HotDocs Announces Partnership with Comsys
Leading document automation software provider HotDocs today announced a new partnership with ComSys SA, a privately owned IT company headquartered in Athens that offers innovative ICT solutions aiming to improve business performance and streamline processes.
Partnering with HotDocs will provide ComSys’ clients with an industry leading document automation software, which enables efficient, accurate and compliant production of business-critical documentation.
Steve Spratt, SVP & General Manager of HotDocs International, said: “HotDocs is continuing to form valuable partnerships with leading IT and software providers as part of our international growth strategy. I’m delighted to welcome ComSys SA to the HotDocs family and I look forward to working closely with the team there to deliver our innovative cloud and on premise solutions across Greece, Turkey and the Balkans.”
Kostas Bithimitris, Document Automation Product Manager at ComSys, concluded: “ComSys continues to execute a product portfolio broadening strategy, aiming to provide its customer base with the best of breed software products for their daily business. At ComSys, we remain focused on the delivery to the market with state of the art software solutions; HotDocs is an important addition to our offering for reaching this goal.”
Editor’s Note: This post was originally published on HotDocs.com. In June 2024, Mitratech acquired Advanced Document Automation Platform, HotDocs. The content has since been updated to include information aligned with our product offerings, regulation changes, and compliance.
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Pay Transparency – Tips for Training Managers
Since it is over six months since the Pay Transparency Rules went into effect, I’ve been wondering about the communication and implementation strategies undertaken by government contractors. Even though there is no requirement in the Rule to conduct training, it is a proactive approach to ensuring that your management team understands the nuances of the Rule.
If you have conducted management training covering the new Pay Transparency Rules, you have probably experienced what I have noticed in my presentations. Since I love those tough managers, always questioning and challenging, I knew that training on the topic of pay transparency would be fun! As soon as I communicate what managers cannot do to applicants and employees who talk about their compensation, I notice that the managers’ initial reaction of shock slowly turns to anger. As we delve deeper into the definitions of compensation and compensation information, horror prevails and the accusations that the government is interfering in the way that contractors operate enter into the mix.
These reactions may appear to be extreme but this is what I have experienced. For these reasons, I would like to share the following tips for training managers with the goal of demystifying the negative reactions of the Pay Transparency Rule.
What is Important to Convey to Managers?
What is acceptable to discuss?
All employees and applicants are permitted, but not required, to talk about their compensation or compensation offered to them. Sharing compensation information is a voluntary and personal decision. Communicating this information to managers tends to diffuse some of the anger and initial misunderstanding of the Rule.
Managers should not interfere with employee pay discussions even though it is their initial reaction to do so. Keep in mind that the definition of compensation is very broad and includes:
- Salary
- Wages
- Overtime pay
- Shift differentials
- Bonuses
- Profit sharing
- Commissions
- Vacation and holiday pay
- Allowances
- Insurance and other benefits
- Stock options
- Retirement
Who is not permitted to talk about pay?
Employees who have access to pay information as part of their essential job functions if:
- Access to compensation information is necessary to perform that function or another routinely assigned business task, or
- The function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.
A job or job function falls under the definition of essential job functions if:
- The access to the compensation information is necessary in order to perform that function or another routinely assigned business task; or
- The function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.
…identifying who can and cannot talk about pay also depends on how they obtained the pay information.
Even though the above definition may appear clear, identifying who can and cannot talk about pay also depends on how they obtained the pay information. Needless to say, determining who and what a person can share is not as easy as it seems. An employee holding the position of a human resources manager or a payroll specialist may appear to meet this definition, but not all employees in these positions have access to applicant and employee compensation information.
Employees with these essential job functions cannot share pay information of others if they learned about the pay through their essential job functions. However, they are permitted to discuss their own compensation or discuss disparities involving other employees’ pay with a management official or other pay information if they learned about it outside their essential job functions. They may also share compensation information while using the company’s internal complaint process or when responding to a formal complaint or charge, investigation, proceeding, hearing or action.
According to the OFCCP, the essential job function of having access to the base pay data does not have to be defined in the job description; however, it would not be a bad idea to do so.
Training Example 1
Sally, an administrative assistant, retrieves a misplaced item from a trash can and also pulls out a performance appraisal and increase amount for a co-worker, Mark, a data entry clerk. Sally tells her other co-workers about Mark’s appraisal and increase.
Can you discipline Sally for sharing this information? No, it doesn’t matter how Sally discovered the information. Since she does not have the essential job function, she has the right to share the information.
Can you discipline the person who left the appraisal in the trash can? That depends on who left it. If it was someone who had access to the information as their essential job function, then they can be disciplined, regardless of whether they put it there intentionally or unintentionally. In that case, the pay secrecy rule would not prevent the contractor from taking action against the individual in accordance with whatever standards it imposes on its employees who are entrusted with maintaining pay or other employee data in a confidential way.
Training Example 2 (From OFCCP’s training program)
Peter, an IT professional, has a weekly task that he ensures the personnel data, including individualized pay data, hasn’t been hacked. One week, he’s running his security check and he notices that (Sally) made less than (Ted). And later, he tells (Sally) of the disparity.
Can the contractor discipline Peter? Yes, because Peter requires access to compensation information in order to perform one of his job functions, which is making sure that individualized pay data isn’t hacked. Additionally, Peter is responsible for protecting and maintaining the privacy of employee personnel records. So because his job functions meet the definition of essential job functions under the Rule, he would not be protected in revealing compensation information that he obtained through those job functions to someone who also didn’t have access to the information.
What is Important for Managers to Hear and Understand?
This Rule may appear to be new; however, in Section 7 of the National Labor Relations Act (NLRA) of 1935, non-supervisory union and non-union employees are already allowed to talk about their salaries at work and employers are prohibited from imposing “pay secrecy” policies whether or not they do business with the federal government. The Pay Transparency Rule takes it a step further and extends protections to supervisors, managers, agricultural workers and employees of rail and air carriers.
Many companies have had a long tradition of keeping compensation secret. The Department of Labor Women’s Bureau disseminated a fact sheet on pay secrecy which stated “…nearly half of all workers nationally reported that they were either contractually forbidden or strongly discouraged from discussing their pay with their colleagues…” The Final Rule requires the elimination of both formal and informal pay secrecy policies.
What is different about the two laws?
The penalties for failing to abide by the Pay Transparency Rule are much more serious than violating the NLRA. The risk of losing government contracts is more motivation than having to pay back pay to wrongfully terminated employees and to offer former employees their old jobs back. Even though the NLRA remedies are adequate, most employees were not aware of their rights under that law. Because of this, gag rule and pay secrecy policies have been able to flourish.
Also, most employees were not aware of the NLRA and were following their employer’s request not to share compensation information. That is why one of the required components of the Pay Transparency Rule is that of communication to applicants and employees.
Since understanding the Pay Transparency Rule is critical to ensure that your managers are aware of the rights of their employees and do not create discriminatory outcomes, we suggest that you design your training using as many examples as possible. Here are a few questions for discussion in an interactive presentation.
- If during the interview process an applicant asks an employee about their pay and the employee shares what they were paid upon hire and what they currently are paid, is it okay if the applicant uses that information during the salary negotiation process? Yes, and you cannot retaliate against the candidate for having that information and using it to their advantage. You also cannot discipline the employee for sharing this information.
- Is it okay for the HR Manager to share his own compensation package with his colleagues? Yes, but he cannot share compensation information about other employees if compensation is an essential job function.
- If an employee with compensation as an essential job function shares compensation data with a co-worker who then shares it with another co-worker, can you discipline any of these employees? Only the person with the essential job function can be disciplined. Even if the information is communicated improperly, once it is out, you cannot discipline employees for spreading the information.
There is nothing clear cut about the Pay Transparency Rule and therefore, opening up the discussion and providing training scenarios will help clarify what can be discussed and by whom. This is particularly important if the Rule changes your internal procedures regarding compensation communications.
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.
The Federal Government’s United Front Against Religious Discrimination
The Department of Justice (DOJ) appears to be spearheading this effort, but it is by no means alone. Joining the DOJ are the EEOC, the OFCCP (of course), the Departments of Education and Homeland Security, the DOJ’s Civil Rights Division, the FBI, Office of Justice Programs, Executive Office of US Attorneys and Community Relations Service. The initiative will, in the beginning be comprised of several roundtable discussions with community leaders and civil rights leaders to “identify key priorities”. In fact, the initiative is already underway, with the first roundtable discussion having already occurred on March 8 in Newark, NJ, which tackled bullying and religious discrimination in schools. You can find remarks made that day by the head of the DOJ’s Civil Rights Division, Vanita Gupta here.
Here are just a few other related topics to be addressed at subsequent roundtables:
- preventing and prosecuting religion-based hate crimes targeting individuals and houses of worship in Dallas, Texas;
- religious discrimination in employment in Birmingham, Alabama;
- religious discrimination by local zoning officials against congregants seeking to build places of worship in Detroit, Michigan;
- bullying and religious discrimination in schools in Palo Alto, California.
…you can all but count on hearing about steps you will be expected to take – in effect more affirmative action – to combat religious discrimination in your workplace.What does this mean for employers in general and government contractors in particular? Given the joint involvement of multiple federal agencies, and given the involvement of both the EEOC and the OFCCP, you can expect to be hearing more about this initiative from both the EEOC and the OFCCP. When you add to that the particularly proactive OFCCP, you can all but count on hearing about steps you will be expected to take – in effect more affirmative action – to combat religious discrimination in your workplace. The OFCCP has shown a pattern in recent years of tailoring its Compliance Evaluations – and in particular the document requests that come in conjunction with them – to its stated priorities. You can therefore expect to see a change in the complexion of the OFCCP’s enforcement efforts and the documents you may be expected to produce if you are selected for a Compliance Evaluation.
7 Facts about Religious Discrimination*
- Since 2010, the EEOC has recovered approximately $4,000,000 (as well as important injunctive and other case-specific “make whole” relief) for victims of religious discrimination through its litigation program.
- Since 2010, religious-related lawsuits have involved workers in all segments and sectors of the workforce – e.g., in healthcare, social services, hospitality, retail, staffing, manufacturing, wholesale supply, energy, and food/beverage service, among others.
- Violations have involved a variety of fact patterns, including:
- Refusing to hire or firing religious workers after learning of their religion;
- Discharging workers who take leave for religious-related events (such as observing the Sabbath);
- Failing to accommodate religious-related garb choices;
- Retaliating against employees who requested a reasonable accommodation or complained about religious discrimination.
- Religious discrimination is unequal treatment of an individual or group based on their beliefs.
- In a four-year study of religious discrimination around the world (2006-2010), Christians were the most-discriminated against group, experiencing harassment by the government and society in 168 countries.
- Muslims make up the second largest religious population in the world and were discriminated against in 121 countries worldwide between 2006 and 2010.
- Jews make up less than 1% of the population, yet experience discrimination in 85 countries – the third most of any religious group.
What can and should you do to be prepared? As always, you should be reviewing your policies and procedures, your AAPs and the records you have already created and retained, and then start thinking about what other records you might need to create and retain in order to respond to the OFCCP’s likely actions in response to this initiative. As always, HR Unlimited, Inc. is here to help you with any of your questions, concerns or needs in this area.
For more information, contact Ahmed Younies at (714) 426-2918, ext. 1 or [email protected].
*Source: EEOC & DoSomething.org
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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OFCCP Issues Final Rule on Sex Discrimination
Much of the Final Rule incorporates well-established principles of Title VII (which the OFCCP uses to interpret the nondiscrimination provisions of Executive Order 11246), but contractors should review the regulations and the OFCCP’s comments closely to ensure they are in compliance. The Final Rule becomes effective August 15.
General Provisions
Both disparate treatment and disparate impact on the basis of sex are unlawful. “Sex” includes, but is not limited to, “pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.” Sexual orientation was not included in the definition because it is already expressly listed as a prohibited basis of discrimination under Executive Order 11246. (Of course, gender identity is also now a specifically protected category as well, yet the OFCCP included it in these new regulations.)
Some examples of disparate treatment sex discrimination listed in the regulations include the following:
- making distinctions between married and unmarried individuals that are not applied the same to men and women
- steering women into lower paying jobs
- denying transgender employees access to restrooms or similar facilities designated for use by the gender with which they identify
- treating individuals “adversely because they have received, are receiving, or are planning to receive transition-related medical services designed to facilitate the adoption of a sex or gender other than the individual’s designated sex at birth.”
An example of disparate impact sex discrimination is “relying on recruitment or promotion methods, such as ‘word-of-mouth’ recruitment or ‘tap-on-the-shoulder’ promotion, that have an adverse impact on women where the contractor cannot establish that they are job-related and consistent with business necessity.”
Bona Fide Occupational Qualifications
The regulations recognize that sex may be a bona fide occupational qualification if it is “reasonably necessary to the normal operation of the contractor’s particular business or enterprise.”
Compensation Discrimination
Contractors may not use “any employment practice that discriminates in wages, benefits, or any other forms of compensation, or denies access to earnings opportunities, because of sex, on either an individual or systemic basis . . .” The rule identifies legitimate factors that may influence compensation:
- a particular skill or attribute
- education
- work experience
- position, level, or function
- tenure in position
- performance ratings
The agency specifically declined to address whether use of market forces or prior salaries are legitimate or prohibited factors in setting compensation, stating that the case law in this area is unsettled. Any such practice will be reviewed on a case-by-case basis. Further, the OFCCP will determine whether a factor actually accounts for differences in compensation, as well as whether the contractor applied it consistently without regard to sex.
The regulations provide that similarly situated employees may not be compensated differently because of their sex. Whether employees are similarly situated requires a case- and fact-specific analysis. Relevant factors include “tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, minimum qualifications, and other objective factors.” Employees can be “similarly situated” even if they are not comparable in every one of these respects.
Compensation practices are unlawful if they have an adverse impact on the basis of sex and are not job-related and consistent with business necessity.
Pregnancy-Related Discrimination
The regulations prohibit discrimination “on the basis of pregnancy, childbirth, or related medical conditions, including childbearing capacity,” and adopt the EEOC’s pronouncement that individuals who are pregnant or who have pregnancy-related medical conditions must be treated “the same for all employment-related purposes, including receipt of benefits under fringe-benefit programs, as other persons not so affected, but similar in their ability or inability to work.” In the preamble to the Final Rule, the OFCCP states that lactation is a pregnancy-related condition and, therefore, “certain adverse actions against a lactating employee, including denial of an adequate time and place to express milk . . . will be considered unlawful sex discrimination under this rule.” The EEOC has taken the same position, as have some courts.
Failure to provide workers affected by pregnancy or related conditions with any leave, or providing insufficient leave, may be unlawful if the employer practice or policy has an adverse impact and is not job-related and consistent with business necessity.
Other Fringe Benefits
Fringe benefits must be provided without regard to sex. Fringe benefits include, but are not limited to, “medical, hospital, accident, life insurance, and retirement benefits; profit-sharing and bonus plans; leave and other terms, conditions, and privileges of employment.” In the preamble, the OFCCP specifically noted that “certain trans-exclusive health benefit offerings may constitute unlawful discrimination.” Categorical exclusions of health services related to gender dysphoria or gender transition are considered facially discriminatory by the OFCCP. The agency also commented that “a claim of discrimination due to a contractor’s failure to provide the same fringe benefits to same-sex spouses that it provides to opposite-sex spouses would” violate the Executive Order.
Sex Stereotyping
Contractors are prohibited from basing employment decisions on how the genders are expected to look, speak, or act. Examples in the regulations of discrimination based on sex-based stereotyping include the following:
- taking an adverse action against a woman based on stereotypes about attire
- harassing a male employee because he is “effeminate” or “not masculine”
- treating individuals adversely based on their sexual orientation where such treatment is based on gender stereotypes
- treating individuals adversely based on sex-based stereotypes about caregiver responsibilities, such as demoting a male employee with such responsibilities but not a similarly situated female.
Harassment and Hostile Work Environment
The regulations restate existing EEOC guidelines regarding what constitutes harassment, and include a provision that “harassment because of sex” includes harassment based on gender identity and transgender status, as well as harassment based on pregnancy or related medical conditions.
Best Practices
In addition to outlining conduct that constitutes prohibited sexual discrimination, the OFCCP sets forth a short list of best practices for contractors, which includes the following:
- avoiding gender-specific job titles, such as “lineman” or “foreman.” (This was a per se example of discrimination in the proposed rule. In backing down somewhat in the Final Rule, the OFCCP comments that the EEOC’s policy provides, “where sex-referent language is used in conjunction with prominent language that clearly indicates the employer’s intent to include applicants or prospective applicants of both sexes, no violation of Title VII will be found.”)
- designating single-user restrooms and facilities as gender-neutral
- encouraging both men and women to engage in caregiving activities
- providing appropriate time off and flexible workplace policies for both men and women.
Practical Recommendations
To ensure compliance with these new regulations, contractors should review the following policies and procedures:
- Recruitment and promotion. Ensure that affirmative action recruitment requirements are satisfied. Establish open promotion processes that allow for qualified candidates to express an interest in openings.
- Insurance policies. Eliminate exclusions for coverage related to gender identity or transgender related services.
- Leave and accommodation. Provide that pregnant employees and those with related medical conditions are treated the same as others who are similar in their ability or inability to work.
- Hiring. Require applicants to identify the specific position in which they are interested, and consider them for that position only. This is essential to avoiding allegations of sex-based steering in job placement and compensation.
- Compensation. Analyze your compensation at least annually, and do not limit yourself to grouping by job title because the OFCCP will not. Review the factors that the OFCCP will consider in determining which employees are similarly situated, and conduct your own analyses.
- Other policies and procedures. Review all existing policies for compliance with the new regulations.
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.
The Problem with Availability Analyses
Placement Goals Are NOT the Primary Focus During OFCCP Compliance Reviews
Placement goals for minorities and females are a required element in each affirmative action plan (AAP) that supply and service organizations with federal contracts or subcontracts develop under the Executive Order 11246 regulations. Traditionally, many organizations have spent extensive time and energy on the availability analyses that are an integral part of developing placement goals.
While placement goals may be a required element in Executive Order AAPs, federal contractors and subcontractors need to expend less effort on developing availability analyses and setting placement goals. Instead, they should redeploy their efforts to areas of greater interest to OFCCP. These areas include the following:
- Compensation policies, practices, and decisions, especially where there appear to be disparities in the way in which members of a particular race, ethnicity, or gender are paid
- Hiring practices, especially when there appear to be disparities in regard to the way in which applicants of a particular race, ethnicity, or gender are treated
- Implementation of OFCCP’s regulations regarding protected veterans, including implementation of the outreach requirements and the requirement to list jobs with the Employment Service Delivery System offices
- Implementation of OFCCP’s regulations regarding individuals with disabilities, including implementation of the outreach requirements and the various provisions regarding the use of OFCCP’s mandated survey form
- Implementation of various items connected to OFCCP’s sexual orientation and gender identity regulations and OFCCP’s pay secrecy regulations
”…the sanction for having some type of disparity in regard to compensation or hiring may be a monetary settlement where OFCCP requires that payments be made to a group of applicants or employees…” While OFCCP may ask about placement goals for minorities and females that were not met during a previous AAP year, the agency typically has less interest in whether these placement goals were met than it does in the areas identified above. It should also be noted that the sanction for failing to meet placement goals is typically a requirement to make greater outreach efforts in subsequent AAP years. Conversely, the sanction for having some type of disparity in regard to compensation or hiring may be a monetary settlement where OFCCP requires that payments be made to a group of applicants or employees who were allegedly victims of discrimination.
Placement goals for minorities and females may no longer be a major focus for OFCCP, but this does not mean that federal contractors and subcontractors can abandon their production of the availability analyses that allow for the creation of placement goals. However, federal contractors and subcontractors should be aware of the many issues associated with availability analyses that create questions about the viability of these analyses.
Problems with Availability Analyses – Census Data
There are a significant number of issues associated with availability analyses that involve the external census data that must be used in these analyses. The census data currently used in federal affirmative action plans is data that was first made available in 2012 from the U.S. Census Bureau. However, this data was not derived from the 2010 decennial census. Instead, this data is a compilation of surveys done from 2006 through 2010 via the American Community Survey (ACS). The ACS is a project of the Census Bureau in which portions of the United States are surveyed every year to gather information on a variety of demographic characteristics of individuals and households. The Census Bureau used ACS survey data from 2006 through 2010 to compile the EEO Tabulation 2006-2010 (often called the 2010 EEO Tabulation).
Like products made available by the Census Bureau after the 1990 and 2000 decennial censuses, the 2010 EEO Tabulation contains data on the race, ethnicity, and gender of individuals within various occupation groupings. These occupation groupings are referred to as census categories. There are 488 census categories included in the 2010 EEO Tabulation. Users of the 2010 EEO Tabulation can find data on the demographics regarding individuals who fall into these census categories for various geographic areas. These areas include the United States as a whole, each state, many metropolitan areas, each county in the United States (though some counties are combined with other counties), and cities and other localities of more than 50,000 residents.
The 2010 EEO Tabulation may sound like a comprehensive picture of employment within the United States, but as previously stated, there are a number of issues associated with the data included in the 2010 EEO Tabulation.
- The 2010 EEO Tabulation includes information about a limited portion of the U.S. population. Less than 10% of the population was asked specific questions about employment when completing forms provided by the American Community Survey, and from these results the Census Bureau extrapolated results for the entire area being surveyed. While this form of statistical extrapolation may work well for a large, relatively homogenous population, it leads to less accurate results when there are a multitude of variables that may affect the data. The 2010 EEO Tabulation itself makes this clear by providing information on the margins of error associated with its data. In some cases, particular census categories for certain geographic areas can have margins of error of 50% or higher.
- As noted above, there are 488 census categories used in the 2010 EEO Tabulation to report on all types of jobs in the United States. Responses from citizens who completed the employment portion of ACS surveys were compiled into one of these 488 categories. While this may seem like a large number of categories, there are actually far too few categories to allow for meaningful analyses. This is evident in areas such as manufacturing, where, for example, census category 7750 (Miscellaneous Assemblers and Fabricators) contains a wide variety of dissimilar jobs that have fundamentally different requirements and demographic patterns. Among professional positions, census category 1430 (Industrial Engineers, Including Health and Safety) includes a wide variety of positions that may or may not require an industrial engineering degree. There are also a significant number of job titles that have no meaningful corollary among the 488 census categories. For example, there is no specific census category for professional employees involved in sales support activities.
- Federal contractors are allowed to select from various geographic areas when determining what census data to use, but there is no concrete way to define what the proper recruitment area is for many jobs. With today’s use of the internet as a recruitment tool, applicants from distant geographic areas may express interest in any job, including entry-level jobs, suggesting that broader geographic areas should be used in availability analyses. However, the fact that candidates from distant geographic areas may be able to express interest in positions does not mean that organizations actually hire from a broad-based area, which would suggest the use of a more limited geographic area in availability analyses.
- Census data is not helpful in those circumstances where a major employer is centered in a small geographical area. It is not unusual for one employer to be dominant within a smaller city or county. When this is the case, census data for that city or county will reflect employment levels at the one large company, creating a situation where goals based on external census data become meaningless.
Problems with Availability Analyses – Internal Feeder Groups
The problems associated with the use of census data in availability analyses are not the only issues associated with availability analyses. There are also a number of serious problems associated with determinations about feeder positions to be used in Factor 2 of the availability analyses.
- Many federal contractors routinely use job groups as feeders for other job groups. While this is a quick and simple way to assess internal feeder pools, it is rare that one job group routinely feeds the positions in another job group. For example, some but not all employees from a Professionals job group may feed positions in a Managers job group.
- Even when federal contractors try to attach individual positions to other positions, the data may give an inaccurate picture of the persons who are proper candidates for open positions. It is not unusual for one or more persons in a job title to be excellent candidates for advancement to another position, while one or more persons in that same job title are unacceptable candidates. A truly accurate availability analysis would show only the best qualified candidates as feeders.
- Every analysis of internal availability is affected by the many changes that occur within an organization in any given year. Positions are eliminated; employees change positions; employees leave and new people are hired. Any of these actions may have a significant effect on the demographics and the proper feeders associated with Factor 2.
- Actual expressions of interest typically are not taken into account when determining feeders for a job group. By failing to consider which qualified employees are not interested in certain jobs, internal availability figures may overstate or understate the actual availability of candidates for particular job groups.
Problems with Availability Analyses – Value Weights and Statistical Tests
Federal contractors can do their absolute best to develop proper statistics for use with Factors 1 and 2 in an availability analysis, and then run into a problem when assigning value weights to these factors. Here are the types of questions associated with assigning value weights:
- Should employers rely on a historic assessment of how positions are filled in determining value weights?
- What if the employer has decided to change its historical approach to filling open positions?
- What if there have been significant changes in the workforce?
- What if there have been significant changes in the qualifications for the positions in any particular job group?
Once value weights have been assigned to the factors used in the availability analysis, federal contractors must then decide what test to use in comparing incumbents in each job group to the estimated percentages of minorities and females who are supposedly available for positions in these job groups. Among the tests that organizations can use for this purpose are the following:
- An “any difference” test, where a placement goal is set if the percentage of minorities or females in a job group is at all lower than the relevant availability percentage
- An 80% test, where a placement goal is set if the percentage of minorities or females in a job group is less than 80% of the relevant availability percentage
- A two standard deviation test, where a placement goal is set if the number of minorities or females in a job group is less than expected under a two standard deviation analysis
In using a two standard deviation test or another test of statistical significance in determining where to set placement goals, a federal contractor is much less likely to have placement goals. However, OFCCP may be concerned about situations where there are a small number of minorities or females in a job group (or, in fact, no minorities or females in a job group) and a test of statistical significance does not suggest that there should be a placement goal. Conversely, federal contractors and subcontractors should be concerned about situations where a test of statistical significance is used and a placement goal is set, as OFCCP may interpret this statistically significant variance as an indicator of discrimination against minorities or females.
Considerations for Federal Contractors
In light of the issues associated with availability analyses, what steps should federal contractors take? First and foremost, federal contractors should treat the preparation of availability analyses as a series of strategic decisions. Contractors should ask the following questions:
- “Have we developed an effective job group structure?” If the job group structure developed for a particular affirmative action plan is ineffective, the availability analysis will, by definition, be inaccurate. Developing job groups should be a strategic process where a federal contractor creates a structure that clearly reflects the organization.
- “Can we defend the data we have included in our availability analyses?” Decisions on which census categories and census areas are used for Factor 1, which internal feeder groups are used for Factor 2, and how final value weights are determined should be supported by information about the nature of the contractor’s positions and data the contractor has collected about these positions.
- “What picture of this organization are we trying to provide to OFCCP?” Availability analyses can be manipulated to increase or decrease the percentage of minorities and females through various legitimate means, including the selection of which test to use in establishing placement goals. Availability analyses that lead to more placement goals in an AAP may demonstrate to OFCCP a contractor’s desire to increase the number of minorities and females in the workforce, and thus may work to the contractor’s benefit. Contractors that are making extensive outreach efforts and that effectively consider minority and female candidates should not be afraid of having placement goals. However, more placement goals may also suggest to OFCCP that the contractor has failed to make sufficient outreach efforts.
- “How are we portraying our availability analyses to other individuals who may review these analyses?” There are multiple audiences that may examine a contractor’s availability analyses. Managers and other employees inside an organization may be skeptical of availability numbers that do not correspond to their experience in finding candidates. Plaintiffs’ lawyers may use availability analyses to suggest that there is some form of discrimination occurring. It is important to be able to explain to each audience what the numbers mean, how they are used, and why availability analyses are inherently flawed.
Ultimately, we return to the point made at the beginning of this article: while many federal contractors believe (and many AAP vendors suggest) that availability analyses and the placement goals derived from these availability analyses are the most important part of any affirmative action plan, they are not. OFCCP is often focused on subjects other than placement goals for minorities and females and efforts made to reach these placement goals. Subjects such as compensation disparities, hiring disparities, veterans issues, and issues concerning individuals with disabilities deserve far more attention from federal contractors and subcontractors than availability analyses and placement goals for minorities and females.
Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization’s particular circumstances. All original materials copyright © HR Analytical Services Inc. 2016
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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