When Good Faith Efforts Are Not Enough: Outreach and Positive Recruitment

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1 When Good Faith Efforts Are Not Enough: Outreach and Positive Recruitment Candee J. Chambers, SPHR, SHRM-SCP, Sr. CAAP VP Compliance & Partnerships DirectEmployers Association (317)

2 OFCCP Compliance 4212/VEVRAA Job Delivery and Reporting 503 Assistance Partner Relationship Manager (PRM) NASWA Partnership Audit Support and Advocacy

3 Agenda I. Good Faith Efforts Are Not Good Enough Anymore II. What Is Meant By Outreach And Positive Recruitment? III.What Is An Outreach Assessment? IV.OFCCP 2015 Enforcement Statistics V. Mandatory Listing Requirement

4 I. Good Faith Efforts Are Not Good Enough Anymore Aren t Good Faith Efforts the requirement? NO! Good Faith Efforts (GFE s) are only the requirement for your Executive Order AAP for Minorities and Females (See 41 CFR (b), (a) and (c)) Pat Shiu, Director of the OFCCP, has said that Good Faith Efforts are not good enough! OFCCP Compliance Officers don t even ask for evidence of Good Faith Efforts anymore they want proof of your Outreach and Positive Recruitment

5 I. Good Faith Efforts Are Not Good Enough Anymore (Con t) Aren t Good Faith Efforts the requirement? [41 C.F.R (a) Record Retention] (b) Affirmative action programs. A contractor establishment required under to develop and maintain a written affirmative action program (AAP) must maintain its current AAP and documentation of good faith effort, and must preserve its AAP and documentation of good faith effort for the immediately preceding AAP year, unless it was not then covered by the AAP requirement. [41 C.F.R (a) Placement Goals] (a) Purpose: Placement goals serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work. Placement goals also are used to measure progress toward achieving equal employment opportunity. [41 C.F.R (c) Action-Oriented Programs] (c) Action-oriented programs. The contractor must develop and execute action-oriented programs designed to correct any problem areas identified pursuant to (b) and to attain established goals and objectives. In order for these action-oriented programs to be effective, the contractor must ensure that they consist of more than following the same procedures which have previously produced inadequate results. Furthermore, a contractor must demonstrate that it has made good faith efforts to remove identified barriers, expand employment opportunities, and produce measurable results. Emphases added.

6 II. What Is Meant By Outreach And Positive Recruitment? Outreach is not electronic it s all about communication Lots of confusion about posting jobs on job boards Outreach is more than posting jobs Requirement is local outreach and building relationships with outreach partners Very difficult to do if you are only sending your jobs through various job boards What contact information can you provide to the OFCCP as documentation of relationships you have built? What events can you share in which you have participated? Sending your jobs to diverse job boards is a nice to have, but it does not show that you have built the required relationships

7 II. What Is Meant By Outreach And Positive Recruitment? Outreach example for 503: 41 CFR Required contents of affirmative action programs. Acceptable affirmative action programs shall contain, but not necessarily be limited to the following elements: (f) External dissemination of policy, outreach, and positive recruitment (1) Required outreach efforts. (i) The contractor shall undertake appropriate outreach and positive recruitment activities such as those listed in paragraph (f)(2) of this section that are reasonably designed to effectively recruit qualified individuals with disabilities. It is not contemplated that the contractor will necessarily undertake all the activities listed in paragraph (f)(2) of this section or that its activities will be limited to those listed. The scope of the contractor's efforts shall depend upon all the circumstances, including the contractor's size and resources and the extent to which existing employment practices are adequate. (Emphasis added).

8 II. What Is Meant By Outreach And Positive Recruitment? (Con t) Building relationships with outreach partners What does this mean? Send s regularly with updates about hiring needs Make phone calls to check in get to know them Do NOT address letters To Whom it May Concern OFCCP will know you don t have a relationship built with these groups Invite partners to open houses, company tours, special events Offer to do mock interview or resume writing workshops Do not just send jobs to diverse job boards What will this get you? Can you track where these candidates have come from?

9 II. What Is Meant By Outreach And Positive Recruitment? (Con t) Do NOT forget outreach for females and minorities Forget the term Good Faith Efforts. Debra Carr recently told employers at the USBLN to Get the term Good Faith Efforts out of your vocabulary. Good Faith Efforts were only part of the EO regulations (for females and minorities); Good Faith Efforts are NOT required for protected veterans and individuals with disabilities it is now referred to as Outreach and Positive Recruitment Remember: Pat Shiu has always said Good Faith Efforts are not good enough Focus has just shifted to protected veterans and individuals with disabilities Outreach for females and minorities is still a requirement Outreach requirement for veterans and individuals with disabilities has always been a requirement Focus used to be on females and minorities, just like it is now on protected veterans and individuals with disabilities

10 II. What Is Meant By Outreach And Positive Recruitment? (Con t) Important: Recent Confused Internet Blogs By High Volume OFCCP Advertiser 503/VEVRAA GOOD FAITH EFFORTS CONTRACTOR SURVEY CONTRACTOR FEEDBACK ON 503/VEVRAA GOOD FAITH EFFORTS ACCOUNTABILITY IS KEY

11 III. What Is An Outreach Assessment? Have your efforts resulted in attracting and hiring qualified applicants with disabilities and/or protected veterans to your company? Are you getting qualified candidates? If you aren t, figure out why not Do you need to provide a better explanation of your company and your hiring process to your outreach partners? Don t wait until you put your AAP together to evaluate your outreach successes and failures Do an ongoing review if something isn t working, try something new Do you need to do more training for your recruiters and hiring managers?

12 III. What Is An Outreach Assessment? (Con t) Criteria For Contractor to Evaluate Outreach/Recruitment Activity: 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?

13 III. What is an Outreach Assessment? (Con t) SAMPLE EFFECTIVENESS ASSESSMENT OF OUTREACH AND RECRUITMENT EFFORTS AS TO PROTECTED VETERANS [41 C.F.R (f)(3)] Part I

14 III. What is an Outreach Assessment? (Con t) SAMPLE EFFECTIVENESS ASSESSMENT OF OUTREACH AND RECRUITMENT EFFORTS AS TO PROTECTED VETERANS [41 C.F.R (f)(3)] I Evaluation X individuals expressed interest, Y qualified individuals submitted application, Z number of conditional offers of employment provided Referral to us of PV job seekers increased In this AAP Year 2014, the Data Metrics reveal we were not successful in recruiting Protected Veterans to apply in proportions equal to or greater than the 7% availability U.S. Federal Government researchers predict (5% applied vs. 7% available). However, our hiring percentage of Protected Veterans (11%) nonetheless substantially exceeded the applicant flow of Protected Veterans (demonstrating the high quality of the relatively few Protected Veterans available to us). Happily, our DirectEmployers partnership also increased our Protected Veterans applicant flow, so we did make some progress in 2015 to increase our applicant flow over prior years. Part II J Conclusion ACTION ITEM: Poor source pool for us. Discontinue. ACTION ITEM: Worked with DE to add source codes to our ATS which assisted us in our ability to track where PV s were finding our jobs. Met our job listing requirements per 4212 regulations. Continue. ACTION ITEM: While we are generally pleased with the recruitment sources with which we have partnerships, we will discontinue our partnership with the VA Hospital and discontinue our annual Job Fair there, but will continue our successful DirectEmployers partnership and will increase our recruitment pools by adding the following new ones for Protected Veterans:

15 III. What is an Outreach Assessment? (Con t) Final, important note on Outreach and Positive Recruitment and your Outreach Assessment: You will not be cited if you are unable to reach your Protected Veteran Benchmark or your Utilization Goal for Individuals with Disabilities But You will be cited if you do not try!

16 IV. OFCCP 2015 Enforcement Statistics Outreach and Recruitment are the 2 nd most cited violations in 2015 Only.2% away from the 1 st most cited violation Recordkeeping Recognize the importance of documenting your Outreach and maintaining those records for the required 3 years! Outreach and Recruitment was the 1 st most cited violation in 2013 and in 2014

17 IV. OFCCP 2015 Enforcement Statistics (Con t)

18 V. Mandatory Listing Requirement [See 41 CFR (a)(2)] What do the 4212/VEVRAA regulations require and permit? The contractor agrees to immediately list (emphasis added) all employment openings which exist at the time of the execution of this contract with the appropriate employment service delivery system where the opening occurs. Listing (emphasis added) employment openings with the state workforce agency job bank or with the local employment service delivery system will satisfy the requirement to list jobs with the appropriate employment service delivery system. Does 503 have a mandatory listing requirement? No, only the 4212/VEVRAA Regulations have a mandatory listing requirement Contractors must still actively target and partner with organizations that work with individuals with disabilities to promote job openings and employment opportunities

19 V. Mandatory Listing Requirement (Con t) Listing Posting: Not synonymous/interchangeable terms

20 V. Mandatory Listing Requirement (Con t) LISTING Job listing refers to the act of the federal contractors transmitting their job openings to either the local ESDSs or the state job bank. This can be done in a variety of ways (mail, , direct entry into state job banks, automatic indexing, direct feeds) as long as the appropriate ESDS system says it is a valid format and enables the ESDS system to conduct priority referrals. POSTING Job posting refers to the act of the state or local ESDS (not federal contractors) having received the job listings supplied by federal contractors via any of the methods listed above, and posting those job listings on the state job bank. Federal contractors are not required to post to state job banks, as long as they can prove job listing, as described above.

21 Simply posting jobs is NOT an available option to comply with the 4212/VEVRAA Mandatory Listing Requirements If you post, but don t list, you will be cited. Why is this so important? Melissa Speer, Regional Director, SWARM Region of the OFCCP, at the ILG National Conference on August 7, 2014 Jobs must be listed prior to the posting to allow time for the LVER/DVOP or Business Services staff to provide the priority protected veteran referral If a job is merely posted, or even posted to the state job bank or local ESDS at the same time it is listed, the protected veteran job seeker is NOT getting access to the job prior to the non-veteran job seeker

22 V. Mandatory Listing Requirement (Con t) Why is this so important? If you are only posting your jobs, how do you continue to meet your MJL requirements if the job bank goes down? It has happened! Some states won t accept jobs to be posted from companies on strike. How would you continue to meet your MJL requirements? What if the state job bank doesn t have a hold on their jobs for 24 hours to allow for priority referral of protected veterans? How are you meeting your MJL requirements? Remember, the most important piece of the MJL requirement is the priority protected veteran referral!

23 V. Mandatory Listing Requirement (Con t) [41 C.F.R (a)6(ii)] What is meant by all employment openings? Includes all positions except executive and senior management With a salary of not less than $455 per week exclusive of board, lodging or other facilities; Whose primary duty is the management of the enterprise or of a recognized department or subdivision; Who customarily and regularly directs the work of two or more other employees; and Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight; or Any employee who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization

24 V. Mandatory Listing Requirement (Con t) Do you have to list jobs for all temporary employees? Positions for employees have to be listed, positions for independent contractors do not But beware of joint employment issues!

25 V. Mandatory Listing Requirement (Con t) When is job listing required for temporary employees? If the federal contractor has delegated hiring authority to what it calls its temporary employment agencies When is job listing NOT required for temporary employees? If the temporary employment agency is merely recruiting (not hiring ) for the federal contractor If the temporary employment agency is hiring employees only for the temporary employment agency, then these are not the federal contractor s employees but what if they are covered federal subcontractors? What if there is a joint employment relationship between the federal contractor and its temporary employment agency employees? NOTE: Federal contractors should give this issue special and careful attention. if there is a joint employment relationship, the federal contractor must list.

26 V. Mandatory Listing Requirement (Con t) Why do contractors get asked for job postings during OFCCP audits? OFCCP and contractors use the terms listing and posting interchangeably OFCCP has been getting better at requesting and using the term listing lately Contractors don t question the request because it is coming from the OFCCP What should you do? Ask why they need a job posting Do they really only need a copy of the job description? How will you know if you don t ask? Learn the actual regulations Push back they cannot cite you for something that is not in the regulations - this is very important for you to remember!

27 V. Mandatory Listing Requirement (Con t) What about the Contact Information? it shall advise the employment service delivery system in each state where it has establishments that: (a) It is a Federal contractor, so that the employment service delivery systems are able to identify them as such; and (b) it desires priority referrals from the state of protected veterans for job openings at all locations within the state. The contractor shall also provide to the employment service delivery system the name and location of each hiring location within the state and the contact information for the contractor official responsible for hiring at each location. The contractor official may be a chief hiring official, a Human Resources contact, a senior management contact, or any other manager for the contractor that can verify the information set forth in the job listing

28 V. Mandatory Listing Requirement (Con t) What about the Contact Information? (con t) Was NOT meant to be a Data Dump of information sent to the state workforce job banks Per Debra Carr Director of Policy and Program Development and Kier Bickerstaff, Associate Solicitor (Acting) Deputy Associate Solicitor (who actually drafted the VEVRAA regulations and said sending contact information to all state and local ESDS offices was NOT the intent Expectation is that contact information is sent with each job listing or whenever contact information changes

29 IV. Mandatory Listing Requirement (Con t) By statute, appropriate employment service delivery systems are required to: Refer qualified protected veterans to fill employment openings listed by contractors with such appropriate employment delivery systems pursuant to the mandatory job listing requirements Required to give priority to protected veterans in making such referrals ESDS shall provide OFCCP, upon request, information pertinent to whether the contractor is in compliance with the mandatory job listing requirements What does this mean? Responsibilities of Appropriate ESDSR 41 C.F.R in the interest of insuring that Federal contractors are properly identified so an ESDS can fulfill its (emphasis added) duty to give priority referral of protected veterans to (emphasis added) contractors (per the VEVRAA preamble)

30 IMPORTANT TAKEAWAYS FOR OUTREACH AND POSITIVE RECRUITMENT: The OFCCP is ONLY focusing on Outreach and Positive Recruitment Make sure you do Engaged Recruitment! Meet with potential outreach partners, explain your companies needs Invite them to tour your facilities so they can see for themselves the types of jobs you need to fill Track your outreach Focus on quality, not quantity Do a quarterly review do NOT wait until you are ready to create your AAP because that is way too late to create new partnerships

31 IMPORTANT TAKEAWAYS FOR YOUR MANDATORY LISTING REQUIREMENT: There is a BIG difference between Listing and Posting This is a huge area of misunderstanding among AAP consultants, law firms and the OFCCP Learn and understand the regulations you are only required to List your jobs NOT Post them If you only post your jobs directly to the state workforce agency job bank, do you know if they have a 24-hour hold on your jobs so you are receiving the Priority Protected Veteran Referral? Not many states have that hold built into their systems

32 Networking & Education Annual Meeting (DEAM) and Employers Connect Surveys and Webinars Industry Expert Bloggers including John C. Fox Pipeline Member Community

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