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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.
I'm trying to find guidance on how to determine if we have multiple establishments for our Affirmative Action Program. I've read that any location with 50 or more employees needs its own program, but I've also read that if the locations are in the same labor market or recruiting area that they can be included in the same plan.
Are there any rules that define how a labor market is determined for a location? For example, I assume that if we have multiple physical locations in the same city then it would be appropriate to combine those locations in the same AAP. If we have over 50 employees in both Buffalo, NY and New York, NY could they be considered in the same labor market of New York state, or do we need to go by the metro-areas?
In regard to having separate AAPs, the fundamental rules are found in the Code of Federal Regulations (CFR) at 41 CFR 60-2. Those regulations state as follows:
"(d) Who is included in affirmative action programs. Contractors subject to the affirmative action program requirements must develop and maintain a written affirmative action program for each of their establishments. Each employee in the contractor’s workforce must be included in an affirmative action program. Each employee must be included in the affirmative action program of the establishment at which he or she works, except that: (1) Employees who work at establishments other than that of the manager to whom they report, must be included in the affirmative action program of their manager. (2) Employees who work at an establishment where the contractor employs fewer than 50 employees, may be included under any of the following three options: In an affirmative action program which covers just that establishment; in the affirmative action program which covers the location of the personnel function which supports the establishment; or, in the affirmative action program which covers the location of the official to whom they report. (3) Employees for whom selection decisions are made at a higher level establishment within the organization must be included in the affirmative action program of the establishment where the selection decision is made. (4) If a contractor wishes to establish an affirmative action program other than by establishment, the contractor may reach agreement with OFCCP on the development and use of affirmative action programs based on functional or business units. The Deputy Assistant Secretary, or his or her designee, must approve such agreements. Agreements allowing the use of functional or business unit affirmative action programs cannot be construed to limit or restrict how the OFCCP structures its compliance evaluations."
Thus, the simple answer to your question is that every "establishment" of 50 or more employees must have an affirmative action program. There is no exception made for establishments in the same labor market or recruiting area.
OFCCP will, at times, allow organizations to include two establishments in the same city to be combined into one AAP. However, the agency is not required to do so. The agency would unquestionably say that establishments of over 50 employees in Buffalo NY and New York NY would need to be in separate AAPs.
If you want to combine establishments because they are part of a joined business unit or functional area, you could go through the process of reaching a functional AAP agreement with OFCCP. However, there are pros and cons to this approach which are too lengthy to discuss here.
An important consideration is this: organizations are better off having a smaller number of employees in any given AAP. AAPs with larger numbers are more likely to have statistical disparities just because there is more data involved. Thus, having an AAP for each establishment often benefits an organization from a strategic standpoint, even if it creates more administrative work.
A final note: organizations should actually have three AAPs for each establishment. There should be an AAP under the Executive Order, an AAP for individuals with disabilities, and an AAP for protected veterans. The federal regulations regarding individuals with disabilities and protected veterans do not contain the same exact rules regarding who should be included in each AAP like the Executive Order regulations do, but it makes sense that the persons and data in each AAP should be parallel.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 05, 2017
This is a very good question. OFCCP does not define "establishment." It often makes sense to break AAPs down by location, but this is not required. It really depends on the company's circumstances. The only "rules" that apply to the plans are the laws enforced by OFCCP (all in the Code of Federal Regulations), so there is not much information on which to base the decision. However, there are some important strategic decisions that help in the event of an audit. This is completely case-specific to each company. The flexibility in the law allows each company to determine how to best map its plans. Satellite or remote employees should be included in the plan of their manager, versus including them in the nearest location. (See number 1, above.)
Post-Offer Self-ID Requirements for Internal Hires
Asked by Heather C. - Aug 30, 2017
Currently, our system provides the post-offer self-id forms to new hires via our electronic onboarding system. However, if we hire an internal employee to fill an open position, they do not go through this onboarding system because they are already active in our HRIS. So, internal hires are not being given post-offer self-id forms to complete. Is it a requirement that we ask internal employees to complete paper self-id forms if hired into a new requisition/position?
Excellent question, Heather. There is no requirement to make an additional inquiry at the time a current employee is selected for a new position. This assumes, however, that the other requirements of 41 CFR 60-741.42 and 41 CFR 60-300.42 are being followed. Specifically, we solicit self-ID info pre-offer, post-offer, every five years, and once between the five year intervals. OFCCP has a form that is required for disability self-ID and a compliant sample form for Veteran self-ID on their website.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 01, 2017
I receive this question fairly often, so wanted to add one small point. Think about how you are defining these individuals - they are not likely truly hires, but rather promotions or transfers. Therefore, as said above, they are not subject to the same self-identification requirements when onboarding in your example.
Employee Declines to Identify Gender - AAP/EEO-1 Reporting
Asked by Anonymous - Aug 24, 2017
When employees decline to identify as a gender, must a visual be made in order to report these employees for EEO-1 and AAP purposes?
No. The regulations at 41 CFR 60-1.12(c) states "where possible" the contractor must be able to identify gender (see below). Additionally, OFCCP Directive 283 says a contractor "may" use visual observation for race, but it is not required (see below):
41 CFR 60-1.12 (c) Contractor identification of record. (1) For any record the contractor maintains pursuant to this section, the contractor must be able to identify:
(i) The gender, race, and ethnicity of each employee; and
(ii) Where possible, the gender, race, and ethnicity of each applicant or Internet Applicant as defined in 41 CFR 60-1.3, whichever is applicable to the particular position.
OFCCP Directive 283
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:
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)
I think Marilyn has provided some useful information. However, there appears to be some divergence in opinion on a question you didn't ask, which is this:
When employees decline to identify a gender, are we allowed to show them as "unknown" in reports to EEOC and OFCCP?
On that point, EEOC has provided the following response regarding race/ethnicity which can be found at https://www.eeoc.gov/employers/eeo1survey/sample_self_identification.cfm:
"All employees must be accounted for. There are no "OTHER" or "UNKNOWN" race/ethnicity categories."
It seems clear that if an employee must have a known race/ethnicity, the employee must also have a known gender.
While OFCCP has not provided specific and direct guidance on this issue, there is nothing in the agency's regulations to suggest that "unknown" is a valid option regarding the gender of employees. As Marilyn notes, 41 CFR 60-1.12 clearly suggests that it is permissible to have applicants of unknown race or gender. However, there is no language in any regulations or FAQs that suggest contractors can use "unknown" as a valid race/ethnicity or gender for employees.
We live in a society where EEOC and OFCCP are clearly failing to understand the times we live in. The nice, clean bifurcation that the agencies have adopted for reporting purposes where employees are "male" or "female" does not reflect a world where we have transgender employees and employees who refuse to identify as one gender or another. Oddly enough, both agencies prohibit discrimination based on gender identity, and yet both agencies require employers to report the gender of employees in an either/or fashion.
Thus, I agree with Marilyn that the direct answer to your question is "No, you don't need to do a visual identification." I also believe that EEOC and OFCCP are doing employers a disservice by failing to recognize that there are employees to do not self-identify gender in a traditional sense. However, it seems clear to me that both EEOC and OFCCP require that when employees fail to identify race/ethnicity or gender, that the employer must find a way to provide a race/ethnicity and gender that falls within the traditional race/ethnicity classifications and the traditional male/female boundaries.
Letters to subcontractors, suppliers and vendors outside the U.S.
Asked by Theresa C. - Aug 22, 2017
I sent out our vendor letters in compliance with OFCCP to all our subcontractors, suppliers and vendors. I got a call back from a Canadian supplier who says it does not apply to them because although he is a US government contractor, there is no AA requirement in Canada. I got a response back from another Canadian supplier with answers to the questions. Should I be sending the letter to suppliers outside of the US? Do they need to comply with the items outlined?
First, what is the OFCCP regulatory requirement to send out letters, and to whom? Second, does the OFCCP’s jurisdiction extend to companies outside the United States? Third, why might some Canadian suppliers choose to respond?
First: The OFCCP’s Regulatory Requirement
In both the veteran and disability regulatory requirements, there is a mandatory obligation to engage in external-facing tasks, specifically: external dissemination of policy, outreach and positive recruitment. The legal citation for this obligation is found at 41 C.F.R. Section 60-300.44(f)(1)(ii)(veteran regulations), or 41 C.F.R. Section 60-741.44(f)(1)(ii)(disability regulations).
The sending out of letters is required by the portion of the regulation that reads: “(ii) The contractor must send written notification of company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part.” The OFCCP does not explain what this “appropriate action” is or what the recipient of the notification is expected to do. The regulation also does not require the sender to ask the recipient to send anything back. It is one-directional. The sender needs to maintain records of when the communication was sent out, and to whom, but there is no requirement that the person or company receiving it sign it, acknowledge it, or send back any type of affirmation.
The written notification can be a letter, an email, or a statement on a purchase order. Employers have flexibility in the form of the “written notification.”
At the bare minimum, it would be compliant for the communication to say, “This company is a federal government contractor. Our policy is to provide equal opportunity to applicants and employees. We take affirmative action with respect to women, minorities, protected veterans and individuals with disabilities. As applicable, we request appropriate action on your part.”
Some companies may choose to say more about their equal employment policies, outreach, external efforts, positive recruitment, and affirmative action initiatives, but there is nothing in the regulations that requires it. Some companies use this written notification obligation to say a lot more about what a covered subcontractor may be expected to do, depending on the size of the subcontract and the first-tier contractor's perception as to whether its supplier already knows or does not know about OFCCP's compliance obligations. Some companies know not everyone reads the fine print in master agreements, and may miss cross references to OFCCP’s flow-down clauses. The recipient may not know about EEO-1 filing obligations, or VETS-4212 filing obligations, and so the prime or first-tier contractor wants to make certain that it is clear in what obligations covered subcontractors, vendors, and suppliers are required to undertake.
But whether a company chooses to expand the scope of this written notification requirement is different from what the regulations require.
Second: Does OFCCP’s Reach Extend To Companies Outside the United States
No. The United States government’s agencies can choose to buy goods from a Canadian supplier. If the Canadian supplier does not have a U.S. subsidiary, OFCCP does have jurisdiction to audit it. The response that came back from the Canadian company was correct. It does not have to comply with OFCCP’s laws and regulations. You do not need to send letters to foreign companies.
Third: Why Might Some Canadian Companies Send Back A Response?
Canada has regulations that are similar in some respects to ours. Some Canadian companies are required to prepare Employment Equity Plans (EEPs). Canadian companies doing business with the Canadian government are familiar with these similar types of American equal employment requirements and questionnaires, and may reply to a U.S. letter because they already are doing these things at their Canadian operations. They might want their American purchasers to know they are doing these things in Canada. Perhaps the American purchaser will continue to buy from them because they already are compliant in Canada.
Contacting Candidates from a Database Search
Asked by Anonymous - Aug 21, 2017
We are considering use of an external resume database for some of our positions. Job seekers would then be invited to apply to the position through our website.
If a search returns 30 job seekers (which are all considered by assessment of their resume and all meet the basic qualifications of the job), I understand that all of those resumes must be retained. However, are we required to also invite all 30 job seekers to apply? Or may we be selective in who receives an invitation? Could we also choose to not invite any of them?
You are not required to invite any of them to apply, and you may restrict your invitations to a select few. You should, however, retain the search criteria used and the date of the search, in addition to the resumes resulting from the search. Please also note that you would still be required to follow standard posting requirements for the positions.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 25, 2017
They are all applicants in your scenario, unless excluded for another reason (i.e. self-select out). Whether they are selected to go further in the process is up to the company. You can choose one, some, all or none to go forward. Track it as you would any step in your applicant process and if overall impact, check this step as well.
Hiring Events - On the spot offers
Asked by Anonymous - Aug 10, 2017
We are looking to do an in person hiring event and our leaders would like to do on the spot offers/letters on intent to hire at this event. While we encourage everyone to complete an online application, we are opening this event up so I imagine we'll have interested candidates show that may not have an application on file.
Can you offer any guidance on the best way to handle this type of event? Or any resources that may help? Or is it ok to have a contingency letter drafted saying we are interested and want to move forward with you if you meet all the outlined qualifications...
The simple answer to your question is this: you should always make candidates follow your standard process for expressing interest. If you generally require that candidates complete an online application, then you should ask candidates who are at your hiring event to complete the online application.
It's not clear from your post above why you are doing "an in person hiring event," and why this would necessitate making immediate offers to candidates. There certainly are circumstances in which companies want and need to make immediate hires. For example, if you have a huge new order for products or services that requires you to immediately add employees, an in person hiring event may make sense. However, if your company's standard hiring process is to require candidates to apply online after posting an opening, then there should be some well defined reason for deviating from this process.
One way to think about this situation is to consider it from the perspective of someone from a governmental agency who may be asked to determine whether your hiring process discriminated against some protected class. The representative of the government agency is going to want to compare the credentials of candidates who expressed interest against the credentials of candidates who were hired, and is going to want to understand how your selection process worked and who was involved in the process. If hiring managers are allowed to deviate from your standard selection processes and make offers to people on the spot at your in person hiring event, they will need to be able to clearly state why the persons selected are more qualified than others. A governmental representative will not accept the idea that the pressing need for people allowed you to hire demonstrably less-qualified candidates.
If you still want to do an in person event and you don't want to make people go home and apply online, then you may want to consider having kiosks available at the event so that people can apply while they are there. That way, at least you'll have collected all the information you need to determine who the best qualified candidates are. Then, if you want to tell some candidates that you are seriously considering them for hire, you'll be able to quickly look at the qualifications of other candidates to ensure you are hiring the best qualified people.
I understand the need to quickly hire people when you have pressing business. From a compliance perspective, though, it's important to recognize that the government will always expect that you can prove you hired the best qualified person. Making offers on the spot has the potential to leave you vulnerable if you can't provide this proof.
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.