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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  • Adverse Impact Population Pools
    Asked by Anonymous - Jul 12, 2017
    When comparing Promotions/Employees, is it appropriate to add selections back into the overall employee pool?

    For example, say we have 500 active employees when our data snapshot is taken. During the plan year, 50 employees are selected for promotion. Should the promotions be added into the employee pool? I feel like this would falsely inflate the population by counting those employees twice.

    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Jul 12, 2017
    Some federal contractors use "beginning of year" data to establish the pool from which promotions are selected. This avoids having to add the employees back into the denominator. However, if you are only using a single "end of year" snapshot, the successful promotions should be deleted from the job group into which they were promoted, and added to the job groups from which they came. This avoids the artificial inflation problem you identified.

     
  • Narrative component of the AAP
    Asked by Anonymous - Jul 12, 2017
    We annually track and analyze our recruitment and outreach efforts as required, but I am curious if it is sufficient to do this through a spreadsheet tracker or if should be including a more comprehensive narrative analysis? Additionally, are we required to update the AAP narrative annually? I believe we are, but I am curious as to whether others do this or consider the outreach evaluation document as sufficient to meet this requirement.
    Answered by Bill Osterndorf from HR Analytical Services - Jul 12, 2017
    To answer your last question first, AAP narratives should absolutely be updated annually. The narratives should correspondence to information associated with the statistical reports in your AAPs, and the statistical reports must be updated annually.

    In regard to the analysis of outreach that is required in the Vet and Disabled AAPs, this is an important section of the AAP narrative that absolutely should receive attention every year. The narrative should be revised each year to reflect information coming from your data metrics, and should also be revised to reflect specific outreach activities that effective and ineffective in the previous year.

    For the Vet and Disabled AAPs, a spreadsheet tracker might be sufficient to demonstrate specific outreach activities so long as the spreadsheet provides information on whether outreach activities were effective or ineffective. However, the spreadsheet would not be sufficient to deal with the required evaluation of outreach if it doesn't provide some kind of analysis of the data metrics collected on applicants, "hires", and so on.

    For the Executive Order AAP, a spreadsheet with outreach activities may be helpful. However, there are many statistical sections in the Executive Order AAP, and thus there are potentially a significant number of narratives to update in the Executive Order AAP.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jul 12, 2017
    How you track is less important than what you're doing and what your results are. I always recommend to look at this practically. The purpose of these rules is to bring in qualified candidates with particular traits. If the company is not meeting the goal in a particular area, then what else is it doing to try and reach out to these groups. For those job groups or areas that your company may find particularly challenging to meet its goals, it may want to provide additional information about what it has done to try and reach these groups. There are no specific rules on what information you must provide in the event of an audit, but more information, especially if the company fall short of a particular goal, is usually helpful. Of course, you must be able to balance that with your other responsibilities. Regarding the second part of your question, the narrative portion of the affirmative action plan, yes, those must be updated each year. In some sections the language may not change, or change much, but in other sections it may. It is important that each section be current with both the law and Company practices.

     
  • Affirmation Action Plan - Under 100 Employees
    Asked by Anonymous - Jun 29, 2017
    We are a federal contractor with 89 full-time employees. It is my understanding that we do not need an Affirmative Action Plan until we hit 100 employees. Is this accurate? If so, once we hit 100 employees will we need to report any years prior or just at 100 employees and above?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 29, 2017
    No, that is not correct. According to 41 CFR 60-1.40, which covers Affirmative Action Programs, the employee minimum for supply and service contractors which requires a written AAP is 50 employees.

     
  • What census bureau information should we use?
    Asked by Anonymous - Jun 29, 2017
    My question is: What census bureau information should we be using to conduct the Availability Analysis of our Affirmative Action Plan? All of our branches are in Dane County. In the past we have used the US Census Bureau’s Community Survey 2006-2010 (EEO-All3R) for both WI and Dane County. This was compiled by the WI Dept of Workforce Development. Is this the most up-to-date information available?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 29, 2017
    The regulations at 41 C.F.R. § 60-2.14(d) require companies to "use the most current and discrete
    statistical information available to derive availability figures," as you probably know from the manner in which you phrased your question. It may be a good idea to contact the WI Dept of Workforce Development for details on their process and how current the data may be and if it is the same data from the 2006-2010 EEO Tabulation. According to the OFCCP, "On November 29, 2012, the United States Census Bureau released the [2006-2010 EEO Tabulation] 2010 EEO Tab to the public. This EEO Tab replaces the Census 200 Special EEO File that OFCCP and covered federal contractors began using in January 2005.... Contractors must begin using the 2010 EEO Tab to develop all AAPs that commence on or after January 1, 2014.... The 2006-2010 EEO Tabulation is available on the Census Bureau’s Web site at http://www.census.gov/people/eeotabulation/data/eeotables20062010.html."


     
  • AAP recording for staff agencies
    Asked by Anonymous - Jun 15, 2017
    I am a little confused if my company needs to create an AAP. As a staffing agency we place individuals on an as needed basis to our clients who happen to be government subcontractors. For the positions that require a clearance we are listed on the DD 254 as the subcontractor, since we hold the clearances. To my understanding below are the requirements needed to complete an AAP. We as a staffing agency do not have any direct federal contracts or subcontracts with guaranteed funding. Nor do we bill the government directly for labor hours worked by our temporary individuals. We invoice the client, and they provide payment directly to us in the form of a company "logo" check. So as a staffing agency would we need to create an AAP?

    -50 employees/$50,000 Federal contracts or
    subcontracts
    -Government bills of lading totaling $50,000 or
    more in 12 months
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 16, 2017
    The law on this is very confusing and companies are often surprised to learn they may be federal contractors. (41 CFR 60-1.40) Further, there may be disagreement between the OFCCP and a company on whether a company is in fact a federal contractor. There has been significant litigation with respect to jurisdiction (the requirement to have an AAP). It is not as clear cut as one might expect. The rules on whether a company needs an AAP are vaguely defined since "subcontracts" and "contract" are not defined in the regulations. There is nothing that requires the funding be guaranteed, only that the value of the contract meet the threshold. The DD 254 Further muddies the waters for your company. It becomes a question of risk. If the OFCCP says that is has jurisdiction, the company should be prepared to respond. Note that section 60-3.10 does require the company with which you provide employees to analyze data, regardless of your company's contractor status.

     
  • IWD & Veteran Goals
    Asked by Anonymous - Jun 05, 2017
    We currently have a company goal to hire 7% of veterans and 7% of individuals with disabilities. We also have a Minority Workforce Goal.

    New this year, we embedded D&I actions into our executives business lines for the hiring of minorities and women but we did not include actions for Individuals with Disabilities and Veterans.

    Any best practices around that?

    Thanks!
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 16, 2017
    Please note that the practices for outreach for veterans (vets) and individuals with disabilities (IWDs) are slightly more aggressive in a sense. Companies are required to determine how current methods are working and then essentially re-evaluate connections to find more sources of these groups. The new Part 60-741.44(f)(3) requires that the contractor evaluate and "If the contractor concludes the totality of its efforts were not effective in identifying and recruiting qualified individuals with disabilities, it shall identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations." Part 60-300.44(f) covering veterans has similar language. To answer your question as best I can, there must be some kind of action also embedded for recruitment of these two groups. The best practice is to engage face to face and establish relationships. Document dates, times, names, etc. There are some groups listed on the OFCCP website where you can start. If there are military installations from where you can recruit, that may be a good source. Local employment service centers also typically have a vet representative. Your employees may be a part of groups from which to recruit.

     
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