ERE WEBINAR

                           June 2, 2010




OFCCP COMPLIANCE: TRENDS AND BEST PRACTICES
                     ...
Introductory Statement


  THE MATERIALS CONTAINED IN THIS PRESENTATION
  WERE PREPARED BY THE LAW FIRM OF JACKSON
  LEWIS...
About Jackson Lewis

   Jackson Lewis LLP is dedicated to representing
management exclusively in workplace law and related...
About The Affirmative Action Practice Group

We have unparalleled experience preparing AAPs and
defending them before the ...
About Mickey Silberman, Esq.

  Mickey is the Chair of Jackson Lewis’ Affirmative
 Action Practice Group and is the Managi...
About Jennifer Seda, Esq.


 Jennifer is an Associate in the firm’s Affirmative Action
 Practice Group in the firm’s Denve...
Agenda


  Back to the Future: Good Faith Efforts with a Twist
  Adverse Impact:        “Reverse”            and   Sub-M...
BACK TO THE FUTURE: GOOD
FAITH EFFORTS WITH A TWIST




         © 2010 Jackson Lewis LLP
                                ...
Back to the Future: Good Faith Efforts with a Twist

  During the past several years, EEO enforcement
   agencies (EEOC a...
Back to the Future: “GFEs” with a Twist
(continued)
  Increasingly during audits and investigations, the
   enforcement a...
Back to the Future: “GFEs” with a Twist
(continued)
  Similarly, the enforcement agencies are intently
   scrutinizing th...
Back to the Future: “GFEs” with a Twist
(continued)

  In late 2009, the OFCCP announced plans to develop
   affirmative ...
Back to the Future: “GFEs” with a Twist
(continued)
  Recommendation: ensure that you regularly list job
   openings with...
Adverse Impact Update


 But despite the Agency’s focus in some new
  (and some old) areas, “the Song Remains
            ...
Adverse Impact Recent Developments

While the Agency continues to spend its time and gather
considerable money from applic...
Traditional Adverse Impact Analysis


                                        Rate for
                              Rate ...
Sample “Reverse” and Sub-Minority Analyses


                                                 Rate for
                   ...
Technology – Making It All Happen

   With the increase in technology, the agencies
 and employers are able to analyze lar...
Examples of Recent OFCCP Sub-Minority
Investigations

 Non-Pacific Islanders: Adverse impact against Non-
 Pacific Islande...
STRATEGIC DISPOSITION CODES




          © 2010 Jackson Lewis LLP
                                     19
Importance of Strategic Disposition Codes


Now, more than ever, as “red flags” occur more
frequently, employers must focu...
Purposes of Disposition Codes

 Strategic disposition codes should help employers
 clarify:

        When? What stage did...
Disposition Codes


Examples of bad disposition codes:

       More qualified applicant selected

       Not chosen

   ...
Disposition Codes (continued)

Examples of strategic disposition codes:

        Resume Screen – Better qualified candida...
CONSIDERATIONS FOR
RECRUITING WITH SOCIAL
  NETWORKING SITES




       © 2010 Jackson Lewis LLP
                         ...
Social Networking Sites

  Social networking sites like Facebook, Twitter,
   LinkedIn, etc. contain personal and profess...
Advantages of Recruiting with Social Networking Sites

   Recruiters may search social networking sites to identify
    q...
Social Network Recruiting: Internet Applicant Rule

  Internet Applicant Rule is somewhat antiquated
          Proposed ...
Social Network Recruiting: Record Keeping Obligations


   Sourcing: Not Considered for a Particular Position
         N...
Social Network Recruiting: Posting Obligations



  If recruiting for a particular position, do not forget
   employer po...
Social Network Recruiting: EEO Obligations

  Employers have an obligation to make good faith efforts
   to attract quali...
Social Network Recruiting: Discrimination Claims

 Social networking sites contain an abundance of
personal information th...
Questions?




             © 2010 Jackson Lewis LLP
                                        32
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OFCCP Compliance: Trends And Best Practices

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OFCCP Compliance: Trends And Best Practices

  1. 1. ERE WEBINAR June 2, 2010 OFCCP COMPLIANCE: TRENDS AND BEST PRACTICES Mickey Silberman, Esq. Jackson Lewis, LLP 950 17th Street, Suite 2600 Denver, CO 80202 (303) 225-2400 silbermanm@jacksonlewis.com Jennifer Seda, Esq. Jackson Lewis, LLP 950 17th Street, Suite 2600 Denver, CO 80202 (303) 225-2411 sedaj@jacksonlewis.com
  2. 2. Introductory Statement 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. © 2010 Jackson Lewis LLP 1
  3. 3. About Jackson Lewis 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. © 2010 Jackson Lewis LLP 2
  4. 4. About The Affirmative Action Practice Group We have unparalleled experience preparing AAPs and defending them before the OFCCP in all industries and areas of the country. Our diverse team of 35 attorneys, paralegals, and support staff prepares approximately 1,800 AAPs a year. Since 2008, we have defended over 250 OFCCP audits, including successful defense of Corporate Management (“Glass Ceiling”) Compliance Evaluations. As a law firm, we offer more than consulting services, we offer strategic thinking and sophisticated legal representation. © 2010 Jackson Lewis LLP 3
  5. 5. About Mickey Silberman, Esq. Mickey is the Chair of Jackson Lewis’ Affirmative Action Practice Group and is the Managing Partner of the firm’s Denver, Colorado office. Mickey represents management exclusively in all areas of employment law and specializes in EEO, affirmative action and diversity. Each year, Mickey directs the defense of hundreds of OFCCP audits throughout the country. He has obtained Letters of Compliance in more than 99% of those audits. © 2010 Jackson Lewis LLP 4
  6. 6. About Jennifer Seda, Esq. 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. © 2010 Jackson Lewis LLP 5
  7. 7. Agenda   Back to the Future: Good Faith Efforts with a Twist   Adverse Impact: “Reverse” and Sub-Minority Analyses   Strategic Disposition Codes   Considerations for Recruiting with Social Networking Sites   Q & A © 2010 Jackson Lewis LLP 6
  8. 8. BACK TO THE FUTURE: GOOD FAITH EFFORTS WITH A TWIST © 2010 Jackson Lewis LLP 7
  9. 9. Back to the Future: Good Faith Efforts with a Twist   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 © 2010 Jackson Lewis LLP 8
  10. 10. Back to the Future: “GFEs” with a Twist (continued)   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 © 2010 Jackson Lewis LLP 9
  11. 11. Back to the Future: “GFEs” with a Twist (continued)   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 © 2010 Jackson Lewis LLP 10
  12. 12. Back to the Future: “GFEs” with a Twist (continued)   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 © 2010 Jackson Lewis LLP 11
  13. 13. Back to the Future: “GFEs” with a Twist (continued)   Recommendation: ensure that you regularly list job openings with: •  Minority and female diversity recruitment sources •  Veteran and disabled diversity recruitment sources •  State employment services (this obligation arises from the veterans affirmative action regulations)   Record referral source information for applicants from diversity recruitment sources •  Monitor the number and quality of applicants referred by these sources and, as appropriate, change these sources © 2010 Jackson Lewis LLP 12
  14. 14. Adverse Impact Update But despite the Agency’s focus in some new (and some old) areas, “the Song Remains the Same” THE CONTINUING FOCUS ON APPLICANT-TO-HIRE ADVERSE IMPACT © 2010 Jackson Lewis LLP 13
  15. 15. Adverse Impact Recent Developments 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. © 2010 Jackson Lewis LLP 14
  16. 16. Traditional Adverse Impact Analysis Rate for Rate for Non- Standard Analysis Protected Protected IRA Deviation Group Group Minority v. Non-Minority 9/100 1/100 9.0 -2.596 .09 .01 Female v. Male 4/100 6/100 0.67 0.649 .04 .06 Traditionally, these are good adverse impact results. © 2010 Jackson Lewis LLP 15
  17. 17. Sample “Reverse” and Sub-Minority Analyses Rate for Rate for Non- Standard Analysis Protected Protected IRA Deviation Group Group Minority v. Non-Minority 9/100 1/100 9.0 -2.596 .09 .01 Female v. Male 4/100 6/100 0.67 0.649 .04 .06 Black v. All Others 1/80 9/120 .17 1.987 .01 .08 Black v. Hispanic 1/80 8/20 .03 5.416 .01 .40 © 2010 Jackson Lewis LLP 16
  18. 18. Technology – Making It All Happen 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 © 2010 Jackson Lewis LLP 17
  19. 19. Examples of Recent OFCCP Sub-Minority Investigations Non-Pacific Islanders: Adverse impact against Non- Pacific Islanders in an employer’s hiring process in rural Utah Native Americans: Adverse impact against Native Americans in an employer’s hiring process in American Falls, Idaho Hispanic vs. White + Black: Adverse impact against Whites and Blacks as compared to Hispanics in an employer’s hiring process in Houston © 2010 Jackson Lewis LLP 18
  20. 20. STRATEGIC DISPOSITION CODES © 2010 Jackson Lewis LLP 19
  21. 21. Importance of Strategic Disposition Codes Now, more than ever, as “red flags” occur more frequently, employers must focus on explanations of statistical adverse impact Employers can effectively do that through the use of strategic disposition codes © 2010 Jackson Lewis LLP 20
  22. 22. Purposes of Disposition Codes Strategic disposition codes should help employers clarify:   When? What stage 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 © 2010 Jackson Lewis LLP 21
  23. 23. Disposition Codes Examples of bad disposition codes:   More qualified applicant selected   Not chosen   Interviewed/screened   Applicant disqualified   Blank © 2010 Jackson Lewis LLP 22
  24. 24. Disposition Codes (continued) Examples of strategic disposition codes:   Resume Screen – Better qualified candidates selected – education – Recruiter D. Black   Resume Screen - Not willing to work for compensation – Recruiter M. Smith   Resume Screen – Data management techniques – Recruiter B. Fleming   Phone Screen - Did not return calls – Recruiter J. Segall   Phone Screen - Not willing to work hours – Recruiter L. Anderson   Test – Failed Test – Employment Manager P. Barry   Interview - No show to interview – Hiring Manager S. Perez   Drug Test – Did Not Show for Drug Test– Employment Manager N. Moore   Background Check – Failed Background Check – HR Administrator W. Barnes © 2010 Jackson Lewis LLP 23
  25. 25. CONSIDERATIONS FOR RECRUITING WITH SOCIAL NETWORKING SITES © 2010 Jackson Lewis LLP 24
  26. 26. Social Networking Sites   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).   LinkedIn has over 60 million users. … And growing every day. © 2010 Jackson Lewis LLP 25
  27. 27. Advantages of Recruiting with Social Networking Sites   Recruiters may search social networking sites to identify qualified candidates for existing and upcoming positions   If recruiting with social networking sites, keep in mind the following:   Internet Applicant Rule definition of “applicant”   Record keeping obligations   Posting obligations   Obligation to make good faith efforts to attract diverse candidates (EEO)   Discrimination claims © 2010 Jackson Lewis LLP 26
  28. 28. 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. © 2010 Jackson Lewis LLP 27
  29. 29. 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 © 2010 Jackson Lewis LLP 28
  30. 30. Social Network Recruiting: Posting Obligations   If recruiting for a particular position, do not forget employer posting obligations. All jobs must be posted with the state except:   Jobs that will be filled by internal candidates   Executive positions or   Jobs lasting three days or less © 2010 Jackson Lewis LLP 29
  31. 31. Social Network Recruiting: EEO Obligations   Employers have an obligation to make good faith efforts to attract qualified diverse (race and gender) candidates into the candidate pool   Potential problems with social networking sites from an EEO perspective:   Not necessarily diverse candidates   More difficult to track   Inconsistent use of the resource © 2010 Jackson Lewis LLP 30
  32. 32. Social Network Recruiting: Discrimination Claims Social networking sites contain an abundance of personal information that an employer would not necessarily obtain in hiring process, such as: •  Sexual orientation •  Marital status/children •  Religion •  Political views •  Affiliations •  Ethnicity •  Personal interests Tip: Have a non decision-maker conduct the search and filter out protected information © 2010 Jackson Lewis LLP 31
  33. 33. Questions? © 2010 Jackson Lewis LLP 32
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