Berkshire’s consultants are attending the NILG 2020 Virtual Conference Webinar Series, which is a series of complementary webinars in July and August. Below is our round up of a few sessions from this week:
New Considerations in Recruiting:
Due to COVID-19, we are changing the way we recruit for positions with the use of phone and video screening. While there are pros and cons to this new “normal”, there are a few baseline protocols to keep in mind. First, check your biases. You may see candidates in an informal setting so disregard the surroundings, such as personal sport team memorabilia, that could influence how you feel about the candidate. Be aware not every applicant’s internet may be the same as the business and do not judge for poor quality. Don’t make biased judgments on appearance, religion, gender ID, etc. and make sure you are focused on the interview. Make sure staff is trained on how to handle any questions regarding disabilities to avoid distractions and judgments. While conducting the interview be aware that permission may be needed to record the interview. It is recommended to do “Mock Interviews” with employees who are responsible for conducting the interviews.
When it comes to biometrics there is not a universal definition of what biometrics are. However, generally speaking biometrics is the overall behavioral human characteristics that can be used digitally to identify a person to grant access to systems, devices, or data. Some states have biometric regulations and many other are planning for them because of privacy concerns and there is a federal bill proposed on the topic. Facial recognition is a common type of biometric data and this technology has already shown to be inaccurate for Blacks and Asians. From an employment perspective, when it comes to screening applicants, make sure the screening is not discriminatory. You want to ask yourself what you are measuring for and is there a validation study that can be done proving the test measures what it was designed to measure. Best practices for biometrics is to have a policy, know the biometric laws in your state and know exactly what you are measuring. Companies should proceed with caution.
The agency provided an update on their Fiscal Year 2020 enforcements. All conciliation agreements are posted on the OFCCP website. The agency has had an increase in letters of compliance from 2019 (86.01%) to 2020 (94.31%). The agency also seems to be consistently decreasing the amount of conciliation agreements but the settlement amounts for financial agreements have largely increased over the years. The average financial settlement amount has gone from $200,000 in 2007 to $900,000 in 2019. In FY2020, the agency had 24 posted Financial Agreements. The total settlement amount for these 24 financial settlements is $17.5 million, with most of the cases resulting from hiring with over $10.2 million in back-pay and interest. Compensation, compensation + hiring, and failure to provide accommodations make up the rest of the over $7 million in settlements.
When it comes to technical violations the agency has 54 posted agreements in FY2020. The most common were violations on outreach & recruitment. While the others were violations on record keeping and listing with the state. The number of OFCCP Administrative Complaints has also decreased, it is suspected that this is due to the ERCA’s (Easy Resolution Conciliation Agreements). Since the ERCA inception in 2018 over 21 have been signed and have secured about $40 million in back-pay and an additional $5 million in salary adjustment commitments over the next five years. The agency feels this is a positive program for both the contractor and agency as it saves resources and there are no press releases regarding these agreements.
The Mediation Directive issued in April 2020 looks to provide guidance on instances OFCCP will be looking to refer cases to mediation. The agency feels mediation is a good process for resolution and can provide an opportunity for contractor and the agency to work out remaining differences with a neutral party. Mediation can occur at any stage of the process and 100% of cases in mediation have been resolved.
The agency also decreased the average amount of time for a desk audit to about 35 days in 2020. In FY 2020 the agency has also released the new self-id form for the 503 regulations and began scheduling the 503 and VEVRAA focused reviews. Looking forward to the rest of FY2020 and FY 2021, there will be more focused reviews regarding promotions as well religious and IWD accommodations. The agency will continue to focus on hiring and compensation practices as well as terms and conditions of work for employees.
What to do when you’re on the CSAL:
This webinar gave a list of how contractors can prepare themselves if they receive a CSAL. The top things to do when you receive a CSAL are below:
- Compose yourself
- Don’t ignore the Letter, put in the time now to prepare
- Call Some Friends – Engage with legal counsel, AAP vendor, compensation and recruiting departments
- Review the Scheduling Letter – Identify what type of review you are selected for and review the itemized lists that accompany the specific type of review
- Get AAP in Shape – Get your AAP complete before the letter and restructure job groups now, rather than later
- Pick Low Hanging Fruit – Knock out the easy questions/items first (CBAs, EEO-1 reports, etc.)
- Adverse Impact Check – Look at your Adverse Impact and identify issues, start looking for explanations, review applicant dispositions, and ensure accurate data on first submission!
- Compensation – Allow for adequate time to pull and compose relevant comp data.
- Good Faith Effort & Outreach – Make sure you document all outreach as well as review 503 and VEVRAA audit and reporting documents. Show how you try to resolve goals with outreach.
- Think Beyond the Letter – Check all policies, postings, tag lines, etc. Take time to educate staff and remember the unique situation COVID-19 brings when employees are working from home.
- Stay Positive
Berkshire will continue to report on NILG sessions throughout the summer.