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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  • Dispositioning Candidates
    Asked by Janet F. - Sep 14, 2018
    Spectra Tech, Inc. is a Nuclear, Environmental, and Engineering company and a Department of Energy (DOE) contractor. We have contracts with the various DOE facilities in Oak Ridge, TN. When they have open positions, they send out requests to us as well as many other DOE contractors. I submit qualified candidates resumes to them based on the job description. If they are interested in one of our candidates, I schedule an interview and if selected, proceed with hiring that candidate as a Spectra Tech employee working at their DOE facility site. Only if they hire our candidate do I know the status of filling their position. If they don't select our candidate, they don't let us know who was selected from another company. Are we still responsible for tracking/recording the candidates that aren't hired and dispositioning them?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 15, 2018
    Hi Janet,

    I'm not sure exactly from the facts in your questions how things are set up at your company, but I hope this helps. Your company should track information on its selection process for these candidates described above in order to fulfill its federal contracting obligations. What is the pool of candidates the company selects from in order to send an individual to the hiring authority and why were some not selected to be sent? It should be relatively easy to disposition those that are not selected for submission. Dispositions allow the company to remove individuals from the pool (those that are not considered applicants) and from its analysis (those that are applicants, but were not competitive for the job for other reasons), but are not required by the regulations. In other words, the company is not in violation of the laws enforced by OFCCP if it does not have adequate dispositions of every applicant. (I'm not recommending this practice, but want to be clear on requirements.) The issue is whether the company needs to dispositions to more precisely analyze its data. Unless there is statistically significant adverse impact or alarming trends at this stage in the process, the precise dispositions are not absolutely necessary. Once the candidate gets to the end of the process where he or she is sent to the site, it is likely the individual would remain in both the analysis and the pool.

  • EEOC Compliance for Applicants
    Asked by Becky J. - Sep 07, 2018
    We recently updated our Applicant Tracking System to require applicants to provide Race/Ethnicity and Gender information. We were wondering if you could share with us what information we are required to be collecting (or asking) from our applicants when they apply to jobs on our corporate website. In addition, when are we supposed to provide collected applicant data and to whom?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 15, 2018
    Hi Becky,

    It depends on whether your company is a federal contractor or not. To comply with the laws and regulations enforced by the OFCCP, the company must solicit race, ethnicity, sex, veterans status, and disability status during the application process if the company is a federal contractor or subcontractor. A company cannot require an applicant to provide this data. Annually, the company must submit a VETS 4212 report (https://vets4212.dol.gov/vets4212/) and the EEO-1 report (https://www.eeoc.gov/employers/eeo1survey/index.cfm).

    VETS 4212: VEVRAA requires Federal contractors and subcontractors covered by the Act's affirmative action provisions to report annually to the Secretary of Labor the number of employees in their workforces, by job category and hiring location, who are qualified covered veterans (38 U.S.C. 4212(d)). VEVRAA also requires Federal contractors and subcontractors to report the number of new hires during the reporting period who are qualified covered veterans. The Veterans' Employment and Training Service (VETS) has issued regulations found in 41 CFR part 61-300 to implement the reporting requirements under VEVRAA. The regulations in 41 CFR part 61-300 implement the Jobs for Veterans Act (JVA) amendments to the reporting requirements under VEVRAA and require the annual submission of the Federal Contractor Veterans' Employment Report VETS-4212. All nonexempt Federal contractors and subcontractors with a contract or subcontract in the amount of $150,000 or more with any department or agency of the United States for the procurement of personal property or non-personal services.

    EEO-1 : The the EEO-1 will collect data on the race, ethnicity, and sex of workers, by job category, from private employers with 100 employees or more and federal contractors with 50 employees or more and $50,000 in contract(s). Employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary. The data is collected using the reports below and is used for a variety of purposes including enforcement, self-assessment by employers, and research. Each of the reports collects data about gender and race/ethnicity by some type of job grouping. This information is shared with other authorized federal agencies in order to avoid duplicate collection of data and reduce the burden placed on employers. Although the data is confidential, aggregated data is available to the public.

    Federal contractors & subcontractors that meet certain thresholds are required to develop an affirmative action plan and ensure that other obligations are met.

  • Federal Contractor Requirements
    Asked by Pamela C. - Sep 06, 2018
    I have several questions.

    1. If a job is posted on the company website and the state board. Then the posting is closed for whatever reason (a candidate was hired; the position was closed temporarily; whatever) and then the hiring manager wants to re-open the job does it then become a new posting requiring it to be posted on the state job board?

    2. If a job is posted open on the company website and the state board of a particular state but the hiring manager then finds a candidate he likes and tells them to apply, but will now be home based at a different office in a different state, does that job need to be posted in the state where it will actually be based? Such as, a job posted in Georgia, but the person they like lives in Florida and will be home based in Orlando rather than Atlanta.

    3. If the OFCCP were to audit a company, do they expect to see the job posting requisition, verification the position was posted on the state board and when/why is was closed?

    4. I have always heard that the OFCCP strongly discourages applicants to be manually forwarded from one job posting to another; that it is strongly recommended the applicant applies to each position they are interested in or being hired for? Can you comment on the practice of a company forwarding applicants from one position to another or from a closed position to an open position?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 15, 2018
    Hi Pamela,

    1. Although arguably no in certain situations, the best practice would be to post the job again with the state employment service. This would ensure compliance in this area in case of an audit versus having to debate the circumstances of reopening the posting.

    2. The scenario described above is not a recommended practice and would likely lead to concerns by the agency in an audit. However, for remote or variable (telework) locations, according to the OFCCP's FAQs, the contractor may "satisfy the job listing requirement for a remote job by listing the opening with an ESDS in any area where qualified candidates might be found. Where the vacancy announcement indicates that the job may be performed either from a specified duty station or remotely, the contractor must list the job with the ESDS where the duty station is located, but may also list the opening with any other ESDS it determines is appropriate."

    3. Yes. Any record made or kept must be available in an audit. The agency often asks for proof of some, or all, postings.

    4. This is correct. If the company is placing applicants on requisitions or applications, then the agency often analyzes a larger pool, which is much more likely to lead to statistically significant adverse impact (SSAI). If a company is providing some applicants and forwarding them to another posting, then the agency, in order to conduct an analysis of those that competed for a job, will look at availability versus actual applicants as the pool is tainted by the company - it created an applicant pool instead of those that actually competed for the jobs. If those applicants that are forwarded are like in race, ethnicity, disability status, etc., it could appear as if the company is actively engaging in discrimination.

  • Walk-in applicants
    Asked by Alisha S. - Aug 31, 2018
    We currently take online applications only. So, we provide a card to people who inquire about jobs, with our web address for them to apply. Managers within the company have requested a solution for applicants who walk into our office to be considered while there on the spot. As we look to build a plan for handling this request, what do we need to be aware of with regards to OFCCP? I had always been told it was best to be consistent, if using online applications, do that exclusively, but I don't know if there is more flexibility than I know of?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 04, 2018
    Hi Alisha,

    You are correct in that it is best to be consistent. If walk-in applicants are considered "on the spot," then it appears they may have preference and could lead to concerns by OFCCP, or at least a closer look. However, if there is a legitimate business need to hire people quickly, it can be done, but I recommend the company proceed carefully. Ensure that there is a process. How the company develops the hiring process is dependent on the specific facts, such as for what jobs will the "on the spot" process apply for in person applicants versus website applicants. The procedure for handling walk-ins should be intentional and consistent among anyone involved in the hiring process (from receptionist to final authority). It is probably prudent for you to run your adverse impact analyses both separately for walk ins and together with the online applicants to ensure there are no disparities.
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Sep 04, 2018
    I recommend using an online application process exclusively -- if at all possible. One of the concerns about walk-in applicants is the ability to obtain self-ID info. Related to that is the risk of bias that can happen with walk-ins -- when a person's race, gender, and disability status can be ascertained before an evaluation of the applicant's credentials have been made. Further, considering walk-ins before conducting online screening might obligate the company to provide the same opportunity for an interview to applicants who do not come to the office. This list is not exhaustive, but represents some of the pitfalls related to this practice.

  • Co-Ed Housing
    Asked by Anonymous - Aug 24, 2018
    We have overseas deploying contracts where personnel are housed in off-base villas/apartments. We have looked up law to local areas regarding cohabitation, and understanding some countries do not allow males and females to be housed together if not married.

    As a company, are we required to secure housing for both males and females (even if it will not be utilized the entire time of lease) due to the makeup of the team. In other words, do we need to have additional apartment/villa rented to ensure there is separate housing for males and female in the event the team deployed will be comprised of both males and females. Personnel change approximately every 90 days, but the lease is a minimum of six months.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 04, 2018
    This is a bit out of my area of practice, but I expect that it would depend on the host country laws and any applicable contracts.

  • Demographic Data Collection
    Asked by Lisa G. - Aug 21, 2018
    As a federal contractor, we are required to collect data from applicants and employees in regard to their race/ethnicity, gender, disability and veteran status. While applicants and employees have the right not to disclose their demographic information, we as an employer, are required to collect and report. This has caused some problems for us an employer when it comes to submissions of reports with missing data. What advice do you give in regards to increase applicant/employee response participation? We have tried educational campaigns but that hasn't made resulted in a huge percentage increase and we do not feel comfortable doing a visual identification (still can't wrap my head around that). Also at what point do inquiries/requests to update their information cross the line when it comes to the General Data Protection Regulation (GDPR)? Thanks in advance for any advice you can provide.
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Aug 22, 2018
    You mention that you have tried educational campaigns with your employees. I recommend the following video to my clients, as it is short, provocative, and to the point: https://www.youtube.com/watch?v=qPVRhHB9fXs. I also recommend asking all employees, once a year, to verify that all personnel info, including demographic info, is up-to-date. While we can't require them to self-ID, we can require them to review their record. When it comes to applicants, OFCCP only asks that we do our best to obtain the demographic data. Some contractors have increased applicant response rates by eliminating default responses. This requires the applicant to affirmatively select one of the responses, and among the responses is the "I choose not to self-ID" response. Good luck!

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.