When Good Faith Efforts Are Not
Enough: Outreach and Positive
Recruitment
Candee J. Chambers, SPHR, SHRM-SCP, Sr. CAAP
VP Compliance & Partnerships
DirectEmployers Association
(317) 874-9052
[email protected]
OFCCP Compliance
§ 4212/VEVRAA Job
Delivery and Reporting
§ 503 Assistance
Partner Relationship
Manager (PRM)
NASWA Partnership
Audit Support and
Advocacy
Agenda
I. Good Faith Efforts Are Not Good Enough
Anymore
II. What Is Meant By Outreach And
Positive Recruitment?
III.What Is An Outreach Assessment?
IV.OFCCP 2015 Enforcement Statistics
V. Mandatory Listing Requirement
I. ‘Good Faith Efforts’ Are Not Good
Enough Anymore
Aren’t Good Faith Efforts the requirement?
NO! Good Faith Efforts (GFE’s) are only the
requirement for your Executive Order 11246 AAP for
Minorities and Females (See 41 CFR §§§ 60-1.12(b), 60-2.16(a)
and 60-2.17(c))
Pat Shiu, Director of the OFCCP, has said that ‘Good
Faith Efforts are not good enough!’
OFCCP Compliance Officers don’t even ask for
evidence of Good Faith Efforts anymore – they want
proof of your ‘Outreach and Positive Recruitment’
I. ‘Good Faith Efforts’ Are Not Good
Enough Anymore (Con’t)
Aren’t Good Faith Efforts the requirement?
[41 C.F.R. § 60-1.12(a) Record Retention]
(b) Affirmative action programs. A contractor establishment required under § 60-1.40 to develop and
maintain a written affirmative action program (AAP) must maintain its current AAP and documentation
of good faith effort, and must preserve its AAP and documentation of good faith effort for the
immediately preceding AAP year, unless it was not then covered by the AAP requirement.
[41 C.F.R. § 60-2.16(a) Placement Goals]
(a) Purpose: Placement goals serve as objectives or targets reasonably attainable by means of
applying every good faith effort to make all aspects of the entire affirmative action program work.
Placement goals also are used to measure progress toward achieving equal employment opportunity.
[41 C.F.R. § 60-2.17(c) Action-Oriented Programs]
(c) Action-oriented programs. The contractor must develop and execute action-oriented programs
designed to correct any problem areas identified pursuant to §60-2.17(b) and to attain established
goals and objectives. In order for these action-oriented programs to be effective, the contractor must
ensure that they consist of more than following the same procedures which have previously produced
inadequate results. Furthermore, a contractor must demonstrate that it has made good faith efforts
to remove identified barriers, expand employment opportunities, and produce measurable results.
Emphases added.
II. What Is Meant By ‘Outreach And
Positive Recruitment?’
Outreach is not electronic – it’s all about
communication
Lots of confusion about ‘posting’ jobs on job boards
Outreach is more than posting jobs
Requirement is local outreach and building relationships with outreach
partners
Very difficult to do if you are only sending your jobs through
various job boards
What contact information can you provide to the OFCCP as
documentation of relationships you have built?
What events can you share in which you have participated?
Sending your jobs to diverse job boards is a ‘nice to have,’ but it does
not show that you have built the required relationships
II. What Is Meant By ‘Outreach And
Positive Recruitment?’
Outreach example for § 503:
“41 CFR §60-741.44 Required contents of affirmative action programs.
Acceptable affirmative action programs shall contain, but not necessarily
be limited to the following elements:
(f) External dissemination of policy, outreach, and positive recruitment—
(1) Required outreach efforts. (i) The contractor shall undertake
appropriate outreach and positive recruitment activities such as
those listed in paragraph (f)(2) of this section that are reasonably
designed to effectively recruit qualified individuals with disabilities. It is
not contemplated that the contractor will necessarily undertake all the
activities listed in paragraph (f)(2) of this section or that its activities will
be limited to those listed. The scope of the contractor's efforts shall
depend upon all the circumstances, including the contractor's size and
resources and the extent to which existing employment practices are
adequate.” (Emphasis added).
II. What Is Meant By ‘Outreach And
Positive Recruitment?’ (Con’t)
Building relationships with outreach partners
What does this mean?
Send emails regularly with updates about hiring needs
Make phone calls to check in – get to know them
Do NOT address letters ‘To Whom it May Concern’
OFCCP will know you don’t have a relationship built with these
groups
Invite partners to open houses, company tours, special events
Offer to do mock interview or resume writing workshops
Do not just send jobs to diverse job boards
What will this get you?
Can you track where these candidates have come from?
II. What Is Meant By ‘Outreach And
Positive Recruitment?’ (Con’t)
Do NOT forget outreach for females and minorities
Forget the term ‘Good Faith Efforts.’ Debra Carr recently told employers at
the USBLN to “Get the term ‘Good Faith Efforts’ out of your vocabulary.”
Good Faith Efforts were only part of the EO 11246 regulations (for females
and minorities); Good Faith Efforts are NOT required for protected veterans
and individuals with disabilities – it is now referred to as ‘Outreach and
Positive Recruitment’
Remember: Pat Shiu has always said ‘Good Faith Efforts are not good
enough’
Focus has just shifted to protected veterans and
individuals with disabilities
Outreach for females and minorities is still a requirement
Outreach requirement for veterans and individuals with disabilities has
always been a requirement
Focus used to be on females and minorities, just like it is now on protected
veterans and individuals with disabilities
II. What Is Meant By ‘Outreach And
Positive Recruitment?’ (Con’t)
Important: Recent Confused Internet
Blogs By High Volume OFCCP Advertiser
503/VEVRAA GOOD FAITH EFFORTS
CONTRACTOR SURVEY
CONTRACTOR FEEDBACK ON 503/VEVRAA GOOD
FAITH EFFORTS – ACCOUNTABILITY IS KEY
III. What Is An ‘Outreach Assessment?’
Have your efforts resulted in attracting and hiring qualified
applicants with disabilities and/or protected veterans to your
company?
Are you getting qualified candidates? If you aren’t, figure out why
not
Do you need to provide a better explanation of your company and
your hiring process to your outreach partners?
Don’t wait until you put your AAP together to evaluate your
outreach successes and failures
Do an ongoing review – if something isn’t working, try something
new
Do you need to do more training for your recruiters and hiring
managers?
III. What Is An ‘Outreach Assessment?’
(Con’t)
Criteria For Contractor to Evaluate Outreach/Recruitment
Activity:
1. Did the activity attract qualified applicants with disabilities and/or
protected veterans?
2. Did the activity result in the hiring of qualified individuals with
disabilities and/or protected veterans?
3. Did the activity expand Contractor’s outreach to individuals with
disabilities and/or protected veterans in the community?
4. Did the activity increase Contractor’s ability to include individuals
with disabilities and/or protected veterans in its workforce?
III. What is an ‘Outreach Assessment?’
(Con’t)
SAMPLE EFFECTIVENESS ASSESSMENT OF OUTREACH AND RECRUITMENT
EFFORTS AS TO PROTECTED VETERANS
[41 C.F.R. §60-300.44(f)(3)]
Part I
III. What is an ‘Outreach Assessment?’
(Con’t)
SAMPLE EFFECTIVENESS ASSESSMENT OF OUTREACH AND RECRUITMENT
EFFORTS AS TO PROTECTED VETERANS
[41 C.F.R. §60-300.44(f)(3)]
Part II
I
Evaluation
X individuals expressed interest, Y qualified individuals submitted
application, Z number of conditional offers of employment provided
Referral to us of PV job seekers increased
In this AAP Year 2014, the Data Metrics reveal we were not successful
in recruiting Protected Veterans to apply in proportions equal to or
greater than the 7% availability U.S. Federal Government researchers
predict (5% applied vs. 7% available). However, our hiring percentage
of Protected Veterans (11%) nonetheless substantially exceeded the
applicant flow of Protected Veterans (demonstrating the high quality
of the relatively few Protected Veterans available to us). Happily, our
DirectEmployers partnership also increased our Protected Veterans
applicant flow, so we did make some progress in 2015 to increase our
applicant flow over prior years.
J
Conclusion
ACTION ITEM: Poor source pool for us.
Discontinue.
ACTION ITEM: Worked with DE to add source codes to our ATS
which assisted us in our ability to track where PV’s were finding our
jobs. Met our job listing requirements per § 4212 regulations.
Continue.
ACTION ITEM: While we are generally pleased with the recruitment
sources with which we have partnerships, we will discontinue our
partnership with the VA Hospital and discontinue our annual Job Fair
there, but will continue our successful DirectEmployers partnership
and will increase our recruitment pools by adding the following new
ones for Protected Veterans:
III. What is an ‘Outreach Assessment?’
(Con’t)
Final, important note on Outreach and
Positive Recruitment and your
Outreach Assessment:
You will not be cited if you are unable to reach
your Protected Veteran Benchmark or your
Utilization Goal for Individuals with Disabilities
But…You will be cited if you do not try!
IV. OFCCP 2015 Enforcement Statistics
Outreach and Recruitment are the 2nd
most cited violations in 2015
Only .2% away from the 1st most cited
violation – Recordkeeping
Recognize the importance of documenting
your Outreach and maintaining those records
for the required 3 years!
Outreach and Recruitment was the 1st
most cited violation in 2013 and in 2014
IV. OFCCP 2015 Enforcement Statistics
(Con’t)
V. Mandatory Listing Requirement
[See 41 CFR § 60-300.5(a)(2)]
What do the § 4212/VEVRAA regulations require and permit?
The contractor agrees to immediately list (emphasis added) all
employment openings which exist at the time of the execution of this
contract…with the appropriate employment service delivery system where
the opening occurs. Listing (emphasis added) employment openings with
the state workforce agency job bank or with the local employment service
delivery system will satisfy the requirement to list jobs with the
appropriate employment service delivery system.
Does § 503 have a mandatory listing requirement?
No, only the § 4212/VEVRAA Regulations have a mandatory listing
requirement
Contractors must still actively target and partner with organizations
that work with individuals with disabilities to promote job openings
and employment opportunities
V. Mandatory Listing Requirement (Con’t)
“Listing” ≠ “Posting:”
Not synonymous/interchangeable terms
V. Mandatory Listing Requirement (Con’t)
LISTING
Job listing refers to the act
of the federal contractors
transmitting their job
openings to either the local
ESDSs or the state job
bank. This can be done in a
variety of ways (mail, email,
direct entry into state job
banks, automatic indexing,
direct feeds) as long as the
appropriate ESDS system
says it is a valid format and
enables the ESDS system to
conduct priority referrals.
POSTING
Job posting refers to the act
of the state or local ESDS (not
federal contractors) having
received the job listings
supplied by federal
contractors via any of the
methods listed above, and
“posting” those job listings on
the state job bank. Federal
contractors are not required
to post to state job banks, as
long as they can prove “job
listing”, as described above.
Simply posting jobs is NOT an available option to comply with the
§ 4212/VEVRAA Mandatory Listing Requirements
“If you post, but don’t list, you will be cited.”
Melissa Speer, Regional Director, SWARM Region of
the OFCCP, at the ILG National Conference on August 7, 2014
Why is this so important?
Jobs must be listed prior to the posting to allow time for the
LVER/DVOP or Business Services staff to provide the priority
protected veteran referral
If a job is merely posted, or even posted to the state job bank or
local ESDS at the same time it is listed, the protected veteran job
seeker is NOT getting access to the job prior to the non-veteran
job seeker
V. Mandatory Listing Requirement (Con’t)
Why is this so important?
If you are only posting your jobs, how do you
continue to meet your MJL requirements if the job bank
goes down? It has happened!
Some states won’t accept jobs to be posted from
companies on strike. How would you continue to meet
your MJL requirements?
What if the state job bank doesn’t have a ‘hold’ on their
jobs for 24 hours to allow for priority referral of
protected veterans? How are you meeting your MJL
requirements?
Remember, the most important piece of the MJL
requirement is the priority protected veteran
referral!
V. Mandatory Listing Requirement (Con’t)
[41 C.F.R. § 60-300.5(a)6(ii)]
What is meant by ‘all employment openings?’
Includes all positions except executive and senior management
With a salary of not less than $455 per week exclusive of board,
lodging or other facilities;
Whose primary duty is the management of the enterprise or of a
recognized department or subdivision;
Who customarily and regularly directs the work of two or more
other employees; and
Who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other
employees are given particular weight; or
Any employee who owns at least a bona fide 20-percent equity
interest in the enterprise in which the employee is employed,
regardless of whether the business is a corporate or other type of
organization…
V. Mandatory Listing Requirement (Con’t)
Do you have to list jobs for all temporary
employees?
Positions for employees have to be listed,
positions for independent contractors do not
But…beware of joint employment issues!
V. Mandatory Listing Requirement (Con’t)
When is job listing required for temporary employees?
If the federal contractor has delegated “hiring” authority to what it
calls its “temporary employment agencies”
When is job listing NOT required for temporary employees?
If the “temporary employment agency” is merely recruiting (not
“hiring”) for the federal contractor
If the “temporary employment agency” is hiring employees only
for the “temporary employment agency,” then these are not the
federal contractor’s employees – but what if they are covered
federal subcontractors?
What if there is a “joint employment” relationship between
the federal contractor and its “temporary employment agency”
employees?
NOTE: Federal contractors should give this issue special and
careful attention.…if there is a joint employment relationship,
the federal contractor must list.
V. Mandatory Listing Requirement (Con’t)
Why do contractors get asked for ‘job postings’ during
OFCCP audits?
OFCCP and contractors use the terms ‘listing’ and ‘posting’
interchangeably
OFCCP has been getting better at requesting and using the term
‘listing’ lately
Contractors don’t question the request because it is coming from
the OFCCP
What should you do?
Ask why they need a ‘job posting’
Do they really only need a copy of the job description?
How will you know if you don’t ask?
Learn the actual regulations
Push back – they cannot cite you for something that is not in the
regulations - this is very important for you to remember!
V. Mandatory Listing Requirement (Con’t)
What about the Contact Information?
‘…it shall advise the employment service delivery system in each
state where it has establishments that: (a) It is a Federal contractor,
so that the employment service delivery systems are able to identify
them as such; and (b) it desires priority referrals from the state of
protected veterans for job openings at all locations within the state.
The contractor shall also provide to the employment service delivery
system the name and location of each hiring location within the state
and the contact information for the contractor official responsible for
hiring at each location. The “contractor official” may be a chief hiring
official, a Human Resources contact, a senior management contact,
or any other manager for the contractor that can verify the
information set forth in the job listing…’
V. Mandatory Listing Requirement (Con’t)
What about the Contact Information? (con’t)
Was NOT meant to be a ‘Data Dump’ of information sent to the
state workforce job banks
Per Debra Carr – Director of Policy and Program Development
and Kier Bickerstaff, Associate Solicitor (Acting) Deputy
Associate Solicitor (who actually drafted the VEVRAA
regulations and said sending contact information to all state
and local ESDS offices was NOT the intent
Expectation is that contact information is sent with each job
listing or whenever contact information changes
IV. Mandatory Listing Requirement (Con’t)
Responsibilities of Appropriate ESDSR
41 C.F.R. § 60-300.84
By statute, appropriate employment service delivery systems are required to:
Refer qualified protected veterans to fill employment openings listed by
contractors with such appropriate employment delivery systems pursuant to the
mandatory job listing requirements
Required to give priority to protected veterans in making such referrals
ESDS shall provide OFCCP, upon request, information pertinent to whether the
contractor is in compliance with the mandatory job listing requirements
What does this mean?
“…in the interest of insuring that Federal contractors are properly identified so
an ESDS can fulfill its (emphasis added) duty to give priority referral of protected
veterans to (emphasis added) contractors…” (per the VEVRAA preamble)
IMPORTANT TAKEAWAYS FOR OUTREACH
AND POSITIVE RECRUITMENT:
The OFCCP is ONLY focusing on Outreach and Positive
Recruitment
Make sure you do ‘Engaged’ Recruitment!
Meet with potential outreach partners, explain your
companies’ needs
Invite them to tour your facilities so they can see for
themselves the types of jobs you need to fill
Track your outreach
Focus on quality, not quantity
Do a quarterly review – do NOT wait until you are ready to
create your AAP because that is way too late to create new
partnerships
IMPORTANT TAKEAWAYS FOR YOUR
MANDATORY LISTING REQUIREMENT:
There is a BIG difference between Listing and Posting
This is a huge area of misunderstanding among AAP
consultants, law firms and the OFCCP
Learn and understand the regulations – you are only required
to ‘List’ your jobs – NOT ‘Post’ them
If you only post your jobs directly to the state workforce
agency job bank, do you know if they have a 24-hour hold on
your jobs so you are receiving the Priority Protected Veteran
Referral?
Not many states have that hold built into their systems
Networking & Education
Annual Meeting (DEAM)
and Employers Connect
Surveys and Webinars
Industry Expert
Bloggers including
John C. Fox
Pipeline Member
Community
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Thank You!
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Questions?