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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  • Assessments
    Asked by Colin H. - Oct 21, 2016
    I work for a federal contractor and we are considering adding a personality assessment by a company called Rembrandt. At a past employer, we stopped using personality assessments due to growing scrutiny on how valid they were in predicting job performance and the fact that we were not doing independent job analyses on each (of many) jobs we were using them on. Fast forward to four years later, and my new company of about 1150 employees wants to bring them in. My management isn't as concerned about the chance we get audited and they dig into our assessment practices. Should I be worried and what can I show them to make sure they understand what the use of personality assessments might mean in an audit?
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Oct 24, 2016
    Hi Colin -- Your concerns are not misplaced, as you correctly identified the issues related to using personality assessments and any other type of test in the employment process. The risk of any type of "test" is the potential for adverse impact in the results. If there is adverse impact against any particular group, OFCCP could request a validation study to show the relationship between performance on the test/assessment and performance in each position for which the test/assessment is a required step. Even if your complete (and expensive) validation study shows high correlation, OFCCP may still reject the results, leading to a prolonged audit. In short, your risk is lower if there is no adverse impact in the results. But the adverse impact calculations need to be conducted on an ongoing basis.

    Answered by Carla Irwin from Carla Irwin & Associates, Inc. - Oct 24, 2016
    Colin - A federal contractor must comply with Uniform Guidelines on Employee Selection Procedures (UGESP) when it comes to using a test as part of the selection process. As you will read through these resources, if your company decides to move forward with the personality assessments validity is a must.

    Here is a link to a good resource: http://www.uniformguidelines.com/

    Here is a link to the CFR: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=3b71cb5b215c393fe910604d33c9fed1&rgn=div5&view=text&node=41:

    OFCCP FAQs for The Ricci Case: https://www.dol.gov/ofccp/regs/compliance/faqs/Ricci_FAQ.htm

    Some information you can share with your management:

    -An article from Sandra Zeigler on using tests in employment process: https://secure.localjobnetwork.com/a/t-using-tests-in-the-employment-process-au-zeigler,-esq.,-sandra-articles-a6424.html

    -OFCCP Settlements on hiring discrimination which included a test

  • Disability Survey
    Asked by Austin B. - Oct 19, 2016
    When you survey your current staff and ask if they have a disability using the Voluntary Self-Identification of Disability form, do you need to survey those who are not paid?
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Oct 24, 2016
    Austin - you only have to survey your employees that are on your payroll and counted in the AAP.

  • What are the laws around issuing Writing Tests
    Asked by Anonymous - Oct 17, 2016
    We have a position which requires strong writing skills, and the Hiring Manager would like to issue a writing test. In HR's opinion, we feel that reading and ranking a writing test would be very subjective and potentially could lead to a candidate claiming discrimination given that the test results are not black and white and cannot be validated. Can you please share how widespread the practice of issuing Writing Tests are and how to do it safely and legally if it is not seen as a discriminatory practice?
    Answered by Carey Freitag from Local JobNetwork™ - Oct 20, 2016
    Pre-employment testing is a selection tool that can provide valuable information to assist with selecting the most qualified applicant for a particular job. In certain fields, such as Public Relations, knowing the writing skills of an applicant is critical and the company may ask applicants to prepare a press release as part of the interview process.

    The use of selection tools, however, may violate the federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law. No selection tool should be implemented without an understanding of its effectiveness, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

    There is always a risk when implementing pre-employment testing. The testing needs to be valid and reliable. Employers should be consistent in their use of the testing and avoid creating an adverse impact, either intentionally or unintentionally, on any particular group.

    The EEOC has published a fact sheet setting forth its view on pre-employment testing that you might find useful.

  • Documenting Searches
    Asked by Anonymous - Oct 17, 2016
    Recruiters source for candidates within our own Applicant Tracking System (searching for candidates from all of the positions candidates have ever applied to using key word searches versus JUST looking at the candidates that have applied for a given position). In addition, we also search for candidates on LinkedIn and CareerBuilder and reach out to them and send them the link to apply if they are interested. What are the rules for documenting searches per OFCCP?
    Do we have to document when we search for candidates:
    1.) within the pipeline of the position to narrow down the pool of candidates to find those who are the best fit, and/or
    2.) when we search within the database of our entire database at large to find candidates who applied for other openings that might be a fit, and/or
    3.) when we search within LinkedIn, and CareerBuilder, etc.

    And are there rules for how and where to document?
    Thank you!
    Answered by Roselle Rogers from Local JobNetwork™ - Oct 17, 2016
    OFCCP’s Internet Applicant Recordkeeping Rule requires federal contractors to save certain records when they conduct resume database searches, whether it is an internal or external database.

    When you are searching your own applicant tracking system as you described, you are essentially conducting an internal resume database search. The records you need to keep for internal resume database searches are as follows:

    • A record of each resume added to the database
    • A record of the date each resume was added to the database
    • A record of the position for which each search of the database was made
    • The date of the search for each search conducted
    • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used

    When you are searching other websites such as CareerBuilder, you are conducting an external resume database search. The records you need to keep for external resume database searches are as follows:

    • A record of the position for which each search of the database was made
    • The date of the search for each search conducted
    • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used
    • The resumes of job seekers who met the basic qualifications for the particular position who you considered for the position. You are not required to maintain the resumes of individuals if you did not consider them for the position. You are also not required to maintain a record of searches that do not produce candidates that meet the basic qualifications.

    When you are selecting from within the applicants who have applied to the position, you are required to keep a record of any tests, test results, and interview notes. While there is no OFCCP requirement for contractors to use disposition codes, it is in the contractor’s best interest to use strategic disposition codes that record all of the following:

    • The stage in the selection process when the candidate was removed from consideration for the position
    • The reason for removing the candidate from consideration
    • The person who made the decision to remove the candidate from consideration

    For more guidance on this topic, see OFCCP’s Frequently Asked Questions on the Internet Applicant Recordkeeping Rule.

  • Are there requirements on how long a job MUST be posted?
    Asked by Anonymous - Oct 14, 2016
    We are considering developing a firm policy around how long our positions will be posted. I have some concerns about holding us to a minimum number of days that a posting will be live both internally and externally. Does the OFCCP REQUIRE a certain amount of time for postings? I was advised per an AAP attorney, that we should require our positions be posted for a minimum of three days externally and 4-5 days internally, but I didn't think there was anything REQUIRED by OFCCP around posting requirements. I'm confused! Please advise.
    Answered by Roselle Rogers from Local JobNetwork™ - Oct 17, 2016
    The Equal Opportunity Clause of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) states that: “Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a bona fide job order, including the acceptance of referrals of veterans and nonveterans.”

    This means that a contractor must list or post their jobs with the Employment Service Delivery System (ESDS) as soon as they start recruiting for it, and keep the posting active until it is filled. It does not necessarily specify a minimum or maximum number of days that jobs must be posted.

    That said, this doesn’t mean that a contractor cannot post a job for a longer period of time than what the law requires. You should also keep in mind that the answers provided here on Ask the Experts are of a general nature and should never be substituted for legal advice. Your attorney knows your company’s specific situation and circumstances more, and may have valid reasons for advising you to list your jobs for a certain period of time. I would follow your attorney’s advice because he/she knows your situation best.

  • What Contractors Are Covered under EO 13706
    Asked by Kathy B. - Oct 13, 2016

    My colleague attended the March 2016 webinar presented by Cara Crotty. Cara discussed "What Contractors Are Covered" and as a financial institution I don't believe that we meet the requirements but I've heard conflicting advice regarding banks.

    Do you think that banks are required to provide Paid Sick Leave according to Executive Order 13706?

    Answered by Roselle Rogers from Local JobNetwork™ - Oct 21, 2016
    There have been conflicting opinions about this. The Wage and Hour Division staff, the agency which is responsible for enforcing this Executive Order, are saying that this only applies to federal contractors who fall under the following:

    1. Procurement contracts for construction covered by the Davis-Bacon Act (DBA)
    2. Service contracts covered by the McNamara-O’Hara Service Contract Act (SCA)
    3. Concessions contracts, including any concessions contracts excluded from the SCA by the Department of Labor’s regulations at 29 CFR 4.133(b)
    4. Contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public
    5. Any subcontract of a covered contract that (like the upper-tier contract) falls into one of the above four categories

    The issue is that OFCCP has historically maintained that banks and financial institutions who have entered into an agreement for Federal Deposit Insurance Corporation (FDIC) insurance are also covered federal contractors under the regulations it enforces.

    The best thing to do would be to consult with your AAP attorney to determine whether your company is subject to the requirements of EO 13706.

This forum provides information of a general nature. None of the answers or information provided is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. Additional facts and information or future developments may affect the subjects addressed. You should consult with an attorney about your specific circumstance before acting on any of this information since it may not be applicable to your situation. The Local JobNetwork™ and all experts expressly disclaim all liability with respect to actions taken or not taken based on any or all of the contents of this forum.