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OFCCP: Ask the Experts
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.
Outsourcing open position to a 3rd party recruiter - How to best disposition and stay compliant
Asked by Meagan M. - May 25, 2018
I'm trying to figure out the best way to be compliant with OFCCP for a job that we started recruiting for ourselves but ended up outsourcing to a 3rd party recruiter (head hunter). We only reviewed about half the candidates that applied to our position before outsourcing to the 3rd party recruiter. We didn't close the position however, which was possibly where we went wrong. For those 10+ candidates that applied after we decided to use the 3rd party recruiter how do we show that they weren't actually considered for the position at all. As of right now I've marked them as "late applicants" because that is the best disposition I could find that seemed to fit. These candidates shouldn't be considered in our Affirmative Action reporting then because they weren't actually reviewed/considered by our recruiter, correct?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 25, 2018
One anomaly in a hiring practice isn't uncommon. For this situation, the best practice would be to include those applicants that you did review in the pool for analysis along with those from the 3rd party recruiter's data. Those that applied after the position was outsourced can be dispositioned as "not considered" - and they are not applicants if you are using the internet applicant rule. If you have only certain dispositions in your system and "not considered" is not one of those, then it is certainly fine to choose another as long as that disposition is equivalent to "not considered." You could also enter a note or comment to explain that these candidates were not considered.
You are correct, Meagan. You are not required to report to the OFCCP (i.e. include in any analysis of YOUR selection decisions) individuals about whom you made no employment decision -- in this case, no review/assessment of their qualifications. I think it is better that you didn't close/re-open the req because one could argue that these individuals could have "competed" with those the 3rd party recruiter outsourced -- who presumably applied later. (Are you certain that the 3rd party recruiter did not review those 10+ job seekers?)
Based on the information you provided, however, I'll assume no one reviewed those 10+ job seekers. And, I assume, that whatever the reason for not "considering" those applications was, it was NOT because they were "late". Consequently, you are also correct to be concerned with assigning a disposition code that doesn't reflect what happened.
If you have a deadline for submitting applications/resumes (and if you do, good for you!) and a job seeker doesn't meet that deadline the job seeker hasn't followed a rule for applying. Another such "rule" might be that they must apply in person. Or that they must apply on line. Or that they must provide a telephone number at which they can be reached or can receive a message. But if a person follows whatever rules you establish (and they can be different from job to job) then all such job seekers should have an equal chance to be "considered". If they don't the employer is, no doubt, "managing" its applicant pools in some fashion. And that's good, provided the employer is consistent at least with respect to the selection process for each particular opportunity. For example, if you are in a "crunch" to fill a vacancy for a position that doesn't require a great deal of skill you may conclude that for Requisition A you expect to be able to find someone qualified within a pool of, say, 30 job seekers. That's all the resumes you're going to read, period. But Requisition B is for a job that is difficult to fill and for which you don't receive many expressions of interest. For that opportunity you are going to leave the req open for a long time and read each and every expression of interest as they come in.)
Why did you not review those 10+ expressions of interest? Did you review apps/resumes as they were received and you just hadn't gotten around to reviewing prior to deciding to outsource?
Or did you not review them because you reviewed internal job seekers first?
Or because you were focused first on local job seekers because you wanted to avoid relocation expense?
When you accept (i.e. don't take down the job posting) but don't review all expressions of interest, it's important to have some protocol --unrelated to qualifications for a particular position -- to determine how you will define those that will be "considered". It is FINE not to review them all; I ENCOURAGE the smallest pool of genuine "applicants" that serves an employer's need! If you don't have such a protocol, I strongly urge you to establish such. Don't review hundreds of applications just because they are there!
If you do have such a protocol -- even if heretofore it has been "informal" -- then you need a disposition code that captures what happened, i.e., "Job Filled Prior to Review of Application". And if challenged to explain why you didn't "consider" any/all of the expressions of interest that you did not review, you need to have an answer.
It seems this particular situation was a bit unique in that you decided to outsource after you had already done some recruiting yourself. But I would be surprised if -- at least for some jobs -- most employers didn't have occasions when they received "too many" applications. In such cases, the OFCCP regulations provide important guidance on how to "manage data", but there are other, less formal and more common methods such as "rules" for applying, "first in/first reviewed", "every third resume in the stack", etc. What happened here, presumably, (whether by outsourcing or not) was something that I think is rather common, the employer made a choice without reading every expression of interest submitted. It filled the job prior to reviewing all the applications. That's the Disposition Code I recommend you add.
I hope you will allow me another recommendation In my view, the term "job seekers" is better than the term “candidate" for everyone that expresses interest unless and until such time as the employer takes some action to "consider him/her for a particular position". I believe that many people think the term "candidate" implies that the individual has already passed thru some "hoops" in the selection process -- that the employer has conveyed some greater "status" to the individual, possibly greater even than "applicant". "Job seeker" is all about what the person has done and nothing about what the employer has done. Perhaps I'm wrong, but for me the acid test is that if I applied for a job I longed for I'd feel more hopeful of success if I were characterized as a "candidate" rather than simply as a "job seeker".
Additional Outreach postings in our ATS
Asked by cheryl h. - May 22, 2018
We are contracted with LocaljobNetwork.com and our jobs are posted with all diverse organizations locally for us. In addition we are having our recruiters add at least one organization for Women, Veterans, Minorities and People with Disabilities to each job they post, is this necessary since it is already being done by our vendor? When they add it sends an email to the representative for that organization alerting them that we have a position open.
Is this a requirement in order for us to be compliant as a contractor? It is very time consuming and will continue if it is a requirement, but if it is a duplication of efforts would like to know.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 25, 2018
It depends on whether your company is meeting its utilization goals. If it is, then current methods are working and while the company must remain diligent in its affirmative action efforts, but need not necessarily develop additional sources. However, if not meeting the goal, then current methods need to be evaluated and additional sources found. (In other words, if a company is not meeting the utilization goal with current methods, then additional sources need to be identified because current sources are not enough.)
§60-741.45 Utilization goals. Part (e) states:
Identification of problem areas. When the percentage of individuals with disabilities in one or more job groups, or in a contractor's entire workforce as provided in paragraph (d)(2)(i) of this section, is less than the utilization goal established in paragraph (a) of this section, the contractor must take steps to determine whether and where impediments to equal employment opportunity exist. When making this determination, the contractor must assess its personnel processes, the effectiveness of its outreach and recruitment efforts, the results of its affirmative action program audit, and any other areas that might affect the success of the affirmative action program.
Making edits to a closed posting and reopening it under a new job title
Asked by Melissa B. - May 16, 2018
One of our managers opened a closed posting that previously had 39 applicants, changed the job title and job information and reopened it. Two candidates applied and the posting was again closed within a day. Do I need to have the posting changed back to what it was originally (job title and information) and post a new job having the candidates reapply for the new one?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 16, 2018
Best practice is to have a new posting and require applicants to apply for each job in which they are interested. It seems from the limited information we have, that this event was an anomaly and not the regular practice. That's good. If it's possible (i.e. no further action was taken on the reopened posting), it would be best to ensure that there is a record of the posting as it was originally and then open a new one and require individuals to apply directly to the new posting. As always, keep a record of anything unusual, mistakes or special circumstances in your hiring or other personnel practices in case of an audit.
Asked by Anonymous - Apr 23, 2018
Can you provide guidance on the EO language that is required for PO's and contractrs?
There is specific language found in the revised veteran and disability regulations. However, OFCCP has also issued several FAQs in this regard. The response to FAQ 38 for the revised veterans regulations (which has a parallel response in the disability FAQs) reads as follows:
"Are federal contractors permitted to combine all of the Equal Opportunity (EO) clauses required by 41 CFR 60–300.5(a), 41 CFR 60–741.5(a), and 41 CFR 60–1.4(a) (or for construction contractors, 41 CFR 60–4.3(a)) into a single, consolidated “incorporation by reference” clause?
Yes, contractors may combine all of their required EO clauses into a single “incorporation by reference” clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO “incorporation by reference” clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:
This contractor and subcontractor shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status."
Note that the clause above must be in a bold font when used in purchase orders and contracts.
As of today (April 24, 2018), federal contractors and subcontractors are also required to insert language related to Executive Order 13496 into contracts and purchase orders. There is no prescribed language in this regard, and the language does not need to appear in bold print. Here is one suggestion for this wording:
"This contractor and subcontractor shall abide by all provisions of Executive Order 13496 and all relevant rules, regulations, and orders in regard to Executive Order 13496."
Is Discharge for Discussing Pay a Valid OFCCP Cause of Action?
Asked by Anonymous - Apr 18, 2018
I am involved with a company that had an OFCCP complaint filed against them by a former HR employee. The employee had been fired for using her access to other employees' salaries to seek a raise for herself. She accessed this information without requesting any permission from either the individual employees whose information she accessed and without the approval of her superiors. The company has been informed that they were within their rights to fire the employee due to the exception for discharging HR employees (or payroll EEs) who have access other employees' salaries and use that access without permission or approval.
However, now the former employee has filed a retaliation complaint with the OFCCP, alleging that the company's stated reason for firing her was just a cover and she was actually fired for discussing her pay. Her complaint has no reference to pay discrimination based on race, sex, or veteran status. Is this a valid cause of action that the OFCCP would address or provide relief for?
It is unusual for OFCCP to receive or investigate individual complaints. Most OFCCP actions are an outgrowth of an affirmative action compliance review rather than an individual complaint.
With that said, OFCCP does have the right to investigate complaints regarding violations of its regulations, and applicants and employees do have certain protections regarding the discussion of pay under the agency's revisions to the Executive Order 11246 regulations. These revisions are an outgrowth of Executive Order 13665, which is titled "Non-Retaliation for Disclosure of Compensation Information". (The regulations themselves, interestingly, are titled "Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions." They can be found in the Federal Register at https://www.gpo.gov/fdsys/pkg/FR-2015-09-11/pdf/2015-22547.pdf.) Regardless of what they are called, the revisions to Executive Order 11246 prohibit federal contractors and subcontractors from taking action against applicants or employees for discussing pay. The relevant language is as follows:
41 CFR Section 60-1.4(a)3: "The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information."
Note that not all discussions about pay are protected, and it appears your situation may fall into one of the exceptions to the prohibition against taking action for discussion pay. The important language in the federal language for these purposes is as follows:
41 CFR Section 60–1.35: Contractor obligations and defenses to violation of the nondiscrimination requirement for compensation disclosures. (a) General defenses. A contractor may pursue a defense to an alleged violation of paragraph (3) of the equal opportunity clauses listed in § 60–1.4(a) and (b) as long as the defense is not based on a rule, policy, practice, agreement, or other instrument that prohibits employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants, subject to paragraph (3) of the equal opportunity clause. Contractors may pursue this defense by demonstrating, for example, that it disciplined the employee for violation of a consistently and uniformly applied company policy, and that this policy does not prohibit, or tend to prohibit, employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants. (b) Essential job functions defense. Actions taken by a contractor which adversely affect an employee will not be deemed to be discriminatory if the employee has access to the compensation information of other employees or applicants as part of such employee’s essential job functions and disclosed the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, and the disclosure was not in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the contractor, or is consistent with the contractor’s legal duty to furnish information."
It is possible OFCCP will take the position that your former employee was not acting improperly if she did not share the pay information with others and you do not have a policy that explicitly prohibits HR employees from looking at the pay of other employees. That will be something you should be prepared to discuss during this OFCCP investigation.
You asked whether the former employee needs to have her retaliation claim based on race, sex, veteran, or disability status. The answer here is "no." The prohibition against retaliation for discussing pay is decoupled from the traditional protected classes that are the usual subjects of an OFCCP investigation.
You may want to have a conversation with an attorney who is very familiar with OFCCP laws and regulations about the complaint that has been filed. The pay secrecy rules (also called the pay transparency rules) are relatively new and the situation you discuss above is potentially a complicated situation under these regulations.
GAIN/ GROW programs in Los Angeles County
Asked by Karen E. - Apr 18, 2018
Is there an available state workforce agency listed that participates in providing participants in the Los Angeles County's Department of Public Social Services (DPSS) Greater Avenues for Independence (GAIN) or General Relief Opportunity for Work (WORK) Program? We are being asked to be willing to consider GAIN/GROW participants for future employment openings, if they meet the minimum qualifications for that opening. I did not see these programs listed in the Local Job Network. If it's possible to add, I would like to have Linkage Agents set up to ensure that our positions are sent and reported.
We are pleased to let you know that LocalJobNetwork.com does have partners in Los Angeles County who work with the GAIN/GROW programs in the area. We have a contact at the GAIN/GROW Program Desk, as well as a general contact at the Department of Public Social Services. To reach out to these contacts, please login to your LocalJobNetwork.com account and you will be able to find them in our Outreach Management System by using the search words "Department of Public Social Services". Feel free to give us a call if you need additional assistance.
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.