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OFCCP: Ask the Experts
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.
What is the recommendation for implementation of OFCCP DIR 2008-02?:
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:
A.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)
Specifically, this statement:
However, contractors may use post–employment records or visual observation when an individual declines to self–identify his or her race or ethnicity.(5)
We do want to better understand how applicants are progressing through our process and where they are dropping off. Our ATS does allow us to update race/gender. When someone has opted for "I choose not to disclose" on the electronic application, we can update race/gender in the ATS, and there is an audit trail showing that we did so. This would be valuable for us from a data/analytics perspective, so we can target where we may be losing candidates of various protected statuses and target our efforts accordingly. But is this a good practice? Is it better to leave candidates in an unknown race/gender than to use visual observation to update this information?
As you note, the regulations allow visual observation when an individual declines to self-ID. As you also point out, using visual observation provides the data needed for analysis. So, if you want to have the most accurate assessment of where candidates are falling out of the process, visual observation is going to be helpful. While OFCCP does not require employers to use visual observation, they have been known to cite contractors when the rate of unknowns is extremely high, as it often indicates that the contractor is not making a best effort in the process of inviting candidates to self-ID.
EEO tagline - shortened & requirements
Asked by Anonymous - May 23, 2017
We are currently posting the following on your site, and have recently starting working towards posting this consistently on all our sites:
“[Our company name] considers applicants for all positions without regard to race, color, creed, religion, sex, age, national origin, marital status, status with regard to public assistance, disability, or sexual orientation. All applicants will be considered solely on the basis of their qualifications.”
However, some of the sites we post on require us to pay per word or per character, so our recruiting team, in an effort to save money or use it on the “meat” of the post, are wondering about shortening this for those sites only. I do know that we can shorten it but want to ensure there we are both compliant with the law and consistently post the important portions of it.
Do you happen to have suggestions on wording that is short but still covers it?
Also, shouldn’t we be including gender identity in the list?
I’m working on revising the full statement to be consistent and all-inclusive in all places we list it. Do you have other suggestions of things that would/could be added or otherwise changes?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 23, 2017
Yes, you are correct that you need to make some changes to your tagline. The example above is missing two required groups: gender identity and protected veterans. According to the OFCCP FAQs on its website, "Under OFCCP’s regulations, contractors may either state that they do not discriminate on any of the protected bases under Executive Order 11246, and list them all, or they may simply use the phrase “equal opportunity employer.” If electing the first option, contractors are required to add “sexual orientation” and “gender identity” to the list of bases on which discrimination is prohibited." The OFCCP further provides an example of a tagline, "“Equal Opportunity Employer–minorities/females/veterans/individuals with disabilities/sexual orientation/gender identity.” It's always a good idea to seek advice and not rely solely on the FAQs, but in this case, the tagline example is sufficient. Be careful about any abbreviations you might consider as those might put your company at odds with compliance requirements.
Hiring a short term temporary employee
Asked by Anonymous - May 18, 2017
We are looking to hire a short term, temporary administrative assistant for a 4 day engagement. Does this type of temporary need require a full recruiting process if we have a candidate in mind?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 18, 2017
The process needs to meet the Equal Opportunity Clause requirements since it is a four day engagement (three days or less are exempted). I do not know what your company's "full recruiting process" is, but it is perfectly acceptable for different jobs or different circumstances to lead to different recruiting processes, so long as there is neither actual discrimination, nor the appearance (as the appearance may be defensible, but still lead to trouble with the OFCCP). So long as there is a sound business reason, the decision is made before candidates are recruited and there is no adverse impact, it is not likely to be a problem. Simply put, it is very likely that the process for temporary admin position is very different from recruiting a new CEO or other senior leadership, and that is absolutely reasonable. Please follow up if this does not provide enough clarification for you!
EEO tagline statement on every job ad?
Asked by Anonymous - May 04, 2017
I am new to my company and realized that our company website uses the proper tagline. However, it is not being put onto every open job ad. Does it need to be, or are we covered by having it on the website? Related, when we post positions on social media such as LinkedIn or Facebook, we are not considering them to have applied until they go to our website and fill out the company application. As such, we are not putting the EEO tagline on those postings. I believe we should be. Can you verify that is correct?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 04, 2017
According to the regulations enforced by the OFCCP, contractors are required to include language that "all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin" (the tagline) in "all solicitations or advertisements." So yes, your instincts are correct. The proper language needs to be in place in every advertisement, whether it is social media or another site, not just upon application on the company's website. One can never go wrong including the tagline, so I would encourage you if there is a situation where you may be in doubt, to include it. Please let me know if you need additional information!
Self-ID Disability Form Inquiry
Asked by Gina C. - Apr 28, 2017
I’m inquiring about whether or not, we are able to alter the format of the OFCCP Self-ID Disability Form for our mobile capabilities for Indeed sponsored jobs. Unfortunately, the pdf version that OFCCP is requiring is not compatible with Indeed’s quality check for “sponsored jobs”. That being said, they have basically given us a couple options…1) to alter the form, which I know OFCCP isn’t a fan of or 2) that we just don’t purchase sponsored jobs, however, that is where we get the largest amount of hires from, particularly coming with those sponsored Indeed jobs.
Here is the information we had been given by our third party rep on Indeed’s rationale. We were also given an example from another Federal Contractor that had altered the form to meet the quality check. My question for you is whether we would be a risk for being out of compliance or would be dinged during an OFCCP audit, if we go ahead and let the form be altered to meet Indeed’s quality check.
Info that was provided to us:
The way the OFCCP is formatted will not affect organic visibility, but it will affect mobile sponsored visibility (the ability for sponsored jobs to appear on mobile search results). Our Mobile Search Quality team reviews every application submitted for mobile sponsored visibility and disqualifies applications that have non-mobile friendly components. According to their guidelines, the PDF on the US Cellular application would disqualify them. This is because it is not easy to read without pinching and zooming.
Answered by Carla Irwin from Carla Irwin & Associates, Inc. - May 02, 2017
Gina, below is the OFCCP new FAQ on non-substantive changes to the Disability Self-ID form. I am not sure what alterations are being suggested, but I would advise not changing it outside of the parameters given by the OFCCP. Also, while I don't have enough information regarding the disqualification of applications that are non-mobile friendly that is something I would investigate further if applicants are being auto rejected based on the type of device they are using to apply.
"Some contractors may find that it is necessary to make non–substantive changes to the self–identification form to ensure that the form is accessible to employees and job applicants with print disabilities. These changes could include, for example, changes to the font, margins, and colors used on the form. Are contractors allowed to make these types of changes to the self–identification form?
Yes. Contractors seeking to ensure that the form they use is accessible are allowed to alter the margins of the form, change the color of the section headings, remove or change the color of the border surrounding the text of the form, or make other similar non–substantive changes if those changes are required to make the form accessible. Contractors may also use HTML to make the form accessible. However, contractors may NOT:
Alter the content (i.e., text or wording) of the form; Alter the order of the content on the form; and Alter the form or make changes that diminish the general accessibility of the form."
EEO disclaimer statement
Asked by Trina C. - Apr 28, 2017
Hello, right now we have the following tag line on all of our individual postings:
The National Safety Council is an Equal Opportunity Employer of Minorities, Females, Protected Veterans, and Individual with Disabilities
In terms of best practices, would you recommend we have this statement on our careers page too?
The regulations require that federal contractors must, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to their protected veteran status.
Contractors are also required under VEVRAA and Sec. 503 to notify applicants and employees of their rights and the contractor’s obligation under the law to take affirmative action to employees and advance in employment qualified employees and applicants who are protected veterans and individuals with disabilities. The law states that if the contractor utilizes an electronic application process, then providing this notice electronically would serve that purpose.
Thus, you may want to include your Equal Employment/Affirmative Action statement in your employee handbook as well as in your careers page, such that it is one of the first items that applicants see.
You can find more information on this in the Equal Opportunity Clause under VEVRAA and Sec. 503.
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.