In July 2013, the U.S. Department of Labor has recently released its Federal Contractor Compliance Manual. The 536-page manual and comes from the Office of Federal Contract Compliance Programs (OFCCP). Federal Contract Compliance Manual (FCCM), U.S. Dep’t. of Labor, July 2013, available at www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf. According to the OFCCP, the manual
provides new and experienced compliance officers the procedural framework for executing compliance evaluations and complaint investigations. It provides procedural and technical guidance on compliance issues based on current agency procedures and processes. and improves consistency across the agency´s regional and field offices. It does not establish substantive agency policy.
In August 2013, the OFCCP held a webinar to discuss the manual. Of note on criminal and credit background checks is found first in the section on desk audits. Here, the manual says that “a lack of representation of minorities may result from the unwarranted screening out of applicants based on criminal records, credit history, or unemployment status that requires action-oriented programs.” FCCM, 30. According to the manual,
[a] desk audit typically enables [compliance officers] COs to review a contractor’s compliance with its affirmative action and equal opportunity obligations at a particular establishment. COs must conduct desk audits in accordance with the following general principles: [EEO, affirmative action, and] inclusion and acceptability.
Id., 5. The manual contains an addendum (addendum B) on a model conciliation agreement which reads in part as follows:
NON-MONETARY REMEDIES. [CONTRACTOR] will ensure that all applicants are afforded equal employment opportunities. [CONTRACTOR] agrees to immediately cease using the selection procedures, practices, and/or policies which negatively affected the hiring of [DISFAVORED GROUP] applicants for [NAME OF JOB(S)] positions. [CONTRACTOR] agrees to continue and/or to implement the corrective actions detailed below.
Revised Hiring Process
(a) Eliminate Discriminatory Selection Procedures: [CONTRACTOR] agrees to immediately cease use of the [NAME OF SELECTION PROCEDURES (INCLUDING TESTS)] until they are validated in accordance with 41 C.F.R. Part 60-3. [CONTRACTOR] agrees to comply with all OFCCP regulations concerning selection procedures, including 41 C.F.R. Part 60-3. [CONTRACTOR] will not use any selection procedure that has an adverse impact, as defined in 41 C.F.R. § 3.4D, on applicants of a particular [CHARACTERISTIC OF DISFAVORED GROUP (i.e., race, sex, national origin…)] unless it properly validates the procedure pursuant to these regulations.
(b) Review and Revisions Required: [CONTRACTOR] will revise, in writing, the practices, policies and procedures it uses to
(i) create a job description and selection process for [NAME OF JOB GROUP/ POSITION]s which describes the essential functions; the minimum qualifications including required skills and certifications; and the criteria used in each step of the hiring process, including any application screens, interviews, tests, credit checks, review of criminal history, reference checks, testing, or other selection procedure;
(ii) develop specific, job-related qualification standards for [NAME OF JOB/ POSITION]s that reflect the duties, functions, and competencies of the position to minimize the potential for [[CHARACTERISTIC OF DISFAVORED GROUP (i.e., race, sex, national origin…)] stereotyping or other unlawful discrimination;
(iii) ensure all policies and qualification standards are uniformly applied to all applicants; and
(iv) list clearly on its recruiting materials and job postings the minimum qualifications, including required skills and certifications.
Readers may recall that in May 2012, the Labor Department issued its Training and Employment Administration has recently issued Training and Employment Guidance Letter (TEGL) No. 31-11 on the use of criminal histories. Additional background on this TEGL may be found at CDIA’s website.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More