OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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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  • Fake Jobs
    Asked by Anonymous - Jan 09, 2018
    Hi,

    Can we post "fake" jobs for market research purposes?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jan 10, 2018
    There is nothing in the regulations that the OFCCP enforces that would prohibit a company from posting a job with no intent to hire. However, there could certainly be other laws or regulations that impact such a situation.

     
  • Excluding EEs & Effect on Establishment Size
    Asked by Anonymous - Jan 09, 2018
    When employees are excluded from one AAP to another, does the establishment's size change? For example:

    100 employees are located at Location A.

    52 employees are located at Location B. 5 employees report to managers at Location A and are excluded to that plan.

    Do the exclusions effectively reduce the size of Location B to 47 employees? Can both locations be rolled up into a single AAP or are separate AAPs required?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jan 09, 2018
    The regulations do not require a certain number of employees or a certain distance between locations for AAPs. The plans are done by "establishment," but this word is not defined in the regulations. In your example, assuming that all of the employees work for the same company, it really depends on a number of factors whether you would want one or more plans. It depends on the demographics, location, types of jobs and perhaps some strategic factors. Because less than 50 employees are at another location does not mean that these employees are not included in a plan. A company can have an AAP with less than 50 employees at a certain location. Hope this helps, Lisa

     
  • Federal Contractor and Temp Agency Relationships
    Asked by Lisa G. - Jan 09, 2018
    In contracting with a temp agency, what are a federal contractor's responsibilities in relation to OFCCP?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jan 09, 2018
    Hi Lisa,

    The regulations specifically address this very common concern. In short, the temp agency is like an extension of the company for compliance purposes. Using a third party staffing agency does not exempt a company from the regulations enforced by OFCCP (Sec. 60-3.10). Thus, all the requirements under the regulations still apply, such as posting, listing, outreach, compliant selection procedures, and adverse impact analyses. The text of the regulation is below. Hope this helps. Lisa

    Sec. 60-3.10 Employment agencies and employment services.

    A. Where selection procedures are devised by agency. An employment agency, including private employment agencies and State employment agencies, which agrees to a request by an employer or labor organization to devise and utilize a selection procedure should follow the standards in these guidelines for determining adverse impact. If adverse impact exists the agency should comply with these guidelines. An employment agency is not relieved of its obligation herein because the user did not request such validation or has requested the use of some lesser standard of validation than is provided in these guidelines. The use of an employment agency does not relieve an employer or labor organization or other user of its responsibilities under Federal law to provide equal employment opportunity or its obligations as a user under these guidelines.

    B. Where selection procedures are devised elsewhere. Where an employment agency or service is requested to administer a selection procedure which has been devised elsewhere and to make referrals pursuant to the results, the employment agency or service should maintain and have available evidence of the impact of the selection and referral procedures which it administers. If adverse impact results the agency or service should comply with these guidelines. If the agency or service seeks to comply with these guidelines by reliance upon validity studies or other data in the possession of the employer, it should obtain and have available such information.

     
  • Applications imported from job boards
    Asked by Denise S. - Jan 09, 2018
    About 80% of our applicants apply from a job board and the application is imported into our applicant tracking system. The applicants are not accessing the EEO, Disability of Veterans questionnaires. What obligations are on employers in this case? What best practice recommendations are there?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jan 09, 2018
    Hi Denise,

    Compliance law and regulations require this information. However, there is no bright line rule as to what percentage of applicants must respond to the voluntary self-identification rules. It needs to be enough so the company, and the agency, can conduct a meaningful analysis. With such a low number of applicants accessing the questionnaires, I would recommend that perhaps you assess whether alternate methods of self-identification can be used in the company's application process. You may require that the form be returned, so it is good to make sure that all applicants have reviewed and returned the form. (Of course, the applicant is not required to self-identify.) If a company does not collect sufficient data, then it is very difficult to fight allegations of systemic discrimination.

     
  • Multiple Requsitions for Same Position
    Asked by Diane F. - Dec 27, 2017
    We often post multiple reqs for the same position because we are creating a req for each opening available. However, with our new ATS we can not transfer applicants from req to req and I'm finding my self in a position where applicants are applying to multiple reqs and/or I have made hires and need to move applicant data unable to do so. What is best practice?
    Answered by David Cohen from DCI Consulting - Dec 29, 2017
    The best practice would be to open a single requisition that has multiple positions to be filled. This will allow you to have one requisition with all job seekers attached and that requisition will have multiple selections.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jan 02, 2018
    I agree with the above response. In addition, please note that when a company representative transfers applicants to other requisitions, it can lead to problems in an OFCCP audit.

     
  • Manager Interview Training
    Asked by Krissy R. - Dec 14, 2017
    Could someone point me in the right direction for Manager Interview Training. The Do's and Don't when it comes to interviewing a candidate.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Dec 18, 2017
    Hi Krissy,

    Unfortunately, there is no list that makes this easy. There are a lot of nuances to the laws and regulations that cover this topic and the facts of your particular company may impact the answer as well. Remember that OFCCP (and EEOC) often uses statistical analyses to determine whether a step in the hiring process such as an interview has adverse impact, so something seemingly innocent may in fact be a violation. However, keep in mind that one should be able to go back in time and determine why an applicant was not hired or why one applicant was hired over another, so good record keeping and objective notes from managers are important.
    Answered by David Cohen from DCI Consulting - Dec 18, 2017
    Hi Krissy,
    If you are a SHRM member they have a lot of great resources for this type of training.

     
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