not willing to work shifts or overtime Not willing to relocate Not wiling to travel
Data Management Techniques • Data Management Techniques may be used to deal with large numbers and limit how many individuals are “considered” for the position – Last 25 in – First 50 in – First 30, then groups of 5 thereafter
• Can vary requisition to requisition • Record the data management technique used
How to Present Applicant Data in the Best Possible Light • Use the Internet Applicant Rule to identify and remove candidate who are not “applicants” and who should not count against us – Never considered for a particular position – Does not meet the basic qualifications – Withdrew from the process • Active withdrawal • Passive withdrawal
Document everything!
How to Identify “Applicants” under the Rule • With a reinvigorated EEOC & OFCCP, now, more than ever, employers must focus on identifying and explaining indicators of adverse impact. • Employers can effectively do that through the use of strategic disposition codes. • Use disposition codes to memorialize: – Who is an “applicant” under the Rule? – Who is not and can be taken out? – Why weren’t they selected?
Purpose of Disposition Codes • Strategic disposition codes should help employers clarify: • When? When did the candidate fall out? • Why? Why did they fall out? • Who? Who made the decision?
• This is especially helpful for employers undergoing an audit several years later • Who made the decision and date is typically kept in the notes sections of ATS systems
4
Legal Disclaimer It’s all about Applicant Data: Strategies for OFCCP Audits and Internal Self-Audits Kevin Fitzpatrick, PepsiCo Amy Lund, First National Bank Laura Mitchell, Jackson Lewis Jennifer Seda, Jackson Lewis
About Jennifer Seda JENNIFER L. SEDA is a Principal in the Jackson Lewis Affirmative Action Practice Group in the firm’s Denver, Colorado office. Jen defends approximately 100 OFCCP audits throughout the country each year. In addition, Jen oversees the preparation of approximately 500 AAPs each year. Jen also partners with our Ph.D.- and Master’s-level statisticians to conduct pay equity analyses proactively and in response to complaints and EEOC and OFCCP investigations and in litigation. Jen also specializes in assisting employers develop and implement strategic and compliant applicant tracking and HRIS systems. Jen is the Co-Chair of the Colorado Industry Liaison Group (ILG), Chair of the SWARM ILG 2014 Conference. Recognized by Chambers USA and SuperLawyers, Jen is also a member of the DirectEmployers Compliance Advisory Board, Center for Corporate Equality’s Compensation Technical Advisory Committee, Author and Editor for EEO Insight, and volunteers for Hire Heroes.
About Kevin Fitzpatrick KEVIN FITZPATRICK is the Sr. Compliance Manager for PepsiCo based in Plano, Texas. Kevin has been with PepsiCo for 18 years in a variety of roles. PepsiCo prepares over 600 Affirmative Action Plans for all divisions (Pepsi Beverages, Frito Lay, Tropicana, Gatorade and Quaker Foods) and manages OFCCP Compliance Reviews for all PepsiCo divisions. Kevin oversees the dozens of OFCCP audits currently under review where he regularly receives notices of compliance in these efforts. This work involves preparing the AAPs, including presenting the applicant flow data in the best possible light for OFCCP review, for submission. Kevin is also a member of the North Texas ILG.
The materials contained in this presentation were prepared in part by the law firm of Jackson Lewis P.C. for the participants’ reference in connection with education seminars presented by Jackson Lewis P.C attorneys. Attendees should consult with counsel before taking any actions and should not consider these materials or discussions about these materials to be legal or other advice.
About Laura Mitchell LAURA A. MITCHELL is a Principal in the Denver, Colorado office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action, EEO and government contractor compliance. Laura represents employers in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Laura also spends a good deal of her time counseling government contractors on their ever-expanding compliance obligations.
About Amy Lund AMY LUND is the EEO/Affirmative Action and Diversity Director at First National Bank, where for nine years, she has managed the EEO/Affirmative Action compliance and diversity functions for the largest privately held bank in the United States. She develops, executes and monitors 20+ affirmative action plans and leads the development and deployment of proactive strategies, policies and programs to achieve a diverse, discrimination-free workplace and to reinforce bank values and business objectives through implementation of EEO/AA, diversity and ethics training programs, targeted communications, employee relations, talent acquisition and talent management initiatives. Amy serves as the: • Chair of Midlands ILG; • National ILG board member, where she is Co-Chair of the Strategic Planning Committee; • Alliance Manager for the U.S. Business Leadership Network; and, • Founding member of the EEAC Future Leaders Network Group. Amy served as Co-Chair of the Program Committee for the 2014 SWARM ILG Conference and serves on the Program Committee for the 2017 ILG National Conference. Amy is also a former board member of the Equal Employment Advisory Council. She has a business degree from The Ohio State University and a Juris Doctor from Creighton University.
1
8/2/16
Agenda • • • •
Applicant Data in OFCCP Audits Effective Outreach for OFCCP Audits PepsiCo Compliance for OFCCP Audits FNBO: How to Use Applicant Data to Monitor AA/ EEO Compliance
Applicant Data in OFCCP Audits
Adverse Impact: OFCCP’s #1 Settlement Area • Everyone is talking about pay, but applicant-to-hires adverse impact accounts for most of OFCCP’s settlements – Roughly 90% of settlements are hiring cases – In the past 3 months there have been 5 settlements and 2 litigations involving hiring practices • Ranging from $232,000 up to $1,850,000
Tools In OFCCP’s Tool Belt • Revised Scheduling Letter
Why? • Technology “happened” – Robust HRIS and online applicant tracking systems make data collection easier
• Employers have improved data tracking – The Good: Employers can more easily track applicant, testing, drug screen, and background check data – The Bad: EEOC and OFCCP can demand the same detailed data and analyze it to identify systemic discrimination
• Plus, biggest “bang for the buck”: large class + big money
Big Numbers are Bad Numbers Rate for Minority
Rate for Non-Minority
80% Rule
Standard Deviation
Shortfall
Minority vs. Non-Minority
1/10 .10
20/100 .20
50%
0.77
0
Minority vs. Non-Minority
10/100 .10
200/1000 .20
50%
2.43
9
Minority vs. Non-Minority
100/100 0 .10
2000/10000 .20
50%
7.67
90
Analysis
– Sub-minority data required with every submission
• Veterans and Individuals with Disabilities – “44(k)” analytics • • • • • •
# of openings # of jobs filled # of applicants # of protected applicants # of hires # of protected hires
• The bigger the numbers, the easier it is to find statistically significant adverse impact • Where there is a standard deviation of 1.96 or greater, the Agency can shift the burden to the employer to defend the decisions
2
8/2/16
What is OFCCP Doing with Sub-Minority Data? • Applicant, hires, promotions and terminations now must be submitted by gender and specific race/ethnicity categories • OFCCP is running it every which way…
Tools in the Employer’s Tool Box • There’s only one that really matters . . . And It’s a Big One • The Internet Applicant Rule – OFCCP came out with it in 2005 – Set forth in Definitions Section of the Regulations • 60-1.12(a)
Internet Applicant Rule 1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies; 2. The contractor considers the individual for employment in a particular position; 3. The individual’s application materials indicates the individual possesses the basic qualifications for the position; and 4. The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.
“Basic Qualifications” • “Basic Qualifications” is a defined term. Must be: – Documented in advance (e.g., advertised on website or established before review of applications begins) – Non-comparative (e.g., years of experience or specific degree) • Accounting degree required • NOT Accounting degree from an Ivy League School Key Point: Employment tests are not Basic Qualifications
“Expressions of Interest” • As long as the contractor accepts applications by some electronic means (by fax counts), the Rule can apply • But that doesn’t mean the contractor is REQUIRED to accept applications in all forms • You can, and should, control the process as to when and how interest in a position is expressed and submitted • Standards must be applied consistently for similarly situated individuals
“Basic Qualifications” – Objective (could be evaluated by a third-party with the contractor’s technical knowledge) – Relevant to performance of the particular job and enable the contractor to accomplish business-related goals • Accounting degree for Accountant position • NOT Accounting degree for Environmental Services position
3
8/2/16
“Considered” • “Considered for specific position” – Contractor assesses substantive information with respect to qualifications for a specific position – Protocols may limit which expressions are considered • Do not have to consider unsolicited resumes • Do not have to consider incomplete applications • Should not consider those who fail to identify specific job
“Removed from Consideration” – Opt Outs Examples include: • •
Actively says no longer interested in position Passively not interested in position, we can infer they are not interested – – – – – – – –
Repeated failure to respond (more than two) Salary expectations too high Failure to complete application requirements No show for interview Falsification of information Not willing to work shifts or overtime Not willing to relocate Not wiling to travel
Data Management Techniques • Data Management Techniques may be used to deal with large numbers and limit how many individuals are “considered” for the position – Last 25 in – First 50 in – First 30, then groups of 5 thereafter
• Can vary requisition to requisition • Record the data management technique used
How to Present Applicant Data in the Best Possible Light • Use the Internet Applicant Rule to identify and remove candidate who are not “applicants” and who should not count against us – Never considered for a particular position – Does not meet the basic qualifications – Withdrew from the process • Active withdrawal • Passive withdrawal
Document everything!
How to Identify “Applicants” under the Rule • With a reinvigorated EEOC & OFCCP, now, more than ever, employers must focus on identifying and explaining indicators of adverse impact. • Employers can effectively do that through the use of strategic disposition codes. • Use disposition codes to memorialize: – Who is an “applicant” under the Rule? – Who is not and can be taken out? – Why weren’t they selected?
Purpose of Disposition Codes • Strategic disposition codes should help employers clarify: • When? When did the candidate fall out? • Why? Why did they fall out? • Who? Who made the decision?
• This is especially helpful for employers undergoing an audit several years later • Who made the decision and date is typically kept in the notes sections of ATS systems
4
