OFCCP Week in Review, Special Edition | DEAMcon22 Day One Recap

We hope you enjoy this tour of the DEAMcon22 conference and vicariously absorb some of the rich content of what many describe as the country’s most diverse and educational EEO meeting each year. And with warm thanks to Cyndi for joining our WIR team for this special event! Explore key sessions on day one:

• DE Executive Director Candee Chambers Welcomed Members for Three Days of Education, Networking & Fun
• DE’s Family Of Brands Provide A “One-Stop Shop”
• Fox & Wang Discussed Recent Significant OFCCP Developments
• Maysoon Zayid Presented The First Keynote Address: “If I Cancan, You Cancan”
• Recruit Rooster is the Buzz of the Barnyard with its Evolving Recruitment Tools
• Recruiter Panel Dove Into Tech & User-Driven Development Behind Talent Community
• Judy Julius Took A Deep Dive Into The New Census Data
• TEKsystems Team Discussed How To Leverage Early Talent To Solve for Diversity
• Torin Ellis Tore it Up When Presenting The Second Keynote of The Day: “Minus the Illusion”…Ended Day One With A Challenge

DE Executive Director Candee Chambers Welcomed Members for Three Days of Education, Networking & Fun

DEAMCon22 began on Wednesday, April 20 with a warm welcome by DE Executive Director Candee Chambers. “Whether you’re a long-standing member or brand-new to the Association, we want to thank you for your support,” Chambers said. Day One of the three-day conference was heavily laced with content aimed at all aspects of recruitment and compliance, including practical DE&I recruiting tips.

DE’s Family Of Brands Provide A “One-Stop Shop”

Following the opening ceremony on Wednesday morning, Heather Hoffman, COO of Recruit Rooster, showed a short video and provided additional information about the company; she also noted what presentations its experts would present that day.

Next, Chambers presented a video highlighting DE’s family of brands, including DE, Taapestry, Recruit Rooster, and RocketBuild. Together, they constitute scalable one-stop shop solutions for OFCCP compliance, affirmative action/EEO, and recruitment marketing challenges.

Chambers then introduced DE’s newly appointed president of its Board of Directors, Chris Liakos. “I’ve been a member of DirectEmployers for 18 years, three different member companies and I can truly attest to the brainpower that this team brings to the DirectEmployers family of friends,” he observed.

Fox & Wang Discussed Recent Significant OFCCP Developments

“This is the most unusual administration I’ve observed having been in Washington for 30 years and being a political appointee running OFCCP in an earlier life,” attorney John C. Fox of Fox, Wang & Morgan P.C. observed in his introduction to his presentation made with fellow law partner Jay J. Wang. “Whether Democrat or Republican administration, we have not seen an administration like this one. It is a totally unique creature that is still evolving and taking root.”

Wrecking Balls & Magic 8 Balls

There are two ways to make policy, one is to rescind what has gone before (“wrecking ball policy” approach) and the other is to build new policies, John explained. Usually what happens with wrecking ball approaches to policy is that those typically happen very quickly in a new political administration. “What’s very odd and unusual in this administration is that it is still bringing out the wrecking ball as recently as two weeks ago at OFCCP. It was not just on day one,” Fox noted.

John referred to a recent DirectEmployers WIR report which explained how OFCCP had rescinded four Trump Administration audit policies in its March 31 Directive 2022-02 regarding “Effective Compliance Evaluations and Enforcement.” [See the April 4, 2002 WIR “OFCCP Released The ‘Wrecking Ball’ On Most Of The Remaining Trump Administration Policies and Procedures Of Significance”] Although the agency removed Directives that had provided for transparency in negotiations and audits, the new Directives did not reveal what OFCCP would do to replace these policies. This action ushered in a new period of what John described as “darkness for contractors.” Rather than having set procedures of what to do in a given situation, OFCCP will “keep to themselves what they want to decide case-by-case,” he said. John added that using Magic 8 balls to predict OFCCP’s thinking and rationales in discrimination claims is about as good as you are going to get in OFCCP audits going forward.

The good news is that the agency is only accusing about a few dozen contractors each year of unlawful discrimination because they are only doing about one thousand audits per year, John explained. The bad news is that contractors must watch what OFCCP does and not what is said in Washington these days because the White House measures success by how much media attention any program gets, rather than the number of audits and the amount of backpay collected.

Audits Will Be Picking Up

“Let me warn you now that [while we have seen thus far the Biden Administration making OFCCP policy primarily by breaking down what the Trump administration had built], that is not going to be what we see in the future,” Jay said. Moreover, while the downward trend in the number of audits will continue initially, they “are going to pick up and they will pick up exponentially,” he added.

John pointed out that, with the advent of the new electronic contractor portal [See the December 6, 2021 WIR for background], the OFCCP will be building a new audit database. They are going to audit from the information in the portal and will at some point no longer use the algorithms in the EEO-1 Survey file that they have used since 1982, he said. John also noted that this change is going to alter which companies get audited and how frequently.

Compensation Discrimination & “Pay Equity”

“Four administrations in a row now have all featured as their primary policy objective compensation discrimination,” John explained, “but they have not found very much.” Nevertheless, the OFCCP “is using both old means and new means” to attempt to unearth compensation discrimination “because of the wage gap that exists in American society,” Jay noted.

Pointing to the agency’s March 15 Directive 2022-02 on Pay Equity Audits, Jay explained that the term “pay equity” has not been clarified. He referenced John’s recent two-part WIR blog on how this directive raises more questions than it answers. Given that OFCCP has always had the authority to investigate discrimination, does the agency “mean some form of affirmative action to make up for past discrimination?” Jay queried. In any event, the two practical effects from this OFCCP Directive are that OFCCP now believes it can: (1) request more documents and information during audits related to pay issues; and (2) obtain attorney-client privileged information. However, “that is not going to fly,” Jay said, because the case law is very clear how difficult it is to breach the attorney-client privilege or the attorney work product doctrine.

Maysoon Zayid Presented The First Keynote Address: “If I Cancan, You Cancan”

“There really is no Oppression Olympics” and it’s “important to not compare oppressions and also to not downplay your struggles, challenges and realities” advised comedian, actress, and disability advocate, Maysoon Zayid. Presenting the first of three keynote presentations of the conference, Maysoon, who has cerebral palsy, went on to note that while people with disabilities are 20 percent of the population, they are only 2 percent of the images seen in media. Considering these numbers regarding workplaces in general, she admonished that “[if] absolutely nobody you work with is disabled, you either are not being inclusive or you have not created a space that’s safe enough for people who don’t have to reveal their disability to do so.”

“You need to always create a space where the assumption is that someone is disabled, that someone needs the extra access,” she continued, rather than operating on the assumption that “no one ever needs it or that if they do need it, they can’t be just as effective as their nondisabled peers because they cancan.”

Recruit Rooster is the Buzz of the Barnyard with its Evolving Recruitment Tools

Recruit Rooster is “for employers to have another option that does not break the bank,” explained Senior Sales Engineer Steven Apostolidis. It is “a new flock of creatives, recruiters, and marketers from DirectEmployers,” who provide recruitment marking, creative services and accessibility services for employer websites.

Among Recruit Rooster’s new product innovations, is Google Talent, which is designed to support enterprise talent acquisition technology and evolve with a company’s needs. It improves upon regular Google search capabilities via its: (1) commute search; (2) recognizing industry jargon; (3) automatic spelling correction; (4) detection of seniority levels; (5) focus on relevant jobs; and (6) understanding of real-world locations.

Other offerings include:

• Talent Community, which helps employers develop a vibrant database of active candidates;
• Military Talent Translator, which also includes a base locator, veteran resources, and assistance with developing a veteran talent community; and
• A Recruiter Tool to track applicant flow, recruiter activity, & return on investment across all platforms. This tool helps companies “figure out what is actually working” i.e., “what’s actually bringing candidates back,” Steven said.

Recruiter Panel Dove Into Tech & User-Driven Development Behind Talent Community

Building upon Steven Apostolidis’ previous presentation, Paul White, a Member of the DE Board, a former President of the Board and currently the Director of Recruitment Operations for Kindred at Home (soon to be CenterWell Home Health) and Tyler Poling, Director of Product Development at RocketBuild (an unincorporated operating group of Recruit Rooster), dove into the Recruit Rooster Talent Community customer experience. They demonstrated how Recruit Rooster’s Talent Community uses microsites to help employers develop a database of talent. Talent Community is designed to give employers a tool “that’s unique, flexible, and customizable” while “still coming in at a good rate,” Steven said. Among other features, recruiters can customize the view on these microsites to suit their needs.

Paul detailed how Talent Community helps his company find nurses, therapists, and social workers to provide home health care. “Steven can turn stuff quickly when we have a need and it’s been really great to work with these guys,” Paul reported. “We’ve found more success when you can tailor the message to the audience specifically for nurses because they want to know what’s in it for them and what we offer them that’s different than other positions. So being able to customize that message helps grab their interest and ultimately get them to submit their information so we can contact them,’ he added.

“We’re wanting to push outside of maybe what is standard.” Tyler said. “There are a lot of competitors who have bigger, larger organizations” and “they kind of get stuck in what they’re doing, and we [in contrast] want to try to be innovative.”

Judy Julius Took A Deep Dive Into The New Census Data

Judy Julius, Owner/Primary Consultant of EEO Consulting, LLC, has been using the 2018 national, state, local, and industry EEO Tables to update affirmative action goals for her clients.

Judy first detailed what data the U.S. Bureau of the Census (“BoC”) had recently aggregated. She then provided suggestions to help contractors map their job titles from the 488 prior availability Census codes to the (only) 237 new codes reporting the availability of minorities and women in U.S. work markets. In addition, Judy reported that the Bureau of the Census had collapsed industry data for ninety industries into twenty multi-industry codes.

Judy has also been using the “collapsed” data for sixty cities BoC had suppressed until December 13, 2021. She noted that the collapsed tables the BoC publishes do not include the margin of error which Judy said she thought important because the larger the margin of error, the less reliable the data. Moreover, “your city may now be defined differently,” she cautioned. Accordingly, you should go to the county sets and metro definitions before you use the new city data, Judy advised.

TEKsystems Team Discussed How To Leverage Early Talent To Solve for Diversity

Three TEKsystems professionals presented a panel discussion on how the professional services company has been successful in its efforts to attract and retain talent by internally building diverse and inclusive teams.

“Representation matters,” John Lullen (Manager, Marketplace Diversity) pointed out, and accordingly, that’s part of the TEKsystems strategy. Early in his career with the company, a leader offered him the type of sponsorship, mentorship, and access that made him “felt seen.” “I felt valued. I felt included and that’s what we’re striving for” with their formal programs. “We have an executive inclusion board and regional councils that act as a sounding board or a think tank to help us address any systemic issues related to our internal strategy,” he said. The same traditional, legacy hiring models must change, he emphasized. The main goal is to create opportunity and show that there’s access for opportunity, John said.

Colette Cottman (Regional – Inclusion, Diversity and Equity Manager) described TEKsystems talent advocate manager program, where “the talent advocate manager works with the recruiting team from the very beginning when they’re doing the selection as part of the project management team.”  The program assures that the workers have consistent support, including assigned mentors throughout, that allows them to feel safe so they can move forward. “It’s not rocket science. But it is deliberate. It’s very specific,” Colette emphasized. Lauren Kolodrubetz (Executive Director, Diversity Marketplace Solutions) noted that it’s not just one person assigned all these roles, touching on her earlier observation that “one person carrying the torch is never going to be enough to create systemic change” within an organization.

Torin Ellis Tore it Up When Presenting The Second Keynote of The Day: “Minus the Illusion”…Ended Day One With A Challenge

“We’ve done far too much from a performative nature about DE&I,” in recent years, Torin Ellis observed in his dynamic keynote address. “We got comfortable using catchphrases and things that sound cute, he elaborated. “We’ve donned some cultural attire. We’ve painted a couple of streets across the country with some words. We even did some things in the NFL end zones. We’ve tried to get real cute with catchy… social media posts.” While some of these types of actions are “necessary and appreciated,” alone they are merely performative, he pointed out.

“Even worse are organizations placing the immense responsibility for DE&I in the hands of people that are less than capable, less than interested,” he added. On the other hand, Torin, a diversity strategist, author, and host of Career Mix on SiriusXM, said that over the last ten years, he has seen “a nagging suppression of chief diversity officers, people that lead DEI programming, folks that are responsible for pushing this through the organization … [t]hose  incredibly talented individuals navigating corporate politics and vocal gymnastics and disingenuousness leadership.”

“When you pull back the curtain, you understand that it is really more words and not enough action,” he noted. D&I requires organizational redesign, Torin explained. “Diversity, equity and inclusion and belonging requires intentional effort, action, participation.”

Employers need to shift their relationship with data to not just focus on time of hire, but rather on  building new relationships. Further, recruiters need to be better storytellers. In his experience as a recruiter, Torin has found that job descriptions are often irrelevant. “I need you to have recruiting teams to use their voice, not just take requisitions from managers–but challenge them” to do things differently and “be better about exploring the organization and all of the various value points” so that recruiters can paint a story that centers prospective talent to see “how they can contribute in the organization and be an effective person grabbing that challenge, that they’re going to be supported.”

The final piece is accountability, Torin asserted. “When I think about the number of people that make a reference to George Floyd and then talk about D&I, that is disappointing for me to know that as a Black man I am listening to organizations say that the only reason [… ] they are doing DE&I is because of George Floyd.”

“Until we fully explore what it looks like to build high performing teams that really care about the individuals that are inside of our organizations, we will struggle with fragmented growth, fragmented progress, intermittent progress, a stagnation that is deafening,” he stated. “I’m challenging you to look for love,” Torin concluded.

That’s a wrap on day one of DEAMcon22! Want to discover additional incredible content shared at this year’s event? Dive into to day two and day three coverage.

Want to see yourself on the DEAMcon stage in 2023?

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

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