OFCCP Ask the Experts
Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question.
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  • Employee Declines to Identify Gender - AAP/EEO-1 Reporting
    Asked by Anonymous - Aug 24, 2017

    When employees decline to identify as a gender, must a visual be made in order to report these employees for EEO-1 and AAP purposes?
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Aug 24, 2017
    No. The regulations at 41 CFR 60-1.12(c) states "where possible" the contractor must be able to identify gender (see below).
    Additionally, OFCCP Directive 283 says a contractor "may" use visual observation for race, but it is not required (see below):

    41 CFR 60-1.12
    (c) Contractor identification of record. (1) For any record the contractor maintains pursuant to this section, the contractor must be able to identify:

    (i) The gender, race, and ethnicity of each employee; and

    (ii) Where possible, the gender, race, and ethnicity of each applicant or Internet Applicant as defined in 41 CFR 60-1.3, whichever is applicable to the particular position.

    OFCCP Directive 283

    FIELD ENFORCEMENT GUIDANCE: Compliance Officers should adhere to the following principles when evaluating the use of race and ethnicity categories in the AAPs prepared by federal contractors in accordance with the Executive Order, as amended:

    Contractor data tracking responsibilities remain the same.(4) Accordingly, self–identification will remain the preferred method for compiling information about the sex, race or ethnicity of applicants and employees. A contractor’s invitation to self–identify race or ethnicity should state that the submission of such information is voluntary. However, contractors may use post–employment records or visual observation when an individual declines to self–identify his or her race or ethnicity.(5)
    Answered by Bill Osterndorf from HR Analytical Services - Aug 24, 2017
    I think Marilyn has provided some useful information. However, there appears to be some divergence in opinion on a question you didn't ask, which is this:

    When employees decline to identify a gender, are we allowed to show them as "unknown" in reports to EEOC and OFCCP?

    On that point, EEOC has provided the following response regarding race/ethnicity which can be found at https://www.eeoc.gov/employers/eeo1survey/sample_self_identification.cfm:

    "All employees must be accounted for. There are no "OTHER" or "UNKNOWN" race/ethnicity categories."

    It seems clear that if an employee must have a known race/ethnicity, the employee must also have a known gender.

    While OFCCP has not provided specific and direct guidance on this issue, there is nothing in the agency's regulations to suggest that "unknown" is a valid option regarding the gender of employees. As Marilyn notes, 41 CFR 60-1.12 clearly suggests that it is permissible to have applicants of unknown race or gender. However, there is no language in any regulations or FAQs that suggest contractors can use "unknown" as a valid race/ethnicity or gender for employees.

    We live in a society where EEOC and OFCCP are clearly failing to understand the times we live in. The nice, clean bifurcation that the agencies have adopted for reporting purposes where employees are "male" or "female" does not reflect a world where we have transgender employees and employees who refuse to identify as one gender or another. Oddly enough, both agencies prohibit discrimination based on gender identity, and yet both agencies require employers to report the gender of employees in an either/or fashion.

    Thus, I agree with Marilyn that the direct answer to your question is "No, you don't need to do a visual identification." I also believe that EEOC and OFCCP are doing employers a disservice by failing to recognize that there are employees to do not self-identify gender in a traditional sense. However, it seems clear to me that both EEOC and OFCCP require that when employees fail to identify race/ethnicity or gender, that the employer must find a way to provide a race/ethnicity and gender that falls within the traditional race/ethnicity classifications and the traditional male/female boundaries.

  • Letters to subcontractors, suppliers and vendors outside the U.S.
    Asked by Theresa C. - Aug 22, 2017
    I sent out our vendor letters in compliance with OFCCP to all our subcontractors, suppliers and vendors. I got a call back from a Canadian supplier who says it does not apply to them because although he is a US government contractor, there is no AA requirement in Canada. I got a response back from another Canadian supplier with answers to the questions. Should I be sending the letter to suppliers outside of the US? Do they need to comply with the items outlined?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 25, 2017
    The compliance requirements enforced by OFCCP apply only to companies, vendors, suppliers, etc in the U.S.
    Answered by Alissa Horvitz from Roffman Horvitz, PLC - Aug 31, 2017
    The question prompts a three-part reply:

    First, what is the OFCCP regulatory requirement to send out letters, and to whom?
    Second, does the OFCCP’s jurisdiction extend to companies outside the United States?
    Third, why might some Canadian suppliers choose to respond?

    First: The OFCCP’s Regulatory Requirement

    In both the veteran and disability regulatory requirements, there is a mandatory obligation to engage in external-facing tasks, specifically: external dissemination of policy, outreach and positive recruitment. The legal citation for this obligation is found at 41 C.F.R. Section 60-300.44(f)(1)(ii)(veteran regulations), or 41 C.F.R. Section 60-741.44(f)(1)(ii)(disability regulations).

    The sending out of letters is required by the portion of the regulation that reads: “(ii) The contractor must send written notification of company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part.” The OFCCP does not explain what this “appropriate action” is or what the recipient of the notification is expected to do. The regulation also does not require the sender to ask the recipient to send anything back. It is one-directional. The sender needs to maintain records of when the communication was sent out, and to whom, but there is no requirement that the person or company receiving it sign it, acknowledge it, or send back any type of affirmation.

    The written notification can be a letter, an email, or a statement on a purchase order. Employers have flexibility in the form of the “written notification.”

    At the bare minimum, it would be compliant for the communication to say, “This company is a federal government contractor. Our policy is to provide equal opportunity to applicants and employees. We take affirmative action with respect to women, minorities, protected veterans and individuals with disabilities. As applicable, we request appropriate action on your part.”

    Some companies may choose to say more about their equal employment policies, outreach, external efforts, positive recruitment, and affirmative action initiatives, but there is nothing in the regulations that requires it. Some companies use this written notification obligation to say a lot more about what a covered subcontractor may be expected to do, depending on the size of the subcontract and the first-tier contractor's perception as to whether its supplier already knows or does not know about OFCCP's compliance obligations. Some companies know not everyone reads the fine print in master agreements, and may miss cross references to OFCCP’s flow-down clauses. The recipient may not know about EEO-1 filing obligations, or VETS-4212 filing obligations, and so the prime or first-tier contractor wants to make certain that it is clear in what obligations covered subcontractors, vendors, and suppliers are required to undertake.

    But whether a company chooses to expand the scope of this written notification requirement is different from what the regulations require.

    Second: Does OFCCP’s Reach Extend To Companies Outside the United States

    No. The United States government’s agencies can choose to buy goods from a Canadian supplier. If the Canadian supplier does not have a U.S. subsidiary, OFCCP does have jurisdiction to audit it. The response that came back from the Canadian company was correct. It does not have to comply with OFCCP’s laws and regulations. You do not need to send letters to foreign companies.

    Third: Why Might Some Canadian Companies Send Back A Response?

    Canada has regulations that are similar in some respects to ours. Some Canadian companies are required to prepare Employment Equity Plans (EEPs). Canadian companies doing business with the Canadian government are familiar with these similar types of American equal employment requirements and questionnaires, and may reply to a U.S. letter because they already are doing these things at their Canadian operations. They might want their American purchasers to know they are doing these things in Canada. Perhaps the American purchaser will continue to buy from them because they already are compliant in Canada.

  • Contacting Candidates from a Database Search
    Asked by Anonymous - Aug 21, 2017
    We are considering use of an external resume database for some of our positions. Job seekers would then be invited to apply to the position through our website.

    If a search returns 30 job seekers (which are all considered by assessment of their resume and all meet the basic qualifications of the job), I understand that all of those resumes must be retained. However, are we required to also invite all 30 job seekers to apply? Or may we be selective in who receives an invitation? Could we also choose to not invite any of them?

    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Aug 24, 2017
    You are not required to invite any of them to apply, and you may restrict your invitations to a select few. You should, however, retain the search criteria used and the date of the search, in addition to the resumes resulting from the search. Please also note that you would still be required to follow standard posting requirements for the positions.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 25, 2017
    They are all applicants in your scenario, unless excluded for another reason (i.e. self-select out). Whether they are selected to go further in the process is up to the company. You can choose one, some, all or none to go forward. Track it as you would any step in your applicant process and if overall impact, check this step as well.

  • Hiring Events - On the spot offers
    Asked by Anonymous - Aug 10, 2017
    We are looking to do an in person hiring event and our leaders would like to do on the spot offers/letters on intent to hire at this event. While we encourage everyone to complete an online application, we are opening this event up so I imagine we'll have interested candidates show that may not have an application on file.

    Can you offer any guidance on the best way to handle this type of event? Or any resources that may help? Or is it ok to have a contingency letter drafted saying we are interested and want to move forward with you if you meet all the outlined qualifications...
    Answered by Bill Osterndorf from HR Analytical Services - Aug 21, 2017
    The simple answer to your question is this: you should always make candidates follow your standard process for expressing interest. If you generally require that candidates complete an online application, then you should ask candidates who are at your hiring event to complete the online application.

    It's not clear from your post above why you are doing "an in person hiring event," and why this would necessitate making immediate offers to candidates. There certainly are circumstances in which companies want and need to make immediate hires. For example, if you have a huge new order for products or services that requires you to immediately add employees, an in person hiring event may make sense. However, if your company's standard hiring process is to require candidates to apply online after posting an opening, then there should be some well defined reason for deviating from this process.

    One way to think about this situation is to consider it from the perspective of someone from a governmental agency who may be asked to determine whether your hiring process discriminated against some protected class. The representative of the government agency is going to want to compare the credentials of candidates who expressed interest against the credentials of candidates who were hired, and is going to want to understand how your selection process worked and who was involved in the process. If hiring managers are allowed to deviate from your standard selection processes and make offers to people on the spot at your in person hiring event, they will need to be able to clearly state why the persons selected are more qualified than others. A governmental representative will not accept the idea that the pressing need for people allowed you to hire demonstrably less-qualified candidates.

    If you still want to do an in person event and you don't want to make people go home and apply online, then you may want to consider having kiosks available at the event so that people can apply while they are there. That way, at least you'll have collected all the information you need to determine who the best qualified candidates are. Then, if you want to tell some candidates that you are seriously considering them for hire, you'll be able to quickly look at the qualifications of other candidates to ensure you are hiring the best qualified people.

    I understand the need to quickly hire people when you have pressing business. From a compliance perspective, though, it's important to recognize that the government will always expect that you can prove you hired the best qualified person. Making offers on the spot has the potential to leave you vulnerable if you can't provide this proof.

  • Bid and Proposal Job Posting
    Asked by Natasha T. - Aug 10, 2017
    We frequently post positions to engage candidates for future opportunities associated with bid and proposal activities. These positions could be located all across the United States. Is it necessary to add a new ESDS location/state each time you post a position that is not yet a live job opening?

    If these bids were won, the opportunities would become official job openings working in the state the position would be advertised in.

    I would appreciate any guidance on this matter.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 10, 2017
    The regulations require "employment openings" to be listed with the state employment service. It sounds like, from your description above, that your company is not advertising actual openings, but is advertising potential openings, so it does not appear as if the listing requirement is yet triggered. However, if the company were to collect applications to consider for positions if the bid was won later, then I would recommend the company list the jobs at the bid phase consistent with the regulations, so that the company is not inadvertently circumventing the rules.

  • Subcontractor Responsibilities
    Asked by Richie F. - Aug 08, 2017
    In regards to notifying our subcontractors of our status as a federal contractor under the AAP this is a snippet of what I sent out to them:

    "Our records indicate that you have provided goods and/or services to us according to established regulation thresholds under Section 503 of the Rehabilitation Act, as amended and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), as amended. Therefore, please be advised that your organization must also comply with the rules and provisions as specified by the US Department of Labor, Office of Federal Contract Compliance programs at CFR, Title 41, and Part 60-300 and 60-741.

    We appreciate your support of our commitment to equal employment opportunity and request appropriate action on your part."

    What exactly are their responsibilities? What "appropriate action" do they need to take?

    I just want to know in case they ask.

    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 08, 2017
    If the company is a covered subcontractor (i.e., they are doing business with a federal contractor or subcontractor), then its obligations for compliance are like that of any covered contractor. Depending on the amount of the contract, of course, they must comply with the laws enforced by the OFCCP. This provision in the regulations puts the entity on notice that they are a covered subcontractor.

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