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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.
It is perfectly acceptable to post internally first, and if not filled, to then go externally.
AA plan requirement
Asked by Anonymous - Oct 22, 2018
Our organization has several companies under it, that all have their own branding, finances, and company FEINs (over 20) . Employees, however, are grouped and paid under single FEINs based on the type of business (one of 7 at the moment).
We have one newer company that had federal contracts and over 50 employees. Would we need to have an AA Plan for the whole organization, or just that company?
This typically requires the employer to gather the facts in response to the questions and then seek a legal opinion about whether the facts support a single entity conclusion.
If there is any way for you to take this question out of the public forum and ask it privately, I would encourage you to do so.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 22, 2018
The OFCCP will typically do what they call a "single entity" analysis to determine whether the rest of the company or other unit of the company should be included or have their own AAP. The essential question is whether the company that has the contracts operates separately? Sometimes the single entity question is difficult to determine and therefore, it becomes a question of risk. If unable to determine whether a unit of the company is a single entity then the question becomes whether the company wants to have the AAP for those units just in case the OFCCP disagrees on jurisdiction. Just because a company drafts an annual AAP, it does not mean that the company consents to OFCCP jurisdiction.
The single entity test requires OFCCP to consider whether:
the entities have common ownership; the entities have common directors and/or officers; one entity has de facto day–to–day control over the other through policies, management or supervision of the entity’s operations; the personnel policies of the entities emanate from a common or centralized source; and the operations of the entities are dependent on each other, e.g., services are provided principally for the benefit of one entity by another and/or both entities share management, offices, or other services.
See https://www.dol.gov/ofccp/regs/compliance/faqs/ForEmployers/ForEmployersQ34.htm for more information.
Demographic Data Collection - Withdrawn Applications
Asked by Anonymous - Oct 11, 2018
My question is in regard to collection of demographic data for OFCCP auditing purposes. Currently, our applicant tracking system allows applicants to "withdraw" their application at any point. This is true even if the applicant has been fully dispositioned and their application is no longer active. For example, if their application status is "Interviewed - Not Hired", they may withdraw.
That being said, my question is as follows:
"In instances where applicants have been fully dipsoisitioned (a reason was designated for non-selection) and the applicant subsequently withdraws, would their demographic information still need to be part of the OFCCP report?"
My thought is "yes" given that not including their demographic information would improperly skew the analysis. For example, let's say five applicants were interviewed. One person receives the offer and four receive the "Interviewed - Not Hired" disposition (which of course has it's own sub-reason codes). If all four of the non-selected applicants withdraw and we omit their information, the analysis may incorrectly show that only one person was ever interviewed.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 22, 2018
Assuming your company is using the internet applicant rule, the company must collect the data if the applicant receives an offer. (See rule below.) On those that did not receive an offer, unless the applicant withdrew during the selection process, the demographic data should be kept. Therefore, your instincts are correct.
By the way, make sure to differentiate between status codes and disposition codes. Status codes identify where the applicant is in the process (e.g., "Interviewed") and dispositions identify why the individual was not hired, or that he or she was hired (e.g., "Not hired, late for interview" or "Offer declined") (It's possible your company has the disposition in the "sub-code," but it's worth mentioning here.)
An “Internet Applicant” is an individual who satisfies all four of the following criteria:
The individual submitted an expression of interest in employment through the Internet or related electronic data technologies; The contractor considered the individual for employment in a particular position; The individual’s expression of interest indicated that the individual possesses the basic qualifications for the position; and The individual, at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removed himself or herself from further consideration or otherwise indicated that he/she was no longer interested in the position.
Proper Disposition Code
Asked by Jessie C. - Oct 08, 2018
During the recruitment process we will sometimes leave open a position until the actual hired candidate starts their 1st day of work.
What is best way to disposition those applicants who applied during the time period "after we made a hire but before that hired candidate actually started work".
We never look at these applicants. Can we utilize "Applicant Not Considered - Late Hire"?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 09, 2018
Yes, that disposition is fine. It is especially good that this is a rule followed 100%, so the company will be consistent in its application. As with any disposition, best practice is to ensure that everyone using the disposition understands the definition behind it. In an audit, you should be prepared for a question such as, "If no applicants are considered after the decision is made, then what is the purpose of leaving the position open past that date?"
Applicant - Inactive Posting
Asked by Everett L. - Oct 08, 2018
We have a situation where we are attempting to hire an old applicant that applied for a position back in January. The job posting is currently inactive and we were wondering what was the best course of action moving forward. Should we disposition the candidate and have him apply to a more recent posting?
I would not reactivate the old job posting, Everett, and would disposition this individual as not selected for whatever the reason was for that particular opportunity.
I'm not a fan of "sham" postings and they really are a waste of everyone's time, particularly those new/additional job seekers who apply thinking they actually have a shot at the opportunity. However, I know these things happen and IT IS PERFECTLY LEGAL TO RECRUIT/INVITE particular individuals to apply for any posted opportunity. "Best practice" in such cases would be to genuinely "consider" -- i.e., evaluate the qualifications of those persons who expresses interest and possess the "basic qualifications" (as defined in OFCCP regulations) in addition to the individual you already have your eye on. You might be surprised! Or not. In any event, be prepared to defend your selection of this person based on his or her competitive qualifications with others who express interest.
It's not clear to me from your question if you have an existing open and posted position suitable for this candidate. If so, by all means direct him or her to apply against that vacancy, following all your "rules" for expressing interest.
If you are going to post something new for purposes of selecting the January job seeker I remind you to do the necessary outreach in the listing of the job BUT I suggest that you leave the posting up for a very brief time (e.g. 3-5 days) to limit the number of job seekers for whom you might make any selection decisions. Not surprisingly the OFCCP is extremely skeptical of "single applicant hires" but if this is a position for which you typically recruit/hire multiple times in a year, it's unlikely that this particular situation -- which I trust is unusual? -- will be noticeable in aggregate data. Best wishes, Ellen
Writing Samples for Applicants
Asked by Anonymous - Oct 03, 2018
We currently have a communications position open and the hiring manager would like to review writing samples of applicants. I know that we can't score or grade a writing sample without it being validated, as this would be considered a test. However, would it be appropriate to utilize a writing sample as part of the behavioral interview screening. There would be no scoring or right/wrong answer.
For example: 1) Have the applicant bring a writing sample with them to the interview. 2) Hiring managers asks questions of candidates as to why they structured the writing the way they did?
*** Why did they choose a specific word choice? *** How did the audience impact their decisions in how to structure the document? *** How did they work with internal business leaders to understand important information to include? *** Etc...
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 03, 2018
Each procedure or step of a hiring process is a "test" in that the applicant must "pass" a certain step in order to move forward in the process. Pursuant to Sec. 60-3.3, (see below) validation is required if the component, in this case reviewing a writing sample, results in adverse impact and there is no nondiscriminatory reason for the impact and there is no reasonable alternative for the component. Validation is not required if there is no adverse impact.
In your example, it would be tough to argue in an audit that the writing sample is relevant to the job if it is not used as a screening measure. In other words, if the writing sample does not affect an applicant being hired, then it is not a best practice to have that as a part of the process. If you would like to review a writing sample, ensure that there is no adverse impact from this component of the hiring process.
Sec. 60-3.3 Discrimination defined: Relationship between use of selection procedures and discrimination. (A) Procedure having adverse impact constitutes discrimination unless justified. The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines, or the provisions of section 6 of this part are satisfied.
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