Matthew J. Camardella, a partner at Jackson Lewis, LLP, talks about the Office of Federal Contract Compliance Programs under the Obama administration's second term, pre-employment tests, and the potential effects of a new Census Bureau data tool on affirmative action planning.

Two days after the 2012 presidential election, Bloomberg BNA spoke with Camardella shortly before he presented an affirmative action update at a government contractor symposium sponsored by the law firm's Washington, D.C. region office.

"Given the fact that President Obama won the election, the leadership at the OFCCP is likely to stay in place," Camardella, a partner in the firm's Long Island, N.Y. office, told participants at the Bethesda, Md. event.

Bloomberg BNA: What does the re-election of President Obama mean for federal contractors that are regulated by OFCCP?

Camardella: It means more of the same. OFCCP is going to push forward with it regulatory agenda. We saw the agency getting queued up during the first four years of the Obama administration by proposing major regulatory changes. 

The federal contracting community is going to see a continuing trend on enforcement activities with emphasis on adverse impact in hiring, compensation equity and technical outreach compliance aimed at hiring veterans and people with disabilities.

During the last two years, the agency has issued proposals to amend contractors' affirmative action obligations for veterans and people with disabilities. It also plans to develop a compensation data collection tool and has revised its scheduling letter and itemized listing.

 I think slowly but surely we are going to see final regulations rolled out on some of those initiatives, but maybe in a slightly modified form. I do anticipate that OFCCP's regulatory initiatives will go forward.

Bloomberg BNA: Even the compensation data tool?  The National Academies of Sciences (NAS) recently reported that OFCCP and other federal anti-discrimination agencies are ill-equipped to collect compensation data from private employers.

Camardella: Maybe OFCCP will go back to the drawing board and try to develop something different. The mere fact that they were soliciting comments to an advance notice of proposed rulemaking to figure out what an appropriate compensation data tool would look like was maybe premature, which the NAS report also concluded.

If the OFCCP thinks about it again in terms of what the agency needs to do to target contractors who would be seemingly out of compliance with regard to pay equity, then I think it could probably develop something that would be useful. 

Bloomberg BNA: There has been a lot of post-election commentary on the nation's shifting demographics. As you know, the Census Bureau is planning to release at the end of November the EEO 2006-2010 ACS (American Community Survey) Tabulation File, which provides workforce data by ethnicity, race, and gender. Contractors use the data to determine availability of minorities for job openings, and OFCCP uses the data to see if a contractor's availability determination is reasonable. How do you see this new Census data tool affecting contractors' affirmation action planning?

Camardella: Ten years is a long time. We expect contractors will see a sharp increase in the availability of minorities in certain demographic areas around the country. There is going to be a labor market increase in the availability of minorities. And therefore, the contractor's hiring goals will have to reflect the increase. Contractors should be anticipating that they are going to see more minority hiring goals in their affirmative action planning than in the past, as a result of the 2010 census data.

Bloomberg BNA: Talk about pre-employment tests within the context of OFCCP compliance. Why is this becoming a big issue?

Camardella: Pre-employment tests are sometimes seen as a systemic barrier to potential employment. Also keep in mind, "tests" can refer to any selection step that is ranked or scored, such as pre-employment written tests, behavioral and personality tests, pre-screening questions, and scored interviews, just to name a few.

Pre-employment testing is going to be a major focal point for OFCCP. The agency is understaffed and doesn't have a big budget, so it will have to focus on those things that are institutionally screening out applicants or barring them from employment.

Given the rise of what I am going to call the "Internet World" and the ease by which individuals can apply for employment online, coupled with the relatively high unemployment rate, contractors are seeing a tremendous volume of applicants in all job positions and employment fields. The consequence for recruiters and human resources managers is that they have more people to screen through, but not more time to do so.

Pre-employment tests represent a tool by which employers can quickly screen out people who they definitely don't want and hopefully zero in on those folks that they do want, which are job applicants who are most likely to be successful in that position.

The problem, of course, is that not all pre-employment tests do a good job of determining whether a job applicant will succeed in a position. This presents a risk that the contractor will screen out a large number of individuals based on the results of a test that is not really correlated to the position at issue.

Bloomberg BNA: What are the key compliance issues for contractors when it comes to pre-employment tests?

Camardella: Contractors have to be mindful of their obligations to monitor pre-employment tests for adverse impact. Secondly, contractors need to be aware of the issue of validation, which is the scientific methodology by which you show that a pre-employment test is rationally related to the job by either showing that it mimics, for example, key components of the job. Or it is a reliable predictor of success for the job.

Most contractors have difficulties with validation compliance. There is a cottage industry growing up around providing pre-employment tests in which you have these third-party vendors that will sell the tests on a commercially available basis, claiming that the tests are valid.

The problem is the tests have not been validity for the specific employer who wants to utilize the tests. This lack of connection can oftentimes undermine the argument that the test is valid. OFCCP is aware of this issue and will not hesitate to go after a contractor who using an employment test that has been generically validated, but not validated for the use of the specific contractor's workforce.

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