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How to Stop Worrying and Love Disposition Codes Part 2

Part 1 of this article focused on the important role that “disposition codes” play in the employer’s ability to perform its own meaningful adverse impact analyses and the employer’s ability to defend an allegation of discrimination/demand for back pay based on the OFCCP’s analyses of the data it provides…that is, the importance of Counting the Right Numbers.

In my experience, most disposition codes do a fairly good job of disclosing when each individual fell out of the process. That is probably because the systems many employers currently are using are built out of an original Applicant Tracking System (ATS). In fact, in the “Ask the Experts” online forum of LocalJobNetwork.com, we still see questions about discrimination analyses that refer to “our ATS” – which ought to be a misnomer but which often is not.

Decades ago, these systems were marketed to assist in time management of recruitment and selection. The original ATS was concerned with how many days it took to fill requisitions – including how long applications sat in Ray Recruiter’s inbox and how many times Helen Hiring Manager re-scheduled her interviews. So, the most basic ATS typically can tell us when an individual fell out of the process, at least pre- or post-interview, post-offer, etc. That’s somewhat relevant to counting the right numbers – provided that the “when” also includes some content.

Discrimination analyses are not about “tracking” applicants! Statistical discrimination analyses must be about the employer’s denial of an opportunity as well as whether the denial was unlawful. If the statistical analysis shows a disproportionate number of women or Asians, etc. was not selected, the law presumes this was because of sex or race. To rebut this presumption, the burden is on the employer to demonstrate its reason was lawful. If not gender, if not race, why?

As promised in Part I, Part II of this article focuses on some examples of disposition codes that have sufficient content to disclose why an individual was excluded, including reasons that have nothing to do with either the employer’s “denial” of the job, or nothing to do with its assessment of qualifications. Because not counting the wrong numbers is critical to Counting the Right Numbers.

Exemplars of Some Disposition Codes

First of all, disposition codes must be customized by each employer. I’ve tried to include in this list disposition codes that the reader might need to tailor only slightly to your organization as well as some that will clearly not work, e.g., some applicable only to higher education, some relevant only where there is a union, etc. But they should provide food for some creative thinking. No one could possibly design good disposition codes unless they knew a great deal about the organization structure, culture, selection process, pay policies, etc.

1. 1. HR Review of Application/Resume with NO ASSESSMENT of Qualifications (NA means Not an Applicant and NIA means Not an Internet Applicant. For government contractors, persons who aren’t “Internet Applicants” includes those in my list of exemplars that are labeled NA because none of these job seekers were “considered for a particular job.”)NA – Didn’t follow rule for submission – late or incomplete
      NA – Didn’t follow rule – did not seek specific open position
      NA – Didn’t follow rule as current employee/time in job¹
      NA – Not legal to work in U.S. – sponsorship not available in this job
      NA – Not legal to work in U.S. – requires sponsorship – quotas filled
      NA – Not legal to hire – under minimum age
      NA – Not legal to hire – non-citizen²
      NA – Not legal to hire – no state license³
      NA – Not legal to hire – state law⁴
      NA – Withdrew prior to interview – explicit (person stated he/she was no longer interested)
      NA – Withdrew prior to interview – implicit⁵ (person was unresponsive to two attempts to contact, untimely response, or did not show for interview)
      NA – Withdrew prior to interview – no meeting of the minds re: salary (if you ask for expected salary on the application)
      NA – Withdrew prior to interview – no meeting of the minds re: start date (often a problem with students not yet graduated) or hours of work (this could include shift, overtime, weekends – which you will only know if you ask this on the application)
      NA – Withdrew prior to interview – no meeting of the minds re: business travel or other working condition
      NA – Not considered – Sufficient numbers of applicants already in process
      NA – Not considered – Chose internal applicant before considering externals
      NA – Not considered – Application/resume is unintelligible

      Compliance Guidance: I strongly urge these three italicized codes be included in any employer’s schedule of codes. These are very common circumstances and only rarely have I seen employers prepared with such disposition codes – which means the ones that were used in these circumstances are always untrue.

      Some/many of these codes would be unnecessary/duplicative if the employer included its “rules” and/or more specifics of the job in the advertising of the “particular position.” Those employers who may not – or choose not to – inquire about pay history could obviate some problems of contradictory expectations if they disclosed the likely starting salary range in the ad so as – hopefully – to discourage expressions of interest from people whose expectations are incompatible with the employers’ budgets and/or pay policies.

      I strongly recommend that an employer not “consider” a person for a job s/he didn’t express interest in. You may “recruit” a job seeker by inviting him or her to apply – in accordance with your usual protocols. You may not “move him to the other requisition” – unless you move everyone, in which case you will disposition everyone for both requisitions. To move one or some is to make a selection decision about all. Don’t do it. Just don’t.

      Consistency is essential so be sure everyone understands that this is not “guidance” but a requirement. If the organization has a rule, every selecting official must apply it universally. I’ve looked very carefully and there is no dispensation in Federal law for higher education – or for Vice Presidents of this or that!

1. 1. HR Review of Application/Resume — AdministrativeRejected – Not eligible for re-hire (attendance)
      Rejected – Not eligible for re-hire (terminated for cause)
      Rejected – Not eligible for re-hire (performance)
      Rejected – Not eligible for re-hire (multiple re-hires)
      Rejected – Current employee – attendance
      Rejected – Current employee – performance
      Rejected – Abuse of selection process⁶

1. 1. Initial Review of Application/Basic Qualifications and Other Minimum Qualifications (NIA means Not an Internet Applicant)
      NIA – No basic qualification – education/type
      NIA – No basic qualification – education/amount or degree
      NIA – No basic qualification – education/certification
      NIA – No basic qualification – education/license
      NIA – No basic qualification – experience/relevant
      NIA – No basic qualification – experience/amount
      NIA – No basic qualification – PC skills not as described in advertisement
      NIA – No basic qualification – ____________ skills not as described in advertisement
      NIA – No basic qualification – no demonstrated ability to ___________ as described in advertisement
      NIA – No basic qualification – no 2nd language fluency
      NIA – No basic qualification – no demonstrated accomplishments in revenue production
      NIA – No basic qualification – not bondable
      NIA – No basic qualification – xxxxx
      Compliance Guidance: Use “No BQ” Code(s) only where the BQs used were established in advance of reviewing anyone’s qualifications and were advertised for the particular position. Be aware that if a “basic qualification” itself adversely impacts minorities or women – particularly if it is generally known to disproportionately exclude, the contractor may nevertheless be challenged by the OFCCP even if there is not “adverse impact” against minorities or women who are “Internet Applicants.” And the EEOC and other enforcement agencies surely will challenge and are not bound by the OFCCP’s interpretation of “Applicant/Internet Applicant.” It is particularly difficult to defend to any agency those education requirements that are not on their face not job related. That would include not “high school graduate or GED” especially for unskilled jobs but would also include “Bachelor’s Degree” without specifying a major or discipline that is demonstrably related to the particular job in question. Remember you must be prepared to justify whenever there is adverse impact. You may find it difficult to justify why a college degree – in anything — is job related to being an FLSA-exempt employee — in any job. Similarly, and notwithstanding that Higher Education’s “products” are degrees, a university may find it difficult to justify to an enforcement agency that a Master’s degree is required to be a Manager.

      Rejected – Pursuant to Collective Bargain Agreement with AAA (e.g., this could mean not senior or not “senior qualified”)
      Rejected – Pursuant to Collective Bargaining Agreement with BBB
      Rejected – Either no prior work history or cannot determine prior work history
      Rejected – Did not provide sufficient information to verify past employment
      Rejected – Unsatisfactory work history – periods of unexplained unemployment
      Rejected – Unsatisfactory work history – terminated for cause
      Rejected – Terminated with less than 90 days from similar job/working conditions
      Rejected – Unsatisfactory work history – job hopping
      Rejected – Unsatisfactory work history – reasons for leaving

      Compliance Guidance: I rarely see “employment history” coded separately and yet, in my experience, it is a frequent reason for non-selection. It’s almost always very subjective and, while a perfectly legitimate concern for a prospective employer, what is acceptable or not acceptable is rarely defined and may vary widely from recruiter to recruiter. It is particularly difficult to nail down years after the fact and possibly years after the recruiter has moved on. I encourage you to come to grips with this reality in your recruiting team. Obviously, they are using this information to predict whether an individual will be a “stable,” long-employed person. Find out if there is any consistency among them in the interpretations of such past behavior and make a strong effort to develop disposition codes that reflect their specific rationale, and to aim for uniformity and consistency in their use.

      Rejected – Experience not directly related
      Rejected – Experience not most recent
      Rejected – Experience is repetitive – no progression in KSAs
      Rejected – No demonstrated ability to lift ___ pounds
      Rejected – No demonstrated ability to _____________ (specify)
      Rejected – Not as qualified – amount of experience
      Rejected – Not as qualified – type of experience/type of employer
      Rejected – Not as qualified – skills
      Rejected – Not as qualified – education
      Rejected – Not as qualified – no current required license
      Rejected – Failed standardized test (specify)
      Rejected – Failed job sample test (specify)
      Rejected – Test ranking not competitive with others
      Rejected – Job related conviction

1. 1. Interview(s)⁷Rejected – Telephone interview – failed to confirm qualifications on application/resumé
      Rejected – Telephone interview – interpersonal or communication skills
      Rejected – Telephone interview – unprofessional demeanor
      Rejected – Telephone interview – not best match for job/work unit
      Rejected – Telephone interview – lacks sufficient interest/commitment to job sought
      Rejected – Interview failed to confirm qualifications on application
      Rejected – Interviewed – interpersonal or communication skills
      Rejected – Interviewed – unprofessional dress/demeanor
      Rejected – Interviewed – not best match for job/work unit^
      Rejected – Interviewed – lacks sufficient interest/commitment to job soughtNote: The ones below are especially for Higher Education/Faculty Selections although the starred one below might work well for other kinds of organizations and many other sorts of jobs.^These possible disposition codes probably reflect the authentic reason most qualified people don’t get an offer. Still, I urge caution in using words like “fit” or “not best match,” although I’d still rather have that code used if that’s the real basis for the rejection! However, the selecting official should be required to contemporaneously document what the nondiscriminatory “fit” or “match” issue is. Too often that used to be code for “doesn’t look like us.” But it may truly mean that although a particular applicant is very well qualified s/he isn’t a “fit” because s/he doesn’t bring anything new to the work group. To the extent that KSAs (Knowledge/Skill/Ability) are duplicated, the employer may justifiably prefer one who’s perhaps not quite “as qualified,” but who would bring to the work group a skill, experience or perspective that would be unique. There may also be “personality” issues such as mixing “team players” and “individual contributors.” Whether avoiding that is for good or ill is a judgment, but as long as it isn’t masking unlawful bias, it’s the manager’s prerogative. Which is, perhaps, an appropriate place for me to state that it is not my intent here to endorse any particular reason for rejection. These codes reflect the “why not selected” reasons I have observed in a variety of employment environments. I urge only that disposition codes show the actual basis for the employer’s decision – that should be the “content” of any disposition code. Presumably none will be patently discriminatory. They will permit the employer to discover whether any – and which – result in a disproportionate exclusion of a particular group. Such a finding ought to prompt further investigation by the employer.Rejected – Offsite interview – failed to confirm qualifications on application
      Rejected – No established scholarly reputation
      Rejected – Publications inadequate
      Rejected – Offsite interview – interpersonal or communication skills
      Rejected – Offsite interview – unprofessional dress/demeanor
      Rejected – Offsite interview – not best match for job/work unit
      Rejected – Offsite interview – lacks sufficient interest/commitment to job sought
      Rejected – Search Committee interview – failed to confirm qualifications on application
      Rejected – Search Committee interview – interpersonal or communication skills
      Rejected – Search Committee interview – unprofessional dress/demeanor
      Rejected – Search Committee interview – not best match for job/work unit
      Rejected – Search Committee interview – lacks sufficient interest/commitment to job sought*
      Rejected – Search Committee area of specialization overlaps others in department*
      Rejected – On campus instructional demonstration not up to expectations
      Rejected – Department Head interview – lack of institutional or departmental fit^
      Rejected – Department Head interview – another applicant better match^

1. 1. Post InterviewNA – Withdrew after interview – no meeting of the mind re start date or hours of work
      NA – Withdrew after interview – no meeting of the minds re other terms/conditions
      NA – Withdrew after interview – failed to provide additional requested documentation/transcript/references
      Rejected – Unable to confirm work experience/references
      Rejected – Unsatisfactory work references
      Rejected – Failed background check
      Rejected – After acquired evidence of falsification of application/resume/interview
      Rejected – Failed drug screen

1. SelectedSelected – Declined offer
   Selected – Failed physical examination/after consultation, no reasonable accommodation
   Selected – Failed to produce satisfactory I9 documentation
   Selected – No show to work
   Selected – Accepted and placed in Job
   Selected – Will be transferred in coordination between departments
   Compliance Guidance: These disposition codes are designed to code persons who were selected and rejected based on a particular qualification for a particular open position. When a person passes through all the selection process and the employer makes an offer, that person was selected by the employer, not rejected. Whether that “selection” resulted in a declined offer, a hire, a promotion, or even a demotion is irrelevant to the analysis of adverse impact; it is a payroll consequence only. Physical (medical) examinations are not “tests” pursuant to The Uniform Guidelines on Employee Selection Procedures. While, of course, a contractor must document its consideration of a reasonable accommodation and if one is not possible, the applicant will not be hired/promoted, and the contractor may have to defend that decision. However, the agency’s request for applicant and selection data in Item 18 deals exclusively with Executive Order compliance. Therefore, since no physical exam can be conducted prior to a job offer, the contractor has, ipso facto, “selected” the individual with a disability insofar as its assessment of “qualifications;” its “tests.” Such an applicant and such a selectee belong in an adverse impact analysis of race/ethnicity and gender. Once again, evidence that the payroll consequence of someone actually starting work has nothing to do with an analysis of whether the employer rejected him or her based on an assessment of “qualifications.”

A Note on Other Record Keeping/Coding Issues

Non-competitive selections such as “in line” promotions or elevations in pay or classification level purely as a result of “time in grade” are properly the subject of another article – though I am compelled to add that they should never be analyzed in combination with competitive applicant pools for competitive promotions.

However, I have never seen an electronic system handle other sorts of non-competitive selections which may occur infrequently and are truly quite different than any of the selections we’ve “disposed of” above.

“Finding a job for” a spouse or domestic partner happens rather often in higher education but as the labor market shrinks, other employers may also find that in order to hire one, they also have to hire the other. Sometimes an employer “makes a place” for an employee whose job has been eliminated elsewhere or who had to relocate to another of its establishments for some significant personal or health reason. If such an employee competes for a vacant position, s/he would be handled in the normal way, but if s/he wasn’t required to compete, I urge employers to develop disposition codes for such circumstances. Other circumstances for which one might need additional codes – remember, our goal is to tell it like it really was – are situations where an individual is entitled to return to a job; for example, from the military or FMLA leave, or as part of the settlement of a lawsuit or grievance.

When mergers and acquisitions are so common, employers need also a way to recognize any contractual obligations of the sale that provide employment opportunities for only the employees of the acquired company – or some of them.

Clearly, none of the placements so described should be included in any statistical analysis. In an abundance of rigor, you might “report” them to the OFCCP when reviewed or pursuant to a Conciliation Agreement, but they are never to be “counted” as selections in an analysis that includes other “applicants” when in fact there weren’t any. Also, never report them as if they were “single applicant hires” – please don’t do that!

You could consider disposition codes like this:

Non-competitive placement – contractual
Non-competitive placement – return from leave
Non-competitive placement – displaced employee

Even for a “born sorter” this looks like a great many disposition codes. And even these are by no means perfect, universally appropriate, nor necessarily exhaustive. But they are intended to stimulate your thoughts about ways your organization might design disposition codes that reflect its own methods and reasons for selection/rejection. May all your blue beads find a box!

Conclusion

Think of your selection process as a large funnel with many more people entering the process than are “successful” coming out of the process. In Part I of this article, I discussed the strategic advantage to employers of managing just how many people enter the “funnel” (i.e. are “considered”) and the many advantages to employers/contractors for providing enough “boxes” to sort the multiple reasons why any individual might not have been selected at the end.

A final observation: I’ve noticed that many contractors have more detailed disposition codes at the end of the process than at the beginning. Practically everyone has a code for failing the drug screen or failing background check for example. There are often as many or more codes covering those who are interviewed by the hiring manager as there are for those who don’t make it that far. The same employers with such detailed codes for the ending of the funnel very often have much less detail for the mouth of the selection funnel, the start of the process. But it is at the beginning where most “denials of opportunity” occur and where the employer is, consequently, the most vulnerable to challenge because the numbers involved are a quantum more likely to show “adverse impact.” You may have gotten it backwards! Invest the most effort and specificity of content when dispositioning the greatest number of job seekers and of applicants!

A final suggestion: for the same reason – that is, “Big Numbers” and smaller ones – I urge you to use your most valid, most demonstrably job-related selection criterion earliest in the process. If an applicant might be rejected on more than one basis (i.e., education, experience, work history, license, or “fit”) it just makes sense to use the disposition code that is the most easily defended – which will often (though not always) be the one that is the most “objective” rather than “subjective.” I would go so far as to suggest (people being after all human) that your most “objective” reasons for rejection at each stage of the process be higher on the list of possible disposition codes than the more subjective ones such as “work history” (which I distinguish from “experience”) codes or “fit.”

Train your recruiters/application reviewers to think defensively. Dispositioning each job seeker is not just something that the EEO Director dreamed up to annoy them. It’s an important part of their jobs and has the potential to save – or cost – their employer millions of dollars.

This publication is written to give general information on the subjects covered. Nothing in the article, Parts I and II, is intended nor should be construed as legal advice or as a substitute for any professional advice about your organization’s particular circumstances. Readers should consult competent counsel or other professional services with regard to how the matters discussed might relate to their own affairs or to resolve specific problems or questions. If you have questions about this article you may email me at [email protected]. Copyright © 2018 Ellen Shong Bergman, LLC

^{1. This does not cover the situation where the employee’s job performance is the reason for rejection. Such an assessment of performance amounts to “consideration” and the individual is thus an “applicant”. On the other hand, if the employer has a rule that, for example, an employee may have no more than three applications in play at any one time or that an employee must be in his/her current position for at least six months before applying, a jobseeker in that situation didn’t follow your rules and is, thus, not an applicant.}

^{2. This applies only to those circumstances where the employer has positions which require a government security clearance. If the employer does, it probably needs this disposition code as well as the “not legal to work in U.S” disposition code.}

^{3. Lack of a license as a “not legal to hire/not an applicant or “no BQ/Internet Applicant” code can be used only where the employer does not/is not permitted to hire an individual who does not possess a current license for his/her profession. If, however, the employer hires into such jobs provisionally (such as prior to passing the Bar Exam or prior to passing the State Nursing Boards) then not possessing a current license is a qualification just the same as experience or education. A person who doesn’t have a current license is an applicant/Internet Applicant but – unless s/he withdraws – may not be a qualified applicant/Internet Applicant for some other reason or may be one who is “not as qualified” as a person with a current license.}

^{4. For example, there’s been a prohibition in SC prohibiting any state agency from offering employment to any individual who is in arrears in repaying student loans. Pennsylvania required, and may still require, the certification of faculty as fluent in the English language. Where it would be a violation of law to hire an individual, that individual is not an “applicant” since no assessment of his/her qualifications has (should have) occurred.}

^{5. OFCCP regulations require “repeated efforts” to contact a jobseeker before the employer may conclude that s/he has implicitly expressed a lack of further interest. “Repeated” means twice. You must make two attempts to contact (phone or email) before categorizing the jobseeker as having withdrawn/not an applicant.}

^{6. This is intended to distinguish the job seeker who is truly problematic/pathological; who, for example, applies for dozens of jobs at a time (because you don’t have a rule prohibiting that), who is repeatedly rejected for jobs because s/he isn’t “legal to hire,” and/or who is abusive (documented) in his or her treatment of your employees.}

^{7. As with review of applications/resumes, HR and one or more Selecting Officials may each conduct assessment interviews. Particularly if HR will not refer anyone who does not “pass” the HR interview, it may be necessary to establish separate disposition codes for the initial and subsequent multiple/sequential interviews – some of which I have provided for here. Keep in mind, from among this long list of disposition codes, the rater is only going to have to choose from among the handful that might apply to the individual at the point in the selection process at which the rater is recording his/her rationale.}

Editor’s Note: This post was originally published on Circaworks.com. In April of 2023, Mitratech acquired Circa, a leading provider of inclusive recruiting & OFCCP compliance software. The content has since been updated to reflect our expanded product offerings, evolving talent acquisition compliance regulations, and best practices in HR management.

Counting the Right Numbers…or How to Stop Worrying and Love Disposition Codes – Part 2

Part 1 of this article focused on the important role that “disposition codes” play in the employer’s ability to perform its own meaningful adverse impact analyses and the employer’s ability to defend an allegation of discrimination/demand for back pay based on the OFCCP’s analyses of the data it provides…that is, the importance of Counting the Right Numbers.

In my experience, most disposition codes do a fairly good job of disclosing when each individual fell out of the process. That is probably because the systems many employers currently are using are built out of an original Applicant Tracking System (ATS). In fact, in the “Ask the Experts” online forum of LocalJobNetwork.com, we still see questions about discrimination analyses that refer to “our ATS” – which ought to be a misnomer but which often is not.

Decades ago, these systems were marketed to assist in time management of recruitment and selection. The original ATS was concerned with how many days it took to fill requisitions – including how long applications sat in Ray Recruiter’s inbox and how many times Helen Hiring Manager re-scheduled her interviews. So, the most basic ATS typically can tell us when an individual fell out of the process, at least pre- or post-interview, post-offer, etc. That’s somewhat relevant to counting the right numbers – provided that the “when” also includes some content.

Discrimination analyses are not about “tracking” applicants! Statistical discrimination analyses must be about the employer’s denial of an opportunity as well as whether the denial was unlawful. If the statistical analysis shows a disproportionate number of women or Asians, etc. was not selected, the law presumes this was because of sex or race. To rebut this presumption, the burden is on the employer to demonstrate its reason was lawful. If not gender, if not race, why?

As promised in Part I, Part II of this article focuses on some examples of disposition codes that have sufficient content to disclose why an individual was excluded, including reasons that have nothing to do with either the employer’s “denial” of the job, or nothing to do with its assessment of qualifications. Because not counting the wrong numbers is critical to Counting the Right Numbers.

Exemplars of Some Disposition Codes

First of all, disposition codes must be customized by each employer. I’ve tried to include in this list disposition codes that the reader might need to tailor only slightly to your organization as well as some that will clearly not work, e.g., some applicable only to higher education, some relevant only where there is a union, etc. But they should provide food for some creative thinking. No one could possibly design good disposition codes unless they knew a great deal about the organization structure, culture, selection process, pay policies, etc.

1. 1. HR Review of Application/Resume with NO ASSESSMENT of Qualifications (NA means Not an Applicant and NIA means Not an Internet Applicant. For government contractors, persons who aren’t “Internet Applicants” includes those in my list of exemplars that are labeled NA because none of these job seekers were “considered for a particular job.”)NA – Didn’t follow rule for submission – late or incomplete
      NA – Didn’t follow rule – did not seek specific open position
      NA – Didn’t follow rule as current employee/time in job¹
      NA – Not legal to work in U.S. – sponsorship not available in this job
      NA – Not legal to work in U.S. – requires sponsorship – quotas filled
      NA – Not legal to hire – under minimum age
      NA – Not legal to hire – non-citizen²
      NA – Not legal to hire – no state license³
      NA – Not legal to hire – state law⁴
      NA – Withdrew prior to interview – explicit (person stated he/she was no longer interested)
      NA – Withdrew prior to interview – implicit⁵ (person was unresponsive to two attempts to contact, untimely response, or did not show for interview)
      NA – Withdrew prior to interview – no meeting of the minds re: salary (if you ask for expected salary on the application)
      NA – Withdrew prior to interview – no meeting of the minds re: start date (often a problem with students not yet graduated) or hours of work (this could include shift, overtime, weekends – which you will only know if you ask this on the application)
      NA – Withdrew prior to interview – no meeting of the minds re: business travel or other working condition
      NA – Not considered – Sufficient numbers of applicants already in process
      NA – Not considered – Chose internal applicant before considering externals
      NA – Not considered – Application/resume is unintelligible

      Compliance Guidance: I strongly urge these three italicized codes be included in any employer’s schedule of codes. These are very common circumstances and only rarely have I seen employers prepared with such disposition codes – which means the ones that were used in these circumstances are always untrue.

      Some/many of these codes would be unnecessary/duplicative if the employer included its “rules” and/or more specifics of the job in the advertising of the “particular position.” Those employers who may not – or choose not to – inquire about pay history could obviate some problems of contradictory expectations if they disclosed the likely starting salary range in the ad so as – hopefully – to discourage expressions of interest from people whose expectations are incompatible with the employers’ budgets and/or pay policies.

      I strongly recommend that an employer not “consider” a person for a job s/he didn’t express interest in. You may “recruit” a job seeker by inviting him or her to apply – in accordance with your usual protocols. You may not “move him to the other requisition” – unless you move everyone, in which case you will disposition everyone for both requisitions. To move one or some is to make a selection decision about all. Don’t do it. Just don’t.

      Consistency is essential so be sure everyone understands that this is not “guidance” but a requirement. If the organization has a rule, every selecting official must apply it universally. I’ve looked very carefully and there is no dispensation in Federal law for higher education – or for Vice Presidents of this or that!

1. 1. HR Review of Application/Resume — AdministrativeRejected – Not eligible for re-hire (attendance)
      Rejected – Not eligible for re-hire (terminated for cause)
      Rejected – Not eligible for re-hire (performance)
      Rejected – Not eligible for re-hire (multiple re-hires)
      Rejected – Current employee – attendance
      Rejected – Current employee – performance
      Rejected – Abuse of selection process⁶

1. 1. Initial Review of Application/Basic Qualifications and Other Minimum Qualifications (NIA means Not an Internet Applicant)
      NIA – No basic qualification – education/type
      NIA – No basic qualification – education/amount or degree
      NIA – No basic qualification – education/certification
      NIA – No basic qualification – education/license
      NIA – No basic qualification – experience/relevant
      NIA – No basic qualification – experience/amount
      NIA – No basic qualification – PC skills not as described in advertisement
      NIA – No basic qualification – ____________ skills not as described in advertisement
      NIA – No basic qualification – no demonstrated ability to ___________ as described in advertisement
      NIA – No basic qualification – no 2nd language fluency
      NIA – No basic qualification – no demonstrated accomplishments in revenue production
      NIA – No basic qualification – not bondable
      NIA – No basic qualification – xxxxx
      Compliance Guidance: Use “No BQ” Code(s) only where the BQs used were established in advance of reviewing anyone’s qualifications and were advertised for the particular position. Be aware that if a “basic qualification” itself adversely impacts minorities or women – particularly if it is generally known to disproportionately exclude, the contractor may nevertheless be challenged by the OFCCP even if there is not “adverse impact” against minorities or women who are “Internet Applicants.” And the EEOC and other enforcement agencies surely will challenge and are not bound by the OFCCP’s interpretation of “Applicant/Internet Applicant.” It is particularly difficult to defend to any agency those education requirements that are not on their face not job related. That would include not “high school graduate or GED” especially for unskilled jobs but would also include “Bachelor’s Degree” without specifying a major or discipline that is demonstrably related to the particular job in question. Remember you must be prepared to justify whenever there is adverse impact. You may find it difficult to justify why a college degree – in anything — is job related to being an FLSA-exempt employee — in any job. Similarly, and notwithstanding that Higher Education’s “products” are degrees, a university may find it difficult to justify to an enforcement agency that a Master’s degree is required to be a Manager.

      Rejected – Pursuant to Collective Bargain Agreement with AAA (e.g., this could mean not senior or not “senior qualified”)
      Rejected – Pursuant to Collective Bargaining Agreement with BBB
      Rejected – Either no prior work history or cannot determine prior work history
      Rejected – Did not provide sufficient information to verify past employment
      Rejected – Unsatisfactory work history – periods of unexplained unemployment
      Rejected – Unsatisfactory work history – terminated for cause
      Rejected – Terminated with less than 90 days from similar job/working conditions
      Rejected – Unsatisfactory work history – job hopping
      Rejected – Unsatisfactory work history – reasons for leaving

      Compliance Guidance: I rarely see “employment history” coded separately and yet, in my experience, it is a frequent reason for non-selection. It’s almost always very subjective and, while a perfectly legitimate concern for a prospective employer, what is acceptable or not acceptable is rarely defined and may vary widely from recruiter to recruiter. It is particularly difficult to nail down years after the fact and possibly years after the recruiter has moved on. I encourage you to come to grips with this reality in your recruiting team. Obviously, they are using this information to predict whether an individual will be a “stable,” long-employed person. Find out if there is any consistency among them in the interpretations of such past behavior and make a strong effort to develop disposition codes that reflect their specific rationale, and to aim for uniformity and consistency in their use.

      Rejected – Experience not directly related
      Rejected – Experience not most recent
      Rejected – Experience is repetitive – no progression in KSAs
      Rejected – No demonstrated ability to lift ___ pounds
      Rejected – No demonstrated ability to _____________ (specify)
      Rejected – Not as qualified – amount of experience
      Rejected – Not as qualified – type of experience/type of employer
      Rejected – Not as qualified – skills
      Rejected – Not as qualified – education
      Rejected – Not as qualified – no current required license
      Rejected – Failed standardized test (specify)
      Rejected – Failed job sample test (specify)
      Rejected – Test ranking not competitive with others
      Rejected – Job related conviction

1. 1. Interview(s)⁷Rejected – Telephone interview – failed to confirm qualifications on application/resumé
      Rejected – Telephone interview – interpersonal or communication skills
      Rejected – Telephone interview – unprofessional demeanor
      Rejected – Telephone interview – not best match for job/work unit
      Rejected – Telephone interview – lacks sufficient interest/commitment to job sought
      Rejected – Interview failed to confirm qualifications on application
      Rejected – Interviewed – interpersonal or communication skills
      Rejected – Interviewed – unprofessional dress/demeanor
      Rejected – Interviewed – not best match for job/work unit^
      Rejected – Interviewed – lacks sufficient interest/commitment to job soughtNote: The ones below are especially for Higher Education/Faculty Selections although the starred one below might work well for other kinds of organizations and many other sorts of jobs.^These possible disposition codes probably reflect the authentic reason most qualified people don’t get an offer. Still, I urge caution in using words like “fit” or “not best match,” although I’d still rather have that code used if that’s the real basis for the rejection! However, the selecting official should be required to contemporaneously document what the nondiscriminatory “fit” or “match” issue is. Too often that used to be code for “doesn’t look like us.” But it may truly mean that although a particular applicant is very well qualified s/he isn’t a “fit” because s/he doesn’t bring anything new to the work group. To the extent that KSAs (Knowledge/Skill/Ability) are duplicated, the employer may justifiably prefer one who’s perhaps not quite “as qualified,” but who would bring to the work group a skill, experience or perspective that would be unique. There may also be “personality” issues such as mixing “team players” and “individual contributors.” Whether avoiding that is for good or ill is a judgment, but as long as it isn’t masking unlawful bias, it’s the manager’s prerogative. Which is, perhaps, an appropriate place for me to state that it is not my intent here to endorse any particular reason for rejection. These codes reflect the “why not selected” reasons I have observed in a variety of employment environments. I urge only that disposition codes show the actual basis for the employer’s decision – that should be the “content” of any disposition code. Presumably none will be patently discriminatory. They will permit the employer to discover whether any – and which – result in a disproportionate exclusion of a particular group. Such a finding ought to prompt further investigation by the employer.Rejected – Offsite interview – failed to confirm qualifications on application
      Rejected – No established scholarly reputation
      Rejected – Publications inadequate
      Rejected – Offsite interview – interpersonal or communication skills
      Rejected – Offsite interview – unprofessional dress/demeanor
      Rejected – Offsite interview – not best match for job/work unit
      Rejected – Offsite interview – lacks sufficient interest/commitment to job sought
      Rejected – Search Committee interview – failed to confirm qualifications on application
      Rejected – Search Committee interview – interpersonal or communication skills
      Rejected – Search Committee interview – unprofessional dress/demeanor
      Rejected – Search Committee interview – not best match for job/work unit
      Rejected – Search Committee interview – lacks sufficient interest/commitment to job sought*
      Rejected – Search Committee area of specialization overlaps others in department*
      Rejected – On campus instructional demonstration not up to expectations
      Rejected – Department Head interview – lack of institutional or departmental fit^
      Rejected – Department Head interview – another applicant better match^

1. 1. Post InterviewNA – Withdrew after interview – no meeting of the mind re start date or hours of work
      NA – Withdrew after interview – no meeting of the minds re other terms/conditions
      NA – Withdrew after interview – failed to provide additional requested documentation/transcript/references
      Rejected – Unable to confirm work experience/references
      Rejected – Unsatisfactory work references
      Rejected – Failed background check
      Rejected – After acquired evidence of falsification of application/resume/interview
      Rejected – Failed drug screen

1. SelectedSelected – Declined offer
   Selected – Failed physical examination/after consultation, no reasonable accommodation
   Selected – Failed to produce satisfactory I9 documentation
   Selected – No show to work
   Selected – Accepted and placed in Job
   Selected – Will be transferred in coordination between departments
   Compliance Guidance: These disposition codes are designed to code persons who were selected and rejected based on a particular qualification for a particular open position. When a person passes through all the selection process and the employer makes an offer, that person was selected by the employer, not rejected. Whether that “selection” resulted in a declined offer, a hire, a promotion, or even a demotion is irrelevant to the analysis of adverse impact; it is a payroll consequence only. Physical (medical) examinations are not “tests” pursuant to The Uniform Guidelines on Employee Selection Procedures. While, of course, a contractor must document its consideration of a reasonable accommodation and if one is not possible, the applicant will not be hired/promoted, and the contractor may have to defend that decision. However, the agency’s request for applicant and selection data in Item 18 deals exclusively with Executive Order compliance. Therefore, since no physical exam can be conducted prior to a job offer, the contractor has, ipso facto, “selected” the individual with a disability insofar as its assessment of “qualifications;” its “tests.” Such an applicant and such a selectee belong in an adverse impact analysis of race/ethnicity and gender. Once again, evidence that the payroll consequence of someone actually starting work has nothing to do with an analysis of whether the employer rejected him or her based on an assessment of “qualifications.”

A Note on Other Record Keeping/Coding Issues

Non-competitive selections such as “in line” promotions or elevations in pay or classification level purely as a result of “time in grade” are properly the subject of another article – though I am compelled to add that they should never be analyzed in combination with competitive applicant pools for competitive promotions.

However, I have never seen an electronic system handle other sorts of non-competitive selections which may occur infrequently and are truly quite different than any of the selections we’ve “disposed of” above.

“Finding a job for” a spouse or domestic partner happens rather often in higher education but as the labor market shrinks, other employers may also find that in order to hire one, they also have to hire the other. Sometimes an employer “makes a place” for an employee whose job has been eliminated elsewhere or who had to relocate to another of its establishments for some significant personal or health reason. If such an employee competes for a vacant position, s/he would be handled in the normal way, but if s/he wasn’t required to compete, I urge employers to develop disposition codes for such circumstances. Other circumstances for which one might need additional codes – remember, our goal is to tell it like it really was – are situations where an individual is entitled to return to a job; for example, from the military or FMLA leave, or as part of the settlement of a lawsuit or grievance.

When mergers and acquisitions are so common, employers need also a way to recognize any contractual obligations of the sale that provide employment opportunities for only the employees of the acquired company – or some of them.

Clearly, none of the placements so described should be included in any statistical analysis. In an abundance of rigor, you might “report” them to the OFCCP when reviewed or pursuant to a Conciliation Agreement, but they are never to be “counted” as selections in an analysis that includes other “applicants” when in fact there weren’t any. Also, never report them as if they were “single applicant hires” – please don’t do that!

You could consider disposition codes like this:

Non-competitive placement – contractual
Non-competitive placement – return from leave
Non-competitive placement – displaced employee

Even for a “born sorter” this looks like a great many disposition codes. And even these are by no means perfect, universally appropriate, nor necessarily exhaustive. But they are intended to stimulate your thoughts about ways your organization might design disposition codes that reflect its own methods and reasons for selection/rejection. May all your blue beads find a box!

Conclusion

Think of your selection process as a large funnel with many more people entering the process than are “successful” coming out of the process. In Part I of this article, I discussed the strategic advantage to employers of managing just how many people enter the “funnel” (i.e. are “considered”) and the many advantages to employers/contractors for providing enough “boxes” to sort the multiple reasons why any individual might not have been selected at the end.

A final observation: I’ve noticed that many contractors have more detailed disposition codes at the end of the process than at the beginning. Practically everyone has a code for failing the drug screen or failing background check for example. There are often as many or more codes covering those who are interviewed by the hiring manager as there are for those who don’t make it that far. The same employers with such detailed codes for the ending of the funnel very often have much less detail for the mouth of the selection funnel, the start of the process. But it is at the beginning where most “denials of opportunity” occur and where the employer is, consequently, the most vulnerable to challenge because the numbers involved are a quantum more likely to show “adverse impact.” You may have gotten it backwards! Invest the most effort and specificity of content when dispositioning the greatest number of job seekers and of applicants!

A final suggestion: for the same reason – that is, “Big Numbers” and smaller ones – I urge you to use your most valid, most demonstrably job-related selection criterion earliest in the process. If an applicant might be rejected on more than one basis (i.e., education, experience, work history, license, or “fit”) it just makes sense to use the disposition code that is the most easily defended – which will often (though not always) be the one that is the most “objective” rather than “subjective.” I would go so far as to suggest (people being after all human) that your most “objective” reasons for rejection at each stage of the process be higher on the list of possible disposition codes than the more subjective ones such as “work history” (which I distinguish from “experience”) codes or “fit.”

Train your recruiters/application reviewers to think defensively. Dispositioning each job seeker is not just something that the EEO Director dreamed up to annoy them. It’s an important part of their jobs and has the potential to save – or cost – their employer millions of dollars.

This publication is written to give general information on the subjects covered. Nothing in the article, Parts I and II, is intended nor should be construed as legal advice or as a substitute for any professional advice about your organization’s particular circumstances. Readers should consult competent counsel or other professional services with regard to how the matters discussed might relate to their own affairs or to resolve specific problems or questions. If you have questions about this article you may email me at [email protected]. Copyright © 2018 Ellen Shong Bergman, LLC

^{1. This does not cover the situation where the employee’s job performance is the reason for rejection. Such an assessment of performance amounts to “consideration” and the individual is thus an “applicant”. On the other hand, if the employer has a rule that, for example, an employee may have no more than three applications in play at any one time or that an employee must be in his/her current position for at least six months before applying, a jobseeker in that situation didn’t follow your rules and is, thus, not an applicant.}

^{2. This applies only to those circumstances where the employer has positions which require a government security clearance. If the employer does, it probably needs this disposition code as well as the “not legal to work in U.S” disposition code.}

^{3. Lack of a license as a “not legal to hire/not an applicant or “no BQ/Internet Applicant” code can be used only where the employer does not/is not permitted to hire an individual who does not possess a current license for his/her profession. If, however, the employer hires into such jobs provisionally (such as prior to passing the Bar Exam or prior to passing the State Nursing Boards) then not possessing a current license is a qualification just the same as experience or education. A person who doesn’t have a current license is an applicant/Internet Applicant but – unless s/he withdraws – may not be a qualified applicant/Internet Applicant for some other reason or may be one who is “not as qualified” as a person with a current license.}

^{4. For example, there’s been a prohibition in SC prohibiting any state agency from offering employment to any individual who is in arrears in repaying student loans. Pennsylvania required, and may still require, the certification of faculty as fluent in the English language. Where it would be a violation of law to hire an individual, that individual is not an “applicant” since no assessment of his/her qualifications has (should have) occurred.}

^{5. OFCCP regulations require “repeated efforts” to contact a jobseeker before the employer may conclude that s/he has implicitly expressed a lack of further interest. “Repeated” means twice. You must make two attempts to contact (phone or email) before categorizing the jobseeker as having withdrawn/not an applicant.}

^{6. This is intended to distinguish the job seeker who is truly problematic/pathological; who, for example, applies for dozens of jobs at a time (because you don’t have a rule prohibiting that), who is repeatedly rejected for jobs because s/he isn’t “legal to hire,” and/or who is abusive (documented) in his or her treatment of your employees.}

^{7. As with review of applications/resumes, HR and one or more Selecting Officials may each conduct assessment interviews. Particularly if HR will not refer anyone who does not “pass” the HR interview, it may be necessary to establish separate disposition codes for the initial and subsequent multiple/sequential interviews – some of which I have provided for here. Keep in mind, from among this long list of disposition codes, the rater is only going to have to choose from among the handful that might apply to the individual at the point in the selection process at which the rater is recording his/her rationale.}

Editor’s Note: This post was originally published on Circaworks.com. In April of 2023, Mitratech acquired Circa, a leading provider of inclusive recruiting & OFCCP compliance software. The content has since been updated to reflect our expanded product offerings, evolving talent acquisition compliance regulations, and best practices in HR management.

What is Affirmative Action?

Affirmative action is a set of policies that were enacted to promote equal opportunity to ensure under-repr...

Introducing AbacusNext International, Technology Solutions Provider to the UK, Europe, and Beyond

US Based AbacusNext incorporates AbacusNext International in Edinburgh, the new international headquarters of their globally expanding TaaS platform

EDINBURGH, UK—May 22, 2018—AbacusNext®, the largest Technology-as-a-Service (TaaS) provider for the professional services sector, today announced thattwo-time Queen’s Award WinnerHotDocs Ltd—recently integrated into the AbacusNext family of products—will be reorganized under the newly incorporated AbacusNext International Ltd. The HotDocs brand and product suite will remain as a subsidiary within AbacusNext International’s expanded slate of products and services for business.

From its new headquarters in Edinburgh, Scotland, AbacusNext International will bring the fully-managed private cloud solutions and business technology services they pioneered in the North American market to the UK and Europe for the first time. The centerpiece of AbacusNext International’s TaaS platform is Abacus Private Cloud, offering clients a fully virtualised, cloud-enabled IT experience that is secure, compliant, and eliminates capital expenditures so they can pay as they grow.

“This is an exciting day that marks a great milestone for everyone in the AbacusNext family,” said Alessandra Lezama, CEO of AbacusNext International. “By incorporating HotDocs into AbacusNext, we added a vital and complimentary offering to our product suite. Now, through this reorganization and by establishing an international headquarters in Edinburgh, we’re proud to deliver the full complement of our revolutionary technology platform to our clients in the UK, Europe and the rest of the world.”

AbacusNext International’s headquarters will be home to the current UK based HotDocs staff as well as support teams for UK and European clients wanting to take advantage of the full range of AbacusNext products, including Abacus Private Cloud’s best-in-class security and performance.

“As part of AbacusNext International we’re able to deliver greatly expanded technology offerings designed to meet the challenges of the digital age,” said Gary Eunson, Global Sales Director for HotDocs. “HotDocs’ established legacy in risk mitigation and AbacusNext’s proven leadership in cybersecurity are a natural fit, and together form the most comprehensive security and compliance platform available. HotDocs has built a world-class client base over the last three decades and this momentum is only going to increase as we’re able offer an all-inclusive set of highly scalable technology solutions.”

AbacusNext International’s combined, worldwide user base of 1.5 million professionals will benefit from the most compelling products and services portfolio in the industry, including case management and practice management software solutions, private cloud hosting, Desktop-as-a-Service (DaaS), IT infrastructure management, security endpoint protection, and business automation.

OFCCP’s Renewed Focus on Transparency, and What It Means for Compliance Reviews

In recent years, federal contractors have come to know an Office of Federal Contract Compliance Programs (OFCCP) that is, shall we say, a bit forward. More requests for data outside of the compliance review period. Common requests for workforce-wide compensation data, or for odd employee groupings without statistical indicators. Routine requests for exhaustive personal contact information of employees. Short turnaround deadlines on cumbersome information requests. And – perhaps most frustrating to contractors – an unwillingness to share investigative concerns, approaches, or methodology underpinning its initial areas of concern.

These aggressive practices have taken the contractor community aback. While OFCCP’s regulatory authority is centered on a neutral selection process, it has recently employed confrontational tactics traditionally reserved for complaint-driven processes – such as EEOC investigations and litigation.

One common theme underlies most or all of the shifts at OFCCP: the persistent drumbeat of ‘transparency.’

But since Director Ondray Harris was appointed to lead OFCCP in December of 2017, the landscape for federal contractors has been shifting. For example, during Director Harris’ still-young period of leadership, the Agency has committed to collaboration during compliance reviews, ensured additional National Office oversight of reviews presenting the most significant impact on contractors, and suggested it may revise its approach to compensation reviews. One common theme underlies most or all of the shifts at OFCCP: the persistent drumbeat of “transparency.”

To be clear, OFCCP may be showing signs of an evolution toward a more collaborative relationship with employers; but, contractors should not confuse these signals with lackadaisical oversight. After all, OFCCP is still an enforcement agency. That said, contractors can scrutinize how the Agency’s recent adjustments may impact pending – and future – compliance reviews.

Our colleagues recently wrote on how to leverage the additional time to prepare for an OFCCP audit that the Agency’s Corporate Scheduling Announcement Letters (CSALs) present. Following in series, here we explore how OFCCP’s recent shifts may impact strategy when responding to post submission requests.

1. 1. OFCCP’s Overarching Theme: Assurances of TransparencySpeaking in front of audiences of varying sizes and composition, including the contractor community and civil rights stakeholders, Director Harris and Senior Advisor Craig Leen (also appointed in late 2017) have repeated the constant refrain of “transparency.” This is a significant change that runs through many of the OFCCP’s current developments.They have assured contractors that OFCCP is both “talking the talk” and “walking the walk”: including instructing all levels of OFCCP personnel to be transparent regarding compliance reviews. And they’re making good on their word, including:
      • • Town Hall Action Plan – In late April, OFCCP released a Town Hall Action Plan, which outlines OFCCP’s path forward in light of the feedback it received during its ongoing stakeholder meetings. Initiative Number 3 is to “Increase transparency and communication with agency stakeholders.”

       

      • • Regular Statements of Transparency – OFCCP leadership has emphasized in public statements that OFCCP should partner with contractors toward common goals of achieving EEO workplaces, that OFCCP is messaging the requirement for transparency to all levels of the field, and that OFCCP welcomes feedback at the National Office where transparency at the local level is not practiced.

       

      • • Responses to Notifications of Non-Transparency from the Field – OFCCP’s National Office has been responsive to feedback where Regional or District level personnel have failed to be transparent – even ensuring that it will reach down to the local level to ensure they are following the National Office’s instructions.

       

      • Disclosure of Methodology for Contractor Selection – In April, OFCCP released a detailed explanation of its audit scheduling methodology for the latest round of CSALs. Among the nuggets in the letter is a description of how the agency grouped contractors by organizational relationship, and how it considered employee count and details of the federal contract.

      Contractors are wise to listen to this consistent drumbeat from the National Office. When presented with a significant, unanticipated request, consider attempting to engage the compliance officer on the basis for the request, and even escalate through management to understand the scope and direction of the review. This kind of exploration can help ensure OFCCP’s requests are “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance [with them] will not be unreasonably burdensome.” See United Space Alliance, LLC v. Solis, 824 F.Supp.2d 68, 91 (D.D.C. 2011).

1. 1. Implementation of Predetermination Notices (PDNs)A Predetermination Notice (“PDN”) is a letter to contractors that informs the contractor that OFCCP’s investigation suggests discrimination may have occurred. As the name suggests, a PDN is issued before OFCCP reaches a “final determination” in the review. A contractor then has at least 15 days to respond in writing before OFCCP reaches its final decision as to whether to issue a violation.In recent years, OFCCP has permitted, but not required, local offices to use the PDN in cases of systemic discrimination before issuing a Notice of Violation (“NOV”).

      All of that changed on February 27, 2018, when OFCCP issued Directive 2018-01, which requires all OFCCP Offices to use a PDN whenever it has identified preliminary findings of discrimination in a compliance review. According to the Directive, this shift “encourages communication with contractors and provides them an opportunity to respond to preliminary findings prior to OFCCP deciding to issue an NOV.”

      The key here for us is that there is no room for local offices to skip this step: “Regional discretion is no longer permitted.”

      One can interpret this change as the National Office installing layers of oversight on any proposed finding of discrimination to ensure the field office’s approach is sound. It also ensures transparency before OFCCP officially concludes a discrimination violation is appropriate.

      Contractors can rest a bit easier knowing that there will be an opportunity to vet and respond to any potential discrimination violation before the Agency issues it.

1. 1. Changes in Leadership PersonnelEven as the new Agency’s National Office leadership discusses transparency, several key downstream leaders at OFCCP have departed in recent months. Most notably, Janette Wipper, former Pacific Regional Director and, before that, a prominent plaintiff’s attorney, left the agency to lead the California Department of Fair Employment and Housing. Regional Director Wipper was largely seen as a driving force behind the Pacific Region’s focus on “black box,” litigation-style tactics to investigate the wage gap in contractor workforces. Her departure may clear the way for more National Office oversight of field office tactics and priorities.Former Deputy Director Tom Dowd and Midwest Regional Director Bradley Anderson, both long-tenured OFCCP leaders, recently left the Agency as well. Again, flattening the levels of decision making between top brass and the rank-and-file.

      We anticipate that this loss of established leadership will usher in more consistent enforcement across Regions, and that enforcement strategies will likely be set by the National Office – including the direction for increased cooperation (i.e. transparency).

      Again, contractors should not view these changes as a “free pass” in compliance reviews. All of these former Agency leaders installed capable and competent deputies and direct reports who will continue to evaluate compliance and ensure fair treatment.

1. A Reported Change in Compensation Enforcement?It would be impossible to discuss OFCCP’s aggressive enforcement methods in recent years without talking compensation. OFCCP often requests large volumes of data and information and spends long periods of time analyzing it, but has failed to engage in meaningful dialogue with the contractor regarding actual pay practices. In many cases, OFCCP has analyzed compensation, identified statistical indicators, and even issued violations without sharing the methodology used – or employee grouping analyzed – to arrive at their conclusions.The tide may be changing. Recently, an Administrative Law Judge decision limited areas of inquiry by OFCCP to those that flag in initial analyses. Without such preliminary indicators driving the requests, relevance becomes speculative. So, OFCCP’s transparency should extend to preliminary compensation analyses as well.

   In fact, reports are that OFCCP leadership is expected to rescind or modify its large scale statistical analysis approach to compensation analyses known as “Directive 307.” (Directive 307 abandoned the concept of “similarly situated employee groups” in favor of broad “pay analysis groups” that OFCCP, in its sole discretion, creates based on its own conclusions of who should be “similar” for pay purposes.)

   As of the date of this submission, there has been no official news on this front – but the impact of this potential change could be big. While sheer speculation, OFCCP may:

   1. 1. Abandon the foundation of large-scale statistical analyses of Directive 307 that permit the Agency on its own to determine groupings of “similar” employees under the contractor’s pay systems;

    

   1. 1. Continue to apply Directive 307’s framework, but engage in collaboration with the contractor under review to determine – and perhaps agree on – the appropriate pay analysis groups for review; or, perhaps,

    

   1. Shift its focus back to evaluating “similarly situated employee groups” as developed under longstanding Title VII case law.

   What we do know is that the climate of compensation reviews is shifting. For now, contractors that receive requests for robust compensation data or documents should evaluate the requests carefully to ensure they are only submitting “relevant” information. Ask questions. Engage with OFCCP. Attempt to understand the methodology and results of the initial analyses that prompted the additional request from OFCCP. The Agency has invited transparency, and prudent contractors should accept the invitation.

Conclusion

If the Agency rhythm from recent months bears out, contractors should remain informed throughout a compliance review. Contractors should understand the analyses OFCCP is conducting and concerns it may have. If not, engage the compliance officer and appropriate OFCCP management. Neither a PDN nor an NOV should be a surprise.

Contractors should remain hopeful that compliance reviews will eventually have a more collaborative tone. Until then, ask questions, push back where necessary, and engage the Agency as it implements its self-described initiative of transparency.

For assistance in or questions regarding OFCCP audit defense, affirmative action planning, pay equity, or related subject matters, please contact authors Christopher Patrick at 303-876-2202 or [email protected] or Elizabeth Hernandez at 303-225-2410 or [email protected].

This publication is designed to give general and timely information on the subjects covered. It is not intended as advice or assistance with respect to individual problems. It is provided with the understanding that the publisher, editor or authors are not engaged in rendering legal or other professional services. Readers should consult competent counsel or other professional services of their own choosing as to how the matters discussed relate to their own affairs or to resolve specific problems or questions. This publication may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Copyright © 2018 Jackson Lewis P.C.

Editor’s Note: This post was originally published on Circaworks.com. In April of 2023, Mitratech acquired Circa, a leading provider of inclusive recruiting & OFCCP compliance software. The content has since been updated to reflect our expanded product offerings, evolving talent acquisition compliance regulations, and best practices in HR management.

St. Louisans Always Enjoy Meeting at the Fair – The Outreach Vendor Fair

When the St. Louis Industry Liaison Group (ILG) talks about “meeting you at the fair,” it’s not about ice-cream cones and electric lights. What we’re talking about is a chance for federal contractors to visit with the community-based organizations (CBOs) who represent the veteran and disability communities in the St. Louis, MO-IL metro area. What started in 2014 as a response to the changes with Section 503 of the Rehabilitation Act (Section 503) and Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA) has now become more of a reunion, a way to see current partners and establish new partnerships. Maybe it was the balloons, maybe it was breakfast sandwiches, but this year there was a different vibe in the air. There are true friendships developing as the partnerships between federal contractors and CBOs continue to result in job placements for veterans and people with disabilities.

Since 2014, the St. Louis ILG has partnered with the St. Louis Office of Federal Contract Compliance Programs (OFCCP) and the University of Missouri – St. Louis (UMSL) who hosts our outreach vendor fairs. The purpose of the fair is to allow federal contractors to meet with CBOs that focus on providing employment services to veterans and individuals with disabilities. Through face-to-face conversations, federal contractors learn firsthand how these organizations can support their recruitment and employment initiatives to help ensure compliance with VEVRAA and Section 503. This year, 27 CBOs had 60 representatives at their booths, and there were 86 representatives from 45 federal contractors.

How Did We Make This Happen?
 

• The OFCCP reaches out to the CBOs as part of their collaboration efforts
• The ILG partners with HR organizations and local news media to reach federal contractors
• The university provides the venue
• A major employer sponsors the food
• We have lots of raffle items throughout the event
• The event takes place from 9:00 a.m. till noon, which is not a huge time commitment, and you can come and go as you please. It’s very informal.

Each year, we look for ways to change things up. This year’s fair included a keynote speaker, November Champion, Manager/VP of Online Accessibility Programs at Wells Fargo Advisors, who spoke on “What Human Resources Needs to Know About Web Accessibility.”

This year we also added a “Lunch and Learn” session for students who use ACCESS or the Veteran Office services. It was a chance for students to gain insight into how companies recruit and select candidates, in addition to resume and interview tips, from an HR panel which included Centene, Express Scripts, and Mercy Health Systems. Students submitted questions in advance and the discussion was moderated by the Chair of our ILG. It was a candid conversation and unique opportunity for the panel and the students. Questions for the panel included: “When should I disclose my disability?”; “Do you pay less to someone who has a disability?”; “How do you feel about older vets coming back into the workplace?”; and “How do you show passion on a resume?” From all accounts, it was a positive experience for everyone involved and one that we will build upon next year.

The Feedback Has Been Incredibly Positive
 

• Representatives from the CBOs look forward to this event. It is the one time each year that federal contractors are coming to them to ask about their services instead of them cold-calling companies and trying to get five minutes of their time.
• Federal contractors are making immediate connections with organizations who have qualified candidates available to fill current hourly and salaried openings.
• Companies who have attended before come back in order to make new contacts.
• Large employers who regularly use the larger CBOs get connected with some smaller organizations.
• It’s like a reunion for the CBOs to see each other and federal contractors to see their favorite agency representatives and job coaches in person.
• It’s a unique opportunity for the CBOs and federal contractors to interact with the staff from the EEOC and OFCCP in a welcoming setting.

…Watlow’s hiring managers are now requesting candidates with disabilities instead of temporary employees from staffing firms…

This Year’s Highlight

An unexpected highlight this year included a company testimonial by Angell Farley, HR Manager at Watlow, who shared success stories of quality hires made as a direct result of previous vendor fairs. Watlow came to the very first fair not knowing what to expect and made some good connections which resulted in successful placements. Each year, they have returned and made more connections resulting in more hires. Since attending their first fair in 2014, they have hired 14 individuals with disabilities through a variety of agencies. Angell talked about the fear their employees initially had about working with people with disabilities and how the training for the team leaders and the support of the job coaches alleviated those fears. She shared that Watlow’s hiring managers are now requesting candidates with disabilities instead of temporary employees from staffing firms and that one of the new team members outshines an employee with over 20 years of experience. She nearly had us in tears as she told the story about a team member with autism whose mother called to share the impact that his new job was having on his interactions with family at home.

For the planning committee, each year we wonder if we should do it again, if it’s time to merge this with other events, and if it’s worth the effort. But as we hear testimonials from Watlow and other federal contractors, we know this event does make a difference and we hope that other ILGs replicate this type of event.

We are especially grateful for the support that we receive from staff at the St. Louis OFCCP. They play an active role in providing compliance assistance to the federal contractors in carrying out their good-faith recruitment obligations under Section 503/VEVRAA regulations by bringing together the CBOs and the contractors. Plus, it is important for the OFCCP and federal contractors to know the current staff and new services that these agencies provide.

We strongly encourage other ILGs to follow this model and host an annual outreach vendor fair. We hope the national office of the OFCCP considers supporting these events as a way to partner with federal contractors. If your ILG would like information on our process and lessons learned since 2014, just send a note to [email protected]. We welcome the opportunity to share one of our best practices with you.

Editor’s Note: This post was originally published on Circaworks.com. In April of 2023, Mitratech acquired Circa, a leading provider of inclusive recruiting & OFCCP compliance software. The content has since been updated to reflect our expanded product offerings, evolving talent acquisition compliance regulations, and best practices in HR management.

OFCCP and the Rule of Law – Part V: A Contractor’s Bill of Rights?

In the four prior articles in this series, we have conducted an evaluation of OFCCP’s recent regulatory and enforcement positions through the lenses of the fundamental and perennial question, “What is Law?” This last article in this series addresses contractor concerns that have emerged over the past five years about what appears to be OFCCP’s results-oriented application of the law, i.e., determining whether a position or method is appropriate in a given case by whether it produces a finding of discrimination. The solution to this problem may be a formal “Contractor’s Bill of Rights,” but one that offers contractors more reliable protections than that suggested by OFCCP’s recent “Town Hall Action Plan,” which provided:
 

In past years, OFCCP built its enforcement policies on a dim view of federal contractors’ employment practices. For example, OFCCP repeatedly expressed its view that the “pay gap” indicates the existence of widespread and systemic pay discrimination in the workplaces of most federal contractors. This perspective was the basis for the OFCCP’s Directive 307, which purported to afford Agency investigators broad discretion to use aggregated regressions and other controversial methods to allege systemic pay discrimination. OFCCP rescinded the 2006 Standards and adopted Directive 307 precisely because it believed in the existence of widespread discrimination that could not be alleged to exist based on its application of the 2006 Standards.

There can be no reasonable doubt that cases of discrimination exist in the modern American workplace, even in the workplaces of federal contractors. That reality, however, does not support the broader perspective that discrimination is systematic and widespread, nor the presumption that it exists in most workplaces, such that the relevant question is not whether it exists here, but how OFCCP might be in a position to allege it and obtain a settlement.

Because people are subject to discrimination in American workplaces, OFCCP’s anti-discrimination mission is quite an important one. In pursuing its valuable mission, OFCCP (like any regulatory entity) may fall prey to the temptation to see the importance of the ends to be achieved as a basis for overriding otherwise reasonable concerns about the means used to reach those ends. Perhaps it is true that issuing a press release accusing an employer of discrimination or announcing a discrimination settlement, based on controversial methods and even in cases where no discrimination actually exists, can promote the ultimate goal of non-discrimination. Contractors may take heed and work harder to ensure non-discrimination to avoid a similar fate.

 One fundamental aspect of the Rule of Law is that, while Law is designed to serve societal needs, the Law does not bend to achieve results that may be deemed to serve those goals in every particular case.

However, the Rule of Law does not incorporate that robust, results-oriented perspective and its value is often in the fact that it does not. One fundamental aspect of the Rule of Law is that, while Law is designed to serve societal needs, the Law does not bend to achieve results that may be deemed to serve those goals in every particular case. Why might we apply Law as a Rule rather than bending the law when applying it in every particular case? A famous answer, given by Sir Thomas More in Robert Bolt’s A May for All Seasons, is as follows:
 

• Roper: So now you’d give the Devil benefit of law!

  More: Yes. What would you do? Cut a great road through the law to get after the Devil?

  Roper: I’d cut down every law in England to do that!

  More: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you're just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

OFCCP can hardly be said to have sought perdition for federal contractors, even those it accused of discrimination. It has, however, pursued aggressive and controversial approaches based on a perspective that systemic discrimination runs rampant in the workplaces of federal contractors.

Contractors’ legitimate concerns about results-oriented audit positions taken by OFCCP could certainly be addressed in a Contractors’ Bill of Rights. The protection of the Law is no more profoundly expressed than in a Bill of Rights. However, to be effective and to prevent overzealous auditors from ignoring the requirements, they must be somehow enforceable. It is not enough to expect contractors to complain to Washington because the local office refuses to honor the directives. In this respect, OFCCP’s recently announced plans to provide contractors a “‘Bill of Rights’ styled document” likely will be insufficient. The new leadership at OFCCP should consider providing contractors adequate protections against results-oriented audit practices and adopt other measures designed to prevent past abuses.

Editor’s Note: This post was originally published on Circaworks.com. In April of 2023, Mitratech acquired Circa, a leading provider of inclusive recruiting & OFCCP compliance software. The content has since been updated to reflect our expanded product offerings, evolving talent acquisition compliance regulations, and best practices in HR management.

How Veterans Can Change the Future of Cybersecurity

The last several years, cybersecurity has found itself thrust into mainstream media. Hacks against the government, companies, and individuals’ personal data have almost become a daily routine. To put actual numbers behind this, 54% of companies state they have experienced one or more successful attacks that compromised their IT infrastructure. Only a third of organizations believe they are adequately equipped to manage their security. The bad news is each attack costs a company over $5 million per breach and we are going to spend $98 million globally to minimize our losses. However, the piece de resistance is the fact that these figures will more than triple the number of unfilled cybersecurity jobs to 3.5 million by 2021.

This last statistic is the reason why a group of community partners led by the leadership of Scott Air Force Base founded the Midwest Cyber Center (MC²) – to help fill the hundreds, if not thousands, of openings unfilled in local government agencies and contractors annually. The base has experienced the limited availability of talent for units on base to fill critical government positions, and federal contractors are finding it difficult to fill key jobs that are created through securing government contracts. Each organization is fighting for talent and often poaches individuals from one another to fill mission-essential roles. Eventually they all lose to Corporate America, which typically pays higher salaries and offers a bit more flexibility in their work environment. At the end of the day, everyone mentioned loses, and positions remain open in a time where we really need as many apprentices and professionals in seats as possible.

Last May, with the support of the Department of Labor teams in both Illinois and Missouri, MC² launched the third in the country, the first in their region, Cybersecurity Analyst Registered Apprenticeship Program. The apprenticeship model is a familiar concept. The program is celebrating its 80th birthday in 2018. Most of us are familiar with the idea, but in a much more traditional sense of the trades – carpenter, painter, and electrician. What most people don’t realize is there are apprenticeships for almost every career imaginable from glass blowing to dental hygiene.

There are exciting times ahead in the world of apprenticeships. The federal government has done a lot in the last few years to expand the apprenticeship model. They have funded programs like Apprenticeship USA and, most recently, created a task force appointed by the President of the United States to create a plan and expand the program. The idea is to grow even more programs and reach 5 million apprentices by 2021.

The program focuses recruitment on three key demographics: transitioning veterans, underrepresented communities, and community college graduates.

MC² is committed to do its part in achieving this goal and has created a model that works. The Registered Apprenticeship is a unique, flexible training system that combines job related technical instruction with structured on-the-job learning experiences and online coursework. Apprentices start working from day one with incremental wage increases as they become more proficient on the job. They have built a foundation for hundreds of apprentices to enter the workforce over the next several years. The program focuses recruitment on three key demographics: transitioning veterans, underrepresented communities, and community college graduates. Each demographic provides an opportunity for the program, but by specifically targeting transitioning veterans, it helps fill the void in government agencies.

Most transitioning veterans maintain the “holy grail” for government work – a security clearance. A security clearance is generally always required to work for a contractor or government agency. Being cleared immediately eliminates a barrier for entry into a career in cybersecurity. With a little bit of additional training provided by MC² and the apprenticeship program, veterans can earn while they learn and be placed in employment while they are transitioning.

A great example of how this works is Peter Luna. Peter is a former infantryman who relocated to the Scott Air Force Base area after his brother, Lieutenant Colonel George Sconyers, encouraged him to apply for the program. Peter applied, was accepted, and eventually placed in a government contract role with Eagle Technology Group. Peter started his career at the Defense Information Systems Agency as a help desk technician, but quickly proved he could do more. You can read more about Peter’s journey in Infantryman to Cyber Warrior, written by his supervisor, Ray Gluck.

Outside of government work, veterans are in high demand by corporations. Companies like Boeing, Monsanto, and Peabody Energy respect the work ethic and values of transitioning veterans. Success in a cybersecurity role requires teamwork, the ability to think fast, and the skill to handle attacks from many different angles. This is exactly why Chief Information Security Officers target their recruitment, and why companies like Fortinet have created tailored training programs, for veterans.

Demon Griffin is another example of the apprenticeship program’s success. Demon is a Platoon Sergeant in the Missouri National Guard and has served honorably for nearly 12 years. He heard about the program during his studies at Lindenwood University where he will obtain a bachelor’s degree in Cybersecurity this fall. After Demon interviewed with the team at Peabody Energy, they immediately knew he was the candidate they were looking for. Peabody’s St. Louis security office is staffed by five individuals, and four of them happen to be veterans. They are led by Brent Bettis, who still serves in the reserves.

Looking ahead, the program will continue to target more veterans like Peter and Demon. Like Eagle Technology Group and Peabody, they recognize veterans bring invaluable skills to a cybersecurity career. They believe they are an untapped resource to close the skills gap and to protect our critical infrastructure. To attract more veterans, MC² is working to make the apprenticeship program G.I. Bill approved. This will afford veterans more benefits and employers more options to hire them. They also are establishing more partnerships with regional nonprofits focused on transitioning veterans like The Mission Continues, Hiring Our Heroes, and Warrior Transition Network. These nonprofits focus solely on aiding veterans in their transition and seek programs like the Cybersecurity Analyst Registered Apprenticeship Program to refer candidates.

There is the potential to expand the program because the clearance and vacancy challenges are not unique to the Scott Air Force Base community. There are several bases across the country looking for cleared cybersecurity talent like Colorado Springs, Colorado; San Antonio, Texas; and Dayton, Ohio. Because of the federal designation of registered apprenticeship programs, expansion into other locations is simple. Conversations have begun on a pilot program in those three communities, and funds are being requested to help each location staff and augment the apprenticeship by the end of 2018.

The federal government has also allocated over $100 million in the budget for 2018 to achieve the goals outlined by the task force. This is a major opportunity to change the way individuals find high-paying, middle skill, and advanced skill careers.

For more information on the Midwest Cyber Center, contact Tony Bryan at 618-722-5117, ext. 112 or by email at [email protected].

Editor’s Note: This post was originally published on Circaworks.com. In April of 2023, Mitratech acquired Circa, a leading provider of inclusive recruiting & OFCCP compliance software. The content has since been updated to reflect our expanded product offerings, evolving talent acquisition compliance regulations, and best practices in HR management.

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