Aap a01 understanding aap reqs-2014
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“Written AAP” is one of the top violations cited by the OFCCP, implying a great need for companies under the OFCCP’s jurisdiction to really get a handle on AAP creation. Part 1 is designed to overview the foundation of written affirmative action plans and their necessity, focusing primarily on the background and structure of an affirmative action plan.
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Aap a01 understanding aap reqs-2014
- 1. A01 September 3, 2014 Ahmed Younies President/CEO, HR Unlimited
- 2. Preliminary Statement THIS PRESENTATION WAS PREPARED BY THE CONSULTING FIRM HR UNLIMITED, INC. FOR THE ATTENDEES’ OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY THE AFOREMENTIONED FIRM. ATTENDEES SHOULD CONSULT WITH THEIR COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE.
- 3. Webinar Hosted By HR Unlimited HR Services for Affirmative Action Programs, Training and Compensation Subject Matter Experts for EE/AAP Legal Counsels, Statisticians, Compensation Consultants, and Performance Management Diverse clients from Fortune 500 to SMB nationwide – 12 years in Business Services Mission is to provide superior, client focused, cost effective specialized Human Resources solutions
- 5. Today’s Speaker Ahmed Younies President/CEO HR Unlimited, Inc. ayounies@hrunlimitedinc.com
- 6. Page 6 Visit www.americasjobexchange.com/employer or Call 1-866-923-6284 The Twin Agencies: —OFCCP v. EEOC Enforcement Trends The Foundation Regulations & Requirements AAP Structure —What is an AAP? —Data Collection —Contents Closing Today’s Agenda
- 7. OFCCP • Office of Federal Contract Compliance Programs (OFCCP) • Jurisdiction: Federal Contractors and Subcontractors with 50+ employees • Preemptive investigation for patterns and practices of discrimination • E.O. 11246, Rehabilitation Act, Vietnam Veteran’s Readjustment Assistance Act (VEVRAA) • Mainly seeks back pay. OFCCP vs. EEOC EEOC • Equal Employment Opportunity Commission (EEOC) • Jurisdiction: Any business (public, private, non-profit) larger than 15 employees • Investigates individual complaints • Title VII, Americans w/ Disabilities Act, Age Discrimination in Employment Act, Equal Pay Act • Investigates individual claims of discrimination • Can seek punitive damages Fun Fact Employment complaints for companies smaller than 15 go to the Office of Special Counsel (OSC).
- 8. • The Office of Federal Contracts Compliance Programs • Reports to the Department of Labor (DOL) • Jurisdiction: Federal Contractors and Subcontractors • Network of 6 regional offices and 50+ district and area offices • More than 700 employees nationwide • Reviews personnel practices of federal contractors and subcontractors through compliance reviews • Audits average of 4500 contractor establishments annually Who Is the Enforcement Agency?
- 9. What is the OFCCP’s Mission/Purpose? Prohibits Employment Discrimination by Federal Contractors (Subcontractors) by Monitoring to Ensure Equal Employment Opportunity Without Regard to Race, Gender, Color, Religion, National Origin, Disability or Veteran Status and That Federal Contractors Meet Affirmative Action Requirements.
- 10. Enforcement Trends re: Written AAPs?
- 11. Compliance Reviews 3907 4942 4007 4008 4100 0 1000 2000 3000 4000 5000 6000 FY2009 FY2010 FY2011 FY2012 FY2013 Number of Compliance Reviews US DOL Data Enforcement
- 12. OFCCP Regions 4289 4117 4098 3268 2984 2873 0 500 1000 1500 2000 2500 3000 3500 4000 4500 5000 Midwest Pacific Southeast Southwest & Rocky Mountain Mid Atlantic Northeast Number of Compliance Reviews FY2008-FY2013
- 13. Number of Reviews per Industry FY2008- FY2013 7640 3440 2467 0 1000 2000 3000 4000 5000 6000 7000 8000 9000 US DOL Data Enforcement
- 14. Citations are Up 1290 1732 2195 2695 2304 2940 0 500 1000 1500 2000 2500 3000 3500 2009 2010 2011 2012 2013 2014 Number of Citations/Year US DOL Data Enforcement
- 15. Settlements are Up 618 839 999 1199 1037 1298 0 200 400 600 800 1000 1200 1400 2009 2010 2011 2012 2013 2014 Conciliation Agreements per year US DOL Data Enforcement
- 16. Top 5 Violations FY2009-2013 2941 2443 1739 1272 951 0 500 1000 1500 2000 2500 3000 3500 Recruitment Record Keeping Or Support Past Performance Written AAP Other US DOL Data Enforcement
- 17. The Foundation
- 18. Regulations
- 19. • Executive Order 11246, as amended – Race, Color, Religion, Gender, and National Origin • Section 503 of the Rehabilitation Act of 1973, as amended – Disabilities • Vietnam-Era Veterans Readjustment Act of 1974, as amended – Covers Protected Veterans Applicable Regulations
- 20. Code of Federal Regulations Public Contracts & Property Management Title 41 • Obligations of Contractors and Subcontractors – PART 60-1 (revised – effective 12/13/00) • Affirmative Action Programs – PART 60-2 (revised – effective 12/13/00) • Uniform Guidelines on Employment Selection Procedures – PART 60-3 • Construction Contractors – PART 60-4 • AA for Veterans – PART 60-250/300 • AA for Individuals With Disabilities – PART 60-741
- 21. Requirements
- 22. • Every federal contractor and subcontractor for each of its establishments if it has 50 or more employees AND • Has a contract or subcontract of $50,000 or more (not grants); OR • Has government bills of lading (GBL) which in any 12-month period, total or expect to total $50,000 or more; OR • Serves as a depository of government funds in any amount; OR • Is a financial institution which is an issuing and paying agent for US savings bonds and savings notes in any amount. Who Is Required to Have a Written AAP?
- 23. Exemptions 41 CFR 60 – 1.5 • Work outside the United States • Contracts with state or local governments • Work on or near Indian reservations • A… ̶ school ̶ college ̶ university ̶ or other educational institution …owned, supported, controlled, or managed by a particular religion • Exempted by deputy assistant secretary
- 25. An Affirmative Action Plan (or “AAP”): • Covers one year, • Is a written plan, and • Is a management tool to ensure EEO through: • Quantitative Analyses to identify indicators • Action-Oriented Programs • Internal Auditing and Reporting What is an Affirmative Action Plan?
- 26. AAP Women & Minorities Individuals with Disabilities Veterans An AAP = 3 Plans Statistical Analyses Narratives Narratives Narratives
- 27. AAP for Women & Minorities
- 28. Affirmative Action Plan Year -Data Collection- Example: Annual Plan • Plan: January 1, 2014 Calendar Year • Covers: January 1, 2014 through December 31, 2014 • Data Analyzed: January 1, 2013 through December 31, 2013 Example: Fiscal Plan • Plan: July 1, 2014 Fiscal Year • Covers: July 1, 2014 through June 30, 2015 • Data Analyzed: July 1, 2013 through June 30, 2014
- 29. AAP Contents 1. Statistical Analyses 2. Narratives
- 30. Statistical Analyses For Women and Minorities Title 41 CFR 60 • Organizational Profile (Organizational Display or Workforce Analysis) PART 60-2.11 • Job Group Analysis PART 60-2.12 • Placement of Incumbents in Job Groups PART 60-2.13 • Determining Availability PART 60-2.14 • Comparing Incumbency to Availability PART 60-2.15 • Placement Goals PART 60-2.16 • Adverse Impact Analysis CFR 60-2.17 (b) and (d) • Compensation Analysis CFR 60-2.17 (b) and (d)
- 31. Analyses Incumbency vs. Availability Pay Analyses Selection Decisions/ Impact Analyses AAPs Made Simple Organizational Profile (Workforce Analysis) Job Group Analysis Availability Incumbency vs. Availability Goals Hires vs. Applicants Promotions vs. Persons Considered Termination vs. Persons Considered Compensation Data Pay Group Analysis Pool Regression Cohort Analysis Policies and Practices
- 32. • Designation of Responsibility 41 CFR 60-2.17(a) • Identification of Problem Areas 41 CFR 60-2.17(b) • Action-Oriented Programs 41 CFR 60-2.17(c) • Internal Auditing and Reporting System 41 CFR 60-2.17(d) Women & Minorities Narratives
- 33. Understanding Narratives for Women & Minorities Evaluate Results To Monitor Progress Later… Modify Action Plan As Applicable Identify Problem Areas Create & Describe Actions Plan
- 34. AAPs for Veterans & Individuals with Disabilities
- 35. Veterans & Individuals with Disabilities Narratives • EEO Policy • Review of Personnel Policies • Physical & Mental Qualifications • Reasonable Accommodations • Harassment • External & Internal Dissemination of Policy • Audit & Reporting System • Responsibility for Implementation • Training Generally: • 41 CFR 60-741.44 • 41 CFR 60-250.44 • 41 CFR 60-300.44
- 36. Page 36 Visit www.americasjobexchange.com/employer or Call 1-866-923-6284 A nationwide 7% utilization goal for qualified IWDs. Conduct an annual utilization analysis and assessment of problem areas. Establish specific GFEs programs to address any identified problems. Document and update annually quantitative comparisons for IWDs-applicants and hires. Purpose – to measure the effectiveness of outreach and recruitment efforts. The data must be kept for three years to track trends. Section 503, As Amended – IWDs A benchmark equal to the national percentage of veterans in the civilian labor force, which will be posted and updated annually by OFCCP in the anticipated Benchmark Database - suggested 8%. Document and update annually quantitative comparisons for veterans-applicants and hires. Purpose – to measure the effectiveness of outreach and recruitment efforts. The data must be kept for three years to track trends. VEVRAA, As Amended – Protected Veterans -The New Rules-
- 37. Page 37 Visit www.americasjobexchange.com/employer or Call 1-866-923-6284 Invite applicants to self-identify as IWDs at both the pre-offer and post-offer Invite employees to self-identify as IWDs every five years, using the OFCCP prescribed language Section 503, As Amended – IWDs Invite applicants to self-identify as “protected veterans” at both pre-offer and post-offer Ensure posting of job openings with the appropriate State or local job service VEVRAA, As Amended – Protected Veterans -The New Rules-
- 38. AAP Women & Minorities Individuals with Disabilities -OFCCP suggested goal of 7%- Veterans -OFCCP suggested goal of 8%- - Closing - An AAP = 3 Plans Statistical Analyses Narratives Narratives Narratives
- 39. Q&A Please send your questions to: Ahmed Younies ayounies@hrunlimitedinc.com Tel: (714) 426-2918 x1 Cell: (949) 378-8417
Editor's Notes
- Stephanie: Hello everyone and welcome to HRU’s A01- Understanding AAP Requirements. As you can tell from the numbering, A01 is the first in a series of training which covers the ins and outs of Affirmative Action Plans in increasing detail and utilization. We also have upcoming webinars in AAP-related topics, such as Recordkeeping, and specialty areas, such as Construction. Today, we’ll cover AAP requirements, which is a perfect overview for those who are new to this area and a perfect refresher for those who’ve been involved with AAP for years. But first, let’s take care of some business: <click>
- Stephanie: this is a disclaimer statement to let you know that the content of this webinar is for education not for legal advice. <click>
- Ahmed: Thank you John. Now, there are two agencies usually associated with employment discrimination, and it’s easy to get confused about which is which, especially now under the current administration. OFCCP now applies Title VII principles. First, OFCCP stands for the Office of Federal Contract Compliance Programs. They primarily oversee federal contractors with more than 50 employees, while the EEOC oversees EVERYone larger than 15 employees. The OFCCP preemptively audits the businesses within its jurisdiction, while the EEOC typically investigates individual complaints. That’s a key distinction for contractors to remember. Even if there’s no systemic discrimination at your business, one employee complaining to the EEOC can still get you in trouble. They both focus on slightly different regulations, although the general goal is the same. However, the OFCCP usually seeks damages in the form of back pay for employees, applicants and hiring applicants from within an affected applicant pool, while the EEOC often goes after punitive damages. Here’s a fun fact: If you’re at a company smaller than 15, and you have a complaint, you take it to the Office of Special Counsel, instead of the OFCCP or EEOC. How many of you knew that? Let’s look a little more in-depth at the OFCCP. <click>
- They are an enforcement agency for the Department of Labor. They oversee Federal Contractors and Subcontractors, within limitations that we’ll cover later. There are 6 regional offices and they employ 700. We’ll show you some interesting charts on those regions in a bit. Annually, they perform roughly 4,500 audits. <click>
- I apologize for essentially reading several slides in a row, but I feel it’s important to know their mission: <read slide> Now, as with any mission statement, it’s intentions are quite admirable, but also like any mission statement, some of those enforcing it are different in their enforcement styles. Some are more about the letter of the law more than the spirit, and some are out to make a name for themselves. Other OFCCP employees are wonderful, and even get compliments from the businesses they’ve worked with or audited. Reason, they help educate contractors during the course of audits. Their style is positive enforcement. It’s important to know you always need to be prepared, because if you are audited, you do not know which type of compliance officer you will get. <click>
- John: Thank you, Ahmed. Let’s review recent enforcement trends and see how the OFCCP enforcement practices have evolved. <click>
- 2013 drop may have been due to government shutdown. Equation of Graph: y = 299.1x + 1145.9 Interpretation: For every 1 unit increase in years, citations increase by 299 (Number of citations increase by 299 annually).
- 2013 drop may have been due to government shutdown. Equation of Graph: y = 119.8x + 579 Interpretation: For every 1 unit increase in years, conciliation agreements increase by 120. (Number of conciliation agreements increase by 120 annually).
- Oh, wait. Well, a 2 violation increase over 2008 isn’t so bad. Whoa! Actually, we have a 100% increase!
- Before we get ahead of ourselves, let’s return to the fundamentals. I’d like to hand over the presentation to Janice. <click>
- Janice: Thank you Ahmed. As you know, complying with Affirmative Action is rooted in federal regulations. And for most contractors, the most basic regulations to know are…<click>
- …these three that we mentioned earlier. As you saw, the primary focus of the OFCCP is to enforce Executive Order 11246, which was signed by Lyndon Johnson. This is the order that ensures government funds are not going to companies with employment practices that discriminate against anyone on the basis of race, color, religion, gender, or national origin. It also enforces what is called Section 503, which protects people with disabilities from discrimination or exclusion from opportunity. This exclusion can include lack of what’s called “reasonable accommodation”—things like wheelchair ramps or a special desk—without which a company may find itself unable to hire the best talent. It’s also good to know that this may affect companies with contracts as little as $10,000. Lastly is the Vietnam-Era Veterans Readjustment Act, also known as VEVRAA. With a few unimportant caveats, nowadays this covers most veterans, regardless of conflict or lack thereof, and addresses ensuring that our military personnel are afforded opportunity to translate skills learned in the military into the workforce.
- <repeat of last slide showing the CFRs> The primary source for how all of this is implemented, and how contractors should work to comply, is the Code of Federal Regulations. In this case, the “CFR” is Title 41, Public Contracts and Property Management. CFR 41 outlines all of the requirements for contractors, who’s covered, documentation required, who’s protected, definitions, etc. It isn’t easy reading, but it isn’t that long either, so we highly recommend taking some time to go onto the CFR website, called “ecfr.gov”, and review it. If you’ll be joining us for A02 and beyond, it may be a great source of follow up questions for you to ask us. Now, I’d loke to hand over the presentation to Ahmed. <click>
- Thank you, Janice. For today, the first requirement isn’t, “What is required in an AAP”, but…<click>
- …”Who is required to have an AAP?” For all businesses, you must have at least 50 employees. Then, for non-construction businesses, schools, banks, and hospitals, any of the following: <read list> If you are a bank, please know that if you are FDIC insured, you ARE REQUIRED to have a written AAP! <click>
- There are a few exemptions. If the contractor is doing all work outside the US. Also, contracts with state and local governments, although those entities may have their own version of affirmative action, and you’ll want to check with the relevant bodies to ensure compliance at that level. Work on or near Indian reservations. Institutions owned or run by a religious body. Or businesses specifically exempted by the deputy assistant secretary. As you can imagine, not many contractors are exempt. <click>
- Now that you have the background, know who enforces it, seen the statistics, and know who needs to have it, it’s time to look at the Affirmative Action Plan itself. <click>
- Well, <read slide> <click>
- Here’s an interesting thing many new contractors don’t realize. You are not required to make just one affirmative action plan…you’re actually making three! One for Women & Minorities, one for Veterans, and one for Disabled People. Thankfully, the last two don’t require analyses…yet. They probably still won’t, but the OFCCP was trying to put forth new regulations on that. Also, those two use identical narratives. Let’s start by looking at… <click>
- …the AAP for Women and Minorities. <click>
- In an earlier slide, we mentioned that plans cover one year. This year is usually established in two ways: By aligning to the calendar year, beginning on January 1st and ending December 31st, or to a company’s fiscal year. In this example, we’re pretending our fiscal year begins July 1st. <click>
- For Women & Minorities, the AAP contains Statistical Analyses as well as narratives. <click>
- The analyses are spelled out in the CFR. First, you are required to create an Organizational Profile, which is essentially an organizational chart called a display, or you can lay out the same information in a table called a workforce analysis. The information includes demographic information related to gender and race, which, when viewed with titles and business units, helps determine if there is an non-legitimate concentration of a group within your organization. The job group analysis is similar, but groups employees by duties and titles rather than business or organizational units. Placement of Incumbents looks at what percentage of those job groups are females or minorities. Determining Availability can be tricky. It’s a guesstimate of what percentage of women and minorities may be able to perform the work in those job groups. This includes both the recruiting area for that group, as well as internal transfers and promotions. Comparing Incumbency to Availability is just like it sounds. Are the demographics of the Job Groups close enough to the demographics of those available to those Job Groups? If they aren’t close enough, then we establish… …Placement Goals. These are not quotas, nor admissions of anything other than something the company will make efforts in good faith to achieve. <click>
- However, these analyses only cover one branch of the analyses required. Thankfully, the next branch is simpler. In the middle section here, we have “Selection Decisions, Impact Analyses.” These analyses don’t look so much at the static picture, as the last analyses did, but at movement through the workplace, and they compare two groups directly every time. For example, do the demographics of the new hires from the last year roughly match the demographics of those applying for the job WHO WERE QUALIFIED? Whether an applicant is qualified or not is an important qualification for this analysis…but we’ll cover that in A03. Similarly, are the demographics of those promoted into a particular job group similar to the demographics of all those qualified for the promotion? Pay Analysis has recently gotten more, well, “interesting”, so we’ll discuss that on it’s own in a bit. <click>
- Now, the Narratives of an AAP basically state what you are doing to achieve any goals or address any problems. In the AAP for Women & Minorities, there are four different narratives, which are thankfully somewhat self-explanatory. The Designation of Responsibility states who is responsible for ensuring the plan is enacted and that the company is compliant. For most of you here today, that’s probably you. Don’t worry, it usually states that it’s with full support of management. Identification of Problem Areas is where you state, in narrative form, what issues were indicated by your analyses, if any, or state that there were none. Action-Oriented Programs lists the various Good Faith Efforts your company will be taking to ensure continued compliancy and also to pursue any goals established. We’ll go into great depth on Good Faith Efforts in A04. Internal Auditing and Reporting is similar to the last one with ensuring continued compliancy, and also with seeing if those Good Faith Efforts are successful or if they need to be adjusted. Something good to know, is that if you are audited by the OFCCP in the second-half of a plan year, they’ll ask to see what kind of progress you’ve made toward the goals of the current plan, so don’t ignore whatever is stated here in your narratives. <click>
- This little graphic shows how the last three narratives string together, and also illustrates how an AAP’s analyses can be used as the basis of diversity initiatives. First you identify where you may not be as diverse as you could be, and thereby not increasing your chances to have the best talent in each position. Then you formulate how best to go after and retain that talent. After a set period of time, and we recommend at least once every six months, you evaluate the progress and make any adjustments to your strategy. Now, I’d like to hand over the presentation to Janice. <click>
- Janice: AAPs for Veterans & those with Disabilities are somewhat different. For now, and this may change sometime in the future, there are no required analyses for these AAPs. <click>
- …And while the narratives are simpler in that they are identical, and often don’t require alteration from year to year, there are more of them. First, you must include your company’s EEO policy. This policy should also be posted prominently at each work establishment. If you currently don’t have one, let me know and I can send a standard policy to you. You’ll probably want a legal counsel to inspect before posting, especially if you make any modifications. Next, you must include this list of policies and procedures. Explain briefly each listed item. 41 CFR 60-741.44 to cover AAP for Individuals with disabilities, 41 CFR 60-250.44 to cover AAP for Veterans as related to contracts awarded before December 13, 2003, 41 CFR 60-300.44 to cover AAP for Veterans as related to contracts awarded or modified after December 13, 2003, Now, I’d like to hand the presentation over to Ahmed.
- Ahmed: Thank you, Janice. Just to review the basic structure: An AAP is really 3 different plans, one with analyses, and all with narratives. <click>
- We’ve reached the end of our presentation. Thank you so much for attending. <if there’s time> It looks like we have some time left for Q&A. John, would you like to give them instruction on asking some questions? <if not…> It looks like we may have run out of time for a Q&A. So what I’d like to do is have everyone with a question call or email. I want to make sure everything is addressed. I will personally respond to all communications. Well, that’s it. Thank you again, and we hope you’ll be joining us again soon. <end>