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by Kurt Ronn

Every new year brings new OFCCP audits, and it is important to be proactive. Here are ten areas to consider when performing a self-audit of your recruitment practices.

1. Test drive your career site with ADA compliance in mind. Bringing a career site up to OFCCP accessibility standards should not take a large implementation team or a significant budget if you follow a few easy steps. Begin by looking for things that will help disabled individuals on your career site such as adding alternate text attributes to all pictures and text descriptions of videos. Many sites overlook labeling graphics.

Without the proper text labels the photos are meaningless to a visually impaired individual. Many websites use pictures as buttons without translatable text, so these individuals will not know where to click. A common example of this is a button used to allow candidates to "apply now" where the text on the button is an actual picture file versus html text laid over the picture. Without the text label, the button is unidentifiable and therefore unusable to a visually impaired person.

In addition, some commonly available applicant tracking systems do not make it easy for visually impaired applicants to finish applying when there are prescreening questions attached to an application form. Sometimes, the prescreening questions do not show up in a text browser. Instead of the question, only the question number is translated, i.e., 1, 2, 3. A visually impaired person using a text browser would fill out the application form successfully, but would be unable to complete the application due to the inability to access the prescreening questions. To uncover some quickly fixable issues like these, employers should review their career site with a text browser to experience what a visually impaired person experiences. A text browser converts the graphic website to only text. Note that a free text browser application, WebbIE, is available at

If your website offers accessibility for disabled individuals, make sure you are fully compliant by providing a clear and prominent process for individuals to request reasonable accommodations during the application process. Add a phone number and e-mail address on the first few candidate pages so it is easy to request an accommodation. This low-cost step helps ensure your website is compliant and can avoid the costly alternative of replacing the existing system. One main thing to consider when creating an applicant accommodation process is the process should be integrated in a way that will not adversely affect the applicant's possibility for employment. So make sure someone promptly responds to the request, or you may be unfairly disadvantaging applicants.

2. Review and renew your outreach to veterans and disabled individuals. Veteran and disabled veteran employment is receiving renewed attention during audits. Employers must ensure at a minimum that their posting process is achieving a good faith attempt to get to the state or local workforce agencies. To ensure your postings are accurate for federal listing requirements, randomly select 10 jobs, and go to your

state or local workforce agency and check to see if the positions are posted. Just because you requested a posting does not mean that it was actually posted.

3. Test your tests. OFCCP has made it very clear they are looking at all tests in the recruitment process to determine if the tests have grounds for a failure to hire case. Over the last several years, OFCCP generated over 90 percent of their settlements from failure-to-hire cases.

Companies that currently use tests should take a close look at them as shown by the case against Gerber. OFCCP required Gerber to pay over $900,000 in back wages and make 61 jobs available to the affected class. All of this was due to a test that caused adverse

impact on entry-level jobs. After extensive review of the tests, OFCCP found there was insufficient evidence to show Gerber's test was valid for selecting entry-level workers.

To avoid this government contractors should seek proper guidance and use a phased approach of validating the test, roll out the test to gather information only to prove the validation, and then roll out the test for its intended purpose with continued monitoring.

4. The devil is in the details. Government contractors need to know what data they have available in the event OFCCP requests additional data or the contractor is selected for a comprehensive compliance review. OFCCP has a record number of audits to process this year, coupled with the introduction of the quality control audits; it is imperative contractors be familiar with their recruitment process and what is being tracked. Be  familiar with your data, access your applicant tracking system, review applicants for a job by recruitment step or stage, and determine if there is data available to explain the recruitment process. Many employers will find themselves looking at a sea of data that either shows they are not tracking in their system or recruiters are not following company process.

5. Make sure your knockout questions are not going to knock you out in your next audit. Take the time to review your applicant tracking system to see if prescreening or knockout questions are used as part of the application process. If you are using these types of questions, determine if they are evaluating for basic requirements or preferred requirements. If preferred requirements are used, these questions should be removed from the initial screen, as OFCCP will view this as a selection process. All selection processes

need to be monitored for adverse impact. While it is not unlawful to use valid preferred requirements to select the best applicant, if they are used early in the recruitment process, they can increase the applicant pool and increase the risk of adverse impact.

6. Look for low applicant-to-hire ratios for one job. This could trip OFCCP's 1-to-1 hiring threshold. Once the OFCCP identifies 1-to-1 problem jobs, they could request more data to determine if this is a recordkeeping issue or an issue in which there was only one applicant to one hire (i.e., an opportunistic hire). In a typical affirmative action plan, a limited number of 1-to-1 hires are acceptable; however, when a high percentage of jobs are 1-to-1 hires, a problem could result during a compliance review. The problem could be exacerbated if the jobs that have 1-to-1 hires adversely impact their respective job groups.

7. Reign in your agencies. Do you know how your temp-to-perm, retained and  contingent staffing firms are recruiting for you? Both OFCCP and EEOC are turning more of their attention to investigating staffing firms and their impact on employers' hiring practices. Employers should take the time to ensure their recruitment partners are executing a compliant recruitment process.

8. Review your government contracts for American Recovery and Reinvestment Act of 2009 (ARRA) funds. You may receive an audit that is not part of the normal scheduling process. If you are receiving funds through ARRA contracts, be ready for an OFCCP audit. Recognize that OFCCP is not required to follow the traditional active case management process and may come on-site as the first step.

9. Do not forget compensation. Currently compensation cases make up a small percentage of the OFCCP settlements; however, OFCCP is committed to increase the focus on comp data. OFCCP will want to review additional data if they find anything wrong with item 11 data. In many cases, OFCCP has been requesting extra compensation data (i.e., 12-factor data) even when there are little to no indicators of potential discrimination.

10. Be prepared to roll out the new poster requirement for Executive Order 13496, which requires all government contractors to post that all employees have the right to unionize. Government contractors should be prepared for DOL to come back shortly with the final rule on the posters; employers need to know how they plan to handle the role out of the posters; as well as, manager training.

Proactively auditing your existing practices is the best way to mitigate risk and improve your recruitment practices. In addition the process improvements and better execution will help you attract the best and most diverse talent for your organization.


View original publication in the Affirmative Action Solutions Newsletter - The Need to Know section