This section discusses the on-site review of identified problems related to the Executive Order 11246 AAP and Itemized Listing data, as well as the contractor’s evaluation of its total employment process, identification of problem areas, development of action-oriented programs, and internal audit and reporting system.107 During an on-site review, COs can also review more in-depth whether the contractor has made good faith efforts to remove identified barriers to EEO. For each of the Executive Order 11246 AAP elements, COs must indicate on the corresponding SCER section any problem areas identified during the on-site review and confirmation of any corrective actions taken by the contractor.
The SCER will also include references to relevant evidence COs obtained during the on-site review and recommendations for any appropriate corrective action. It is important to note that COs may need to conduct an off-site analysis of evidence gathered during the on-site review to ensure a full understanding of the contractor’s personnel activities and practices, and to appropriately identify problem areas that may constitute a violation requiring corrective action.
107. FCCM 1F – Review of Executive Order AAP and Itemized Listing Data for Acceptability.
During the desk audit, a CO examines the contractor’s AAP and Itemized Listing data to determine completeness or whether the contractor included all the required elements, and whether the Executive Order AAP and support data are acceptable. Part B of the SCER is used to report any problems in these elements. Before going on-site, the CO develops an On-Site Plan that reflects how the CO will address the identified problem areas during the on-site review.108
As part of the on-site review, COs must assess the contractor’s implementation of its AAP(s). Often, the entrance conference will include a discussion of unresolved AAP deficiencies, especially if the official responsible for preparing and implementing the AAP(s) is present. During this discussion, the CO also explains which aspects of the program are unacceptable and why they are unacceptable. The CO will also request that the contractor provide any additional information or documentation that the CO needs that the contractor did not provide before the on-site review.
108. See FCCM 2C03 – Onsite Plan.
The contractor’s appointment of a person to be responsible for implementing the AAP must be an executive who has the authority and resources to ensure that the AAP is put into practice. COs must obtain a copy of the responsible official’s position description to ensure that it includes implementing the AAP. During the interview, the official responsible for the AAP’s implementation must describe how the specific provisions of the AAP are implemented. The roles of the interviewed officials in developing and implementing the AAP must be the same as specified in the written AAP. If they are not the same, COs must ask the contractor for an explanation.
The contactor’s in-depth analysis of its total employment process in its AAP should indicate whether and where impediments to EEO exist based on its utilization, personnel activity (e.g., applicant flow, hires, terminations, promotions, other personnel actions), compensation analysis, and selection procedures. In evaluating these employment processes, COs determine whether there are any disparities based on race, sex or ethnicity.
During interviews with individuals who contributed to the development and implementation of the AAP, and individuals who are involved in the hiring or selection process, COs must discuss the contractor’s identified problem areas to determine how the contractor identified each problem, the scope of the problem, what solutions the contractor implemented and the effectiveness of the actions taken.
COs must also specifically examine records on the contractor’s employment activity, and selection criteria and processes to understand the contractor’s total employment process, and verify whether the contractor identified all of the impediments to EEO. Questions that may be useful to COs are provided below.
- Did the contractor review its selection criteria?
- Did the contractor apply the criteria in a nondiscriminatory manner and determine whether the selection criteria might have an adverse impact?
- Did the contractor perform validity studies on any criteria found to have an adverse impact, and did the contractor properly determine the criteria to be job-related and consistent with business necessity?
- How frequently does the contractor review selection criteria?
- How does the contractor document the review?
- Do the contractor’s efforts comply with the UGESP at 41 CFR Part 60-3?
- Did the contractor ensure that the officials and managers responsible for applying selection criteria and procedures are familiar with, and are implementing, the contractor’s EEO policies? Does the contractor provide training? If so, how frequently is training provided?
In its AAP, the contractor should identify concentrations and absences of any specific protected group within its workforce. During the on-site review, COs must seek to identify any job titles for which there are significantly high or low representations of any protected group. COs must incorporate questions regarding these circumstances into the interviews with the contractor’s supervisors and employees.
COs must remember to record either their confirmation or description of problem areas identified in Part B of the SCER. The SCER must also include a description of any identified or implemented problem resolutions.
Contractors are required to design action-oriented programs to address any specific barriers to EEO that are identified during the contractor’s in-depth analysis of its total employment process. The programs should specifically describe who is responsible for implementing the program, what actions the contractor will take, and when and how the program will work.
For the programs to be effective, contractors must ensure that they are doing more than following the same procedures that previously produced inadequate results. COs must use the on-site review to gather the information they need to determine whether the contractor identified all the impediments to EEO.
The on-site review often illustrates the contractor’s compliance with this requirement when COs investigate other issues. For example, in requesting copies of position descriptions and discussing them with personnel, a CO can determine how recently the contractor reviewed the descriptions; if the descriptions are accurate; and if the contractor’s selection process screens for the knowledge, skills and abilities related to the position descriptions. If the descriptions are not accurate, this may be indicative of a problem area. Additionally, when the CO questions interviewees like the contractor officials, employees and third parties about the contractor’s recruitment and outreach efforts, the CO can obtain information related to the action-oriented nature and relative success of these efforts.
During an on-site review, COs have the opportunity to evaluate whether the contractor made good faith efforts to remove identified barriers to EEO, expand employment opportunities and produce measurable results. COs must assess good faith efforts on a case-by-case basis, taking into account all of the relevant facts and circumstances. However, in most situations, good faith efforts will produce positive, measurable results. When a contractor’s efforts have not produced such results, COs must ask the contractor to explain the following:
- Why did the efforts undertaken not produce positive, measurable results?
- Did the contractor make additional or alternative efforts?
- If the contractor took additional or alternative efforts, and they did not produce positive, measurable results – why?
During the desk audit, COs evaluate the contractor’s past goal attainment and progress on meeting current goals, and identify any goal areas requiring further evaluation of good faith efforts. To make informed judgments about the quality of the contractor’s good faith efforts, COs must be familiar with the local area’s community resources, a list of which is maintained in each field office. COs should also be familiar with the Employment Referral Resource Directory (ERRD) maintained on the OFCCP website.109 The list of community resources may include nonprofit groups, EEO organizations, faith-based groups and caregiver support groups that can assist contractors in attaining their goals.
During the on-site review, COs explore the contractor’s good faith efforts to address all identified problem areas through interviews with contractor officials, employees and other pertinent parties.110 For each of the activities listed below, COs must identify and obtain documentation that provides evidence of the extent of the contractor’s good faith efforts.
a. Good Faith Efforts – Internal Placements. For internal placements through actions like hiring and promoting current employees, good faith may include the contractor’s efforts to address barriers to opportunities for women and minorities. Possible areas of inquiry on this point are listed below.
- Disseminating Information about Internal Opportunities. Are job openings posted? If so, are they posted where all potentially eligible employees would see them? Are all jobs posted, or only certain jobs or classes of jobs? Why? Are jobs posted promptly? Is there adequate time to apply?
- Providing Training Opportunities. Does the contractor provide apprenticeship programs? On-the-job training? Tuition reimbursement? If so, for which employees are these opportunities available? Are training opportunities provided without regard to sex, race or ethnicity? Do participation rates vary by sex, race and/or ethnicity and, if so, why?
- Providing Counseling and Encouraging Employees to Apply for Internal Openings. How does this occur? How often? What is included in the counseling or encouragement? Does the contractor periodically assess whether its efforts are successful? Are counseling and encouragement available for caregivers without regard to sex, race or ethnicity?
- Recruiting Externally into Feeder Job Groups. What recruitment efforts is the contractor making? What resources is the contractor using?
- Reviewing Selection Criteria and Selection Procedures. Did the contractor review its selection criteria and determine whether it is applying them in a nondiscriminatory manner? Do the selection criteria have a disparate impact? How does the contractor document the review? Did the contractor ensure that the officials and managers responsible for applying selection criteria and procedures are familiar with, and are implementing, the contractor’s EEO policies? Is the contractor providing training? How frequently?
b. Good Faith Efforts – External Placements. For external placement opportunities, evaluation of the contractor’s good faith efforts may include exploring the below areas.
- Recruitment Sources in the AAP. Does the contractor use the recruitment sources listed in its AAP to ensure that its recruitment will reach minorities and women? If so, when and how? How does the contractor track the results that each recruitment source yields? This inquiry includes the CO contacting at least some of the listed organizations to confirm and assess the contractor’s use of the organization as a recruitment source.
- Using Other Recruitment Sources. Does the contractor use other recruitment sources that are not listed in its AAP to ensure that its recruitment will reach minorities and women? How does the recruitment source provide assistance and support regarding caregiver issues? What are the recruitment sources? How useful have they been?
- Using the Media. How are job openings advertised? Among its advertisements, does the contractor advertise in publications or other media that are targeted to minorities and women? If so, which ones?
- Recruiting at Schools and Universities. Does the contractor’s recruitment at high schools, colleges, and universities include those that enroll large numbers of minorities and women? If so, which ones?
c. Good Faith Efforts – Applicant Flow Data. Applicant flow data may provide useful documentation about the effectiveness of the contractor’s good faith efforts, as can internal bid lists and applications for posted job openings.
- Increased Representation Rate. Does either the applicant flow data or the bid lists, or both, show an increase in previously underrepresented groups in the applicant pool? If so, for what positions did this occur?
- Decreased Representation Rate. If there are no changes, or there are decreases in representation, what alternative actions have the contractor taken or proposed to take in the future?
COs must record findings on the contractor’s good faith efforts in Part B of the SCER, and include supporting documentation and other relevant evidence in the case file. This evidence includes materials such as copies of correspondence, job orders, bid lists for posted job openings, contractor recruiting manuals, relevant pages from labor agreements, employee manuals, and summaries of conversations and interviews with contractor representatives, employees, applicants and recruitment source contacts.
109. The ERRD is available at https://ofccp.dol-esa.gov/errd/ (last checked September 10, 2019). Also, see FCCM 1B08 for a discussion of community resources.
110. See also FCCM 1L – Analysis of E0 11246 AAP: Goals Progress and Good Faith Efforts.
2G05 Internal Audit and Reporting System to Measure Effectiveness of Total Affirmative Action Program
The contractor must design and implement internal audit and reporting systems that measure the effectiveness of the total AAP. During an on-site review, COs must ask appropriate officials, including management, how the contractor conducts its audits and request documentation of how the contractor reports the results of internal EEO and affirmative action audits. COs must request documentation in the form of copies of reports or copies of minutes of meetings.
Below are several examples of relevant questions COs should ask contractors about their auditing and reporting system.
- How does the contractor audit its personnel activity to ensure the nondiscrimination policy is carried out?
- Who is responsible for conducting the audit?
- What is involved in the audit?
- How frequently does the contractor conduct the audit?
- What is the schedule for the contractor’s report on whether and to what degree EEO and organizational objectives are obtained?
- When and how is the report reviewed by each level of management? Do the CEO and other high ranking officials receive the report?
- What types of recommendations have been made to improve when the report indicates that the total AAP is ineffective?