Our Company No Longer Has Federal Contracts: Should We Still Develop an AAP? by Jim Higgins, Ed.D

I was speaking with a client the other day and the question came up: “If a contractor loses their federal contract and they are no longer under obligation to the OFCCP, should they continue developing and using Affirmative Action Plans and other analyses as if we had a contract?”

This is an important question and it is highly perceptive of the company to ask it. While what I am about to say should not be considered legal advice as I am not an attorney (if you have any doubts, consult your legal counsel), following are points to consider.

Most companies find doing business with the federal government desirable—even if there are administrative complexities that come with federal contracts. While the best thing to do is to maintain a fully compliant Affirmative Action Plan because it makes good business sense, following at least some process that to help facilitate and monitor workplace diversity, documenting the validity of pre-employment selection devices, and monitoring the company’s compensation practices to ensure fairness can be a vital asset when competing for a new federal contract. Additionally, while the company may be able to simplify the procedures it follows to do this it will make it easier to build an existing system into one that is fully compliant when the new contract is awarded.

It is important, however, that your company NOT call your system an “Affirmative Action Plan” or in any way imply that it is “partially compliant” with OFCCP requirements. From the OFCCP’s perspective, there is no “Affirmative Action Plan Lite” (Truesdell, Secrets of Affirmative Action, 2007). From the OFCCP’s perspective, your company is either in compliance or it is not. Therefore, the company should call their system something that will not confuse it with an OFCCP compliant process. For example, it could be called the company’s “Employee Diversity and Equity Initiative.”

Even if there is no intent to compete for federal contracts in the future, a Diversity and Equity Initiative makes tremendously good business sense. Some reasons for this are presented below:

1. A diverse workforce will bring a diversity of ideas, skills, and perspectives to the company. This foster’s creativity and will result in novel solutions that may have never occurred to a workforce that is homogeneous.

2. Identifying groups that are underrepresented will help the company uncover barriers to employment that undermine diversity and reduce the creativity and productivity noted in bullet 1, above.

3. Evaluating and validating the company’s pre-employment tests, promotional examinations, and certification programs will both help ensure that the best person is placed in a job as well as serve as a bulwark against claims of employment discrimination. Conducting a job analysis, which is required to validate pre-employment tests and certification examinations, also provides the information to develop high quality training programs, performance appraisal systems, and developing high quality job descriptions.

4. Regularly monitoring employee compensation practices will help the company to build a positive, highly motivated, and committed workforce. It will also help the company defend against charges of compensation discrimination.
One advantage of setting up a Diversity and Equity Initiative in the absence of federal contracts and the requirement to report data to the OFCCP is that the company can build the system over time. This makes it cost-effective to create the highest quality system in an environment that is not “rushed” by the need to comply with contract requirements.

Should you have questions regarding Affirmative Action Plans, diversity initiatives, test-development, or compensation analysis, please visit our website at www.AffirmativeActionServices.com.

How to conduct layoff’s in a valid and effective manner – By Dr. Jim Higgins, Ed.D.

To me, it is increasingly evident that if the country is not falling back into recession, we are at least heading into more difficult times. Employers ranging from defense to construction, government to the private sector appear to be starting another round of layoffs. Any time an employee is let go, it represents a difficult decision which is fraught with potential legal exposure.

However, there are steps that an employer can take to both protect themselves from legal exposure as well as maximize the likelihood of maintaining the most effective, innovative, productive, and diverse workforce. For this article, we will assume that an employer—after careful deliberation—has decided that they must shrink the size of their workforce for a given division. How should the employer proceed?

Step 1 – Identify those jobs that represent redundancies or which can endure layoffs without affecting the employer’s ability to conduct its fundamental business. This decision must be made with care. Otherwise, the employer may save money “now” at the cost of its long-term survival.

Step 2 – Once step 1 has been completed, conduct a proactive Adverse Impact Analysis (also called a “what if?” Adverse Impact Analysis) to determine whether specific groups of employees are being negatively impacted based on their gender, ethnicity, etc. If Adverse Impact exists, attempt to determine why critical jobs appear to have a different makeup than those considered less critical. Are there barriers to recruitment? Is the difference due to external factors such as differences in the qualified workforce? Are there steps that the organization can take to increase under-represented employee groups’ qualifications for the more critical jobs? If so, create plans to provide these development opportunities or explain the differences.

Step 3 – Within each job that will undergo layoffs, identify the key factors that distinguish between high and low performing employees. Where possible and appropriate, the employer should rely on a job analysis that identifies the knowledge, skills and abilities as well as the level of mastery a qualified employee should have.

Step 4 – Using the key factors identified in step 3, decide which employees will be retained and which will be let go. If two employees are exactly equal in terms of their possession of the key factors, try to make the layoff decision in a random fashion. If the difference in group representation turns out to be large (e.g., far more males than females), consider if there are situations where it appears that a male and female are “identical” in terms of their possession of the key factors. If so, dig deeper and try to determine whether they really are identical. If the retained employee is superior, retain him. If the laid off employee is superior, change the decision to retain her. If males are represented at a higher rate than females and females comprise a larger proportion of the relevant labor force, contact your legal counsel for assistance.

Step 5 – If the sample size is large enough for a job title, consider using the statistical tool known as Binary Logistic Regression to verify that your retain/not-retain decisions are valid. This statistical tool, like multiple regression in compensation analysis, allows the employer to determine whether, after controlling for legitimate job related factors, retention decisions were impacted by the employees gender or ethnicity.

This article was intended to help employers understand a valid process for conducting layoffs. It is not intended to be considered legal advice and all employers are strongly encouraged to make any and all significant employment decisions that could expose the organization to a risk of litigation with the assistance of their legal team.

If you require further analytical assistance on this or any other EEO/AA topic, contact Affirmative Action Services at Info@AffirmativeActionServices.com or call Dr. Jim Higgins at (916) 204-1749.

Visit our website at www.AffirmativeActionServices.com

WARNING! Your Data Is Vulnerable: How To Select Personnel Who Will Protect You From Cyber Espionage

In early May, the Sony Play Station network became the victim of a major theft of customer account data. This was at least partly because one of the leading companies that provides SSL encryption codes saw their data compromised. At end of May saw a very serious attack against took place against some of our country’s most critical defense-related companies. Thousands of cyber espionage attacks are directed toward our country, its infrastructure, and government entities each day.

Many billions of dollars are spent each year on anti-virus and anti-malware software. Companies develop security procedures and may even hire a unit to monitor network intrusions, address threats, and enforce policy. Companies also spend billions in salaries and lost productivity to have their staff attend security-related training. Still, most security breaks take advantage of a single link in the security chain—the individual employee falling for a trap that was set for them by a malicious hacker.

It has been said that “The best defense is a good offense.” Sometimes, however, the best defense is simply that—a good defense. With all the resources spent in an attempt to stay ahead of the hackers (government or otherwise) It is surprising how little time and effort are spent on the most productive and effective tool of all—selecting security minded personnel in the first place!

Dr. Jim Higgins, Ed.D., Senior Managing Director of Affirmative Action Services will be presenting a free webinar exploring the instincts and perceptional factors that exist in each person that makes them vulnerable to hackers and their tools. You will also learn about the tools and techniques of Industrial and Organizational Psychology and how they can be used to help you select security-minded staff while ensuring that your workforce remains diverse, highly productive and successful.

This is another free learning opportunity by Affirmative Action Services, your one-stop EEO consulting firm. To register, copy and paste the web address below into your browser and complete the registration form: https://www2.gotomeeting.com/register/972975411. If you have any questions, please contact Dr. Jim Higgins at (916) 204-1749 of JHiggins@AffirmativeActionServices.com.

Time Is Running Out! Your Window To Participate In The AAS National Job Analysis Closes On June 1, 2011

Affirmative Action Services is conducting a job analysis of the position of EEO/AA Professional. This important study will definitively identify the critical job duties and the important knowledge, skills and abilities required of journey-level professional EEO/AA Professionals.

This information will be based on a national sample and will help federal Contractors and other organizations select the most effective staff who will minimize the organization's legal exposure, assist in the design of effective training programs and performance management systems.

Participants will have the opportunity to participate in a webinar where the findings will be presented. Those who desire to participate need to complete the entire job analysis survey that is available on Affirmative Action Services' website.

To complete the survey, visit www.AffirmativeActionServices.com and click the button at the top, right-hand corner of the page. Should you have questions, please contact Dr. Jim Higgins at JHiggins@AffirmativeActionServices.com.

Affirmative Action Services Conducts Job Analysis To Document To Job Of Affirmative Action Professional: By Dr. Jim Higgins

Human Resources Practitioners and Equal Employment Opportunity (EEO) Professionals generally acknowledge the need to conduct a job analysis upon which to base selection procedures, compensation levels, minimum qualifications, and training programs. This understanding is based on the 1978 federal Uniform Guidelines on Employee Selection Procedures, the courts, and Executive Order 11246.

However, while it is not uncommon to hear about job analysis for jobs like Police Officer, Fire Captain, Analyst, etc., very little has been written with respect to the job duties performed by EEO Professionals themselves or the knowledge, skills and abilities that an EEO Professional must possess in order to be effective on the job. And yet, the role of the EEO Professional in protecting organizations from litigation exposure and selecting the most creative and productive workforce “should” make it one of the most critical jobs to understand.

Affirmative Action Services is conducting a national job analysis of the job of EEO Professional. The results of this study will help federal Contractors and other organizations identify the national consensus of what is required in order to perform this important job. The information will also help organizations compare their own EEO staffing strategies to those of others.

You and your organization are encouraged to complete our job analysis survey. Simply visit www.AffirmativeActionServices.com and click on the job analysis survey link in the upper right corner of the home page.
If you have any questions regarding this survey, please contact Dr. Jim Higgins at JHiggins@AffirmativeActionServices.com or at (916) 204-1749.

Supreme Court To Take On Wal-Mart Discrimination Case - By Dr. Jim Higgins, Ed.D.

On Tuesday, March 29, 2011, the US Supreme Court will consider whether hundreds of thousands of women can band together in an employment discrimination suit against Wal-Mart. In the case, plaintiffs claim that Wal-Mart owes billions of dollars to as many as 1.5 million women who they say were unfairly treated on pay and promotions. Their argument is based, at least partly, on the professional opinions of William T. Bielby, an academic specializing in “social framework analysis.”

The central issue to be addressed is whether Dr. Bielby should have been allowed, in preliminary proceedings, to go beyond simply describing the general research regarding gender stereotypes in the workplace to draw specific conclusions about what he called “flaws in Wal-Mart’s personnel policies.”

The entire argument highlights the central role that social framework analysis has come to play in scores of major employment discrimination cases. From an analytical perspective, the important issues is Wal-Mart’s argument that even if the plaintiff’s claims were established fact, anecdotes and statistics would not be enough. According to Wal-Mart, Supreme Court precedent also requires lawyers pursuing a class action to identify the common policy that they say led to unlawful discrimination.

Dr. Bielby concluded that two aspects of Wal-Mart’s corporate culture could legitimately be blamed for observed disparities in pay and hiring. One of these aspects was related to their centralized personnel policy. The aspect was allowing individuals managers the ability to use their own subjective judgments in the field. In combination, these two factors allowed stereotypes to infect personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”

The tendency of organizations to allow individual managers to use their subjective “professional judgment” or to simply trust them to make valid and evidence-based decisions is widespread. As organizations—especially public sector entities—seek to make their hiring process cheaper and faster this risk increases dramatically.

It is critical, whether your company operates a centralized HR function or a decentralized manager-centric HR function that all selection decisions be based on validated, objective, and job-related criteria.

For more information about the case, visit http://www.nytimes.com/2011/03/28/us/28scotus.html?ref=business.

If you require assistance with your organizations compliance with Title VII of the Civil Rights Act, Executive Order 11246, or OFCCP compliance, Affirmative Action Services is a highly qualified full-service consulting firm able to help you. For a free, no-obligation consultation, contact us at info@AffirmativeActionServices.com. Or call Dr. Jim Higgins at (916) 204-1749.

Compensation Analysis At Institutions Of Higher Learning – By Dr. Jim Higgins, Ed.D.

For the sake of simplicity, most federal contractors begin their compensation analyses using a small set of easy-to-gather variables that common sense would indicate are likely to explain differences in pay. These include Number of Years On-The-Job, Age (as a proxy for experience), Job Performance, Highest Degree, etc. The assumption is that as values of each of these variables increase, an employee’s compensation is likely to also increase (i.e., as job performance goes up, compensation goes up.)

While this methodology makes sense for most jobs, one distinctly unique job that requires a very different approach is that of college professor. The factors that impact pay for college professors is very different from those of other jobs.

Whereas most jobs place a premium on experience, the opposite is true for the professor position. For most jobs, as tenure increases a variety of things occur. For example, the longer an employee is on the job, the farther they tend to advance up the salary scale. In addition, with experience there tends to be an increase in performance as an employee develops greater mastery of the job. Finally, older employees tend to earn more because they have had more time to develop additional job-related experience.

Things are much different with college professors. For these, those who received their degrees more recently tend to have more current skills and so receive higher pay. Academic union contracts often result in newer hires being paid more than those with substantially greater tenure. Differences in the quality of institution where a degree was earned is much more likely to influence pay than for non-teaching jobs.

An entire host of other variables that are unique to professors and academic professions are also critical in explaining employee compensation. These might include number of grants awarded, number of publications, and number of conference presentations.

These variables, and how they interact with each other to explain pay is also quite different for professors. If you would like to participate in a free Affirmative Action Services webinar focusing on compensation analysis in institutions of higher learning, add your name to our pre-registration list at: http://www.surveymonkey.com/s/AASWebinar.

If your organization would like to discuss how Affirmative Action Services can help you with your OFCCP-compliance needs including, AAP development, Compensation Analysis, Pre-Employment Testing, or Audit Support, contact us at Info@AffirmativeActionServices.com.