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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.
The regulations require that federal contractors must, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to their protected veteran status.
Contractors are also required under VEVRAA and Sec. 503 to notify applicants and employees of their rights and the contractor’s obligation under the law to take affirmative action to employees and advance in employment qualified employees and applicants who are protected veterans and individuals with disabilities. The law states that if the contractor utilizes an electronic application process, then providing this notice electronically would serve that purpose.
Thus, you may want to include your Equal Employment/Affirmative Action statement in your employee handbook as well as in your careers page, such that it is one of the first items that applicants see.
You can find more information on this in the Equal Opportunity Clause under VEVRAA and Sec. 503.
Maintaining a General Pool of Applicants
Asked by Anonymous - Apr 25, 2017
In order to fill jobs more quickly our company prefers to keep an applicant pool that we can refer to when an opening occurs. In the past we accepted general applications once a week at each location. Now that we are working with Local Job Network the applications are attached to a specific job. We don't want to post a general job to have people apply to. We've considered having people fill out an "interest" form on application days with their contact information and general work history and then we contact them when there is an opening and they can apply to the specific opening at that time. What would be the best practice for this so that we aren't seen as controlling the applicant process but can have quick access to candidates.
What you described here sounds more like creating an internal database of prospective candidates for future positions at your company. In that case, you need to make sure that you are following the record retention requirements under OFCCP’s Internet Applicant Recordkeeping Rule.
Federal contractors are required to save records when they search a resume database, whether it is an internal or external database. For internal resume database searches, you will need to keep a record of the following:
• A record of each resume added to the database • A record of the date each resume was added to the database • A record of the position for which each search of the database was made • The date of the search for each search conducted • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used
If you are reaching out to individuals within this database for your openings, you need to ensure that you have a standard written policy that describes your hiring process, the criteria you use to select from this database, and the requirement that interested individuals must submit an application in order to be considered for a job.
The risk that you have here is that, depending on how things are practiced, you may get into a situation where this large pool of individuals could be considered as your entire applicant pool for each of your jobs. There is a greater chance of generating false positives in bigger numbers, so you will want to keep your applicant pool to smaller numbers. Thus, having a documented policy that is implemented consistently will help minimize that risk.
Keep in mind as well that if you are a federal contractor covered under VEVRAA and Section 503, your company has an obligation to post your open positions to the state ESDS and conduct outreach. Any applicants that are generated from those efforts that meet the Internet Applicant definition will also be considered part of your applicant pool.
Reaffirmation of Affirmative Action Policy Statement
Asked by Gina C. - Apr 11, 2017
Are we required as a Federal Contractor to post the Reaffirmation of Affirmative Action Policy Statement along with the signed copy of the EEO/AA Policy Statement? It seems that it would be redundant, if doing so, since it shares the same sentiment. I'm not understanding the purpose of the Reaffirmation one and if it's an optional thing to do on our part or is it required. I can't seem to find anything out on the OFCCP website regarding this, so if you can kindly shed some light on this subject, it would be much appreciated. Thank you!
Hi Gina. The affirmative action program regulations regarding protected veteran and disability status require that federal contractors and subcontractors have an EEO/AA policy statement. These regulations require that the policy statement is posted for employees to view, and that the policy statement is included in the AAPs for protected veterans and individuals with disabilities. (See 41 CFR 60-344.44(a) and 41 CFR 60-741.44(a).) There is nothing that says there must be a separate reaffirmation of the policy.
The Executive Order affirmative action regulations for supply and service contractors do not explicitly require the creation of an EEO/AA policy statement, nor do they require a reaffirmation action the policy statement.
Job Posting & Data Collection for Temp Positions Using a Self-Sourcing Model
Asked by Gina C. - Mar 30, 2017
I have a few questions regarding self-sourcing for temporary contract types of positions. The scenario is that we (federal contractor) would self-source without any job posting for Temp Job Postings up to 72 hours and then if not, successful would turn it over to the approved 9 vendors through our VMS. In the case, we are successful and found someone on our own, through passive searches on Linkedin, associate referrals, school or local agency referrals, etc., we would then payroll the temp through a separate payroll service vendor. Our involvement would be to source and screen the candidate. They wouldn’t be an applicant, since they aren’t applying to a particular job, but would be reached out to for one. Again, it’s a “temp” and not a “perm employee”, that I’m referring to.
That all being said, would we need to have the payroll service vendor post the temp position to the State Unemployment Office even if it’s only for a 3 day time period or have them post the position for the entire 30 days, or do they need to post at all? If we had the payroll service vendor post the temp position, would we then have any resume submissions go directly to them and forwarded along to us the employer. In the case, the position were to go out to an approved vendor after the 3 days, then the staffing firm will be responsible for posting the position to the State Unemployment Office and doing any diversity outreach on their own, since the temp would be on their payroll.
My other question is on the database or resume searches, would we need to collect and retain info when it pertains to “temps”? I’m speaking on documenting the date of the search, the criteria, radius, and the results of your search (#).
Lastly, we do plan on using a Temp Only-Talent Community to collect information on referrals, those that come across our career site, or that we self-source during those 3 days only to not conflict with the approved vendors that the temp position will go out to. Is that alright that we handle the data collection in that manner?
You have raised many, many issues in this post relating to the recruitment and selection of temporary candidates. A complete response would require about 14 pages of looking at all of the intersecting issues here, and I don't think you want a 14 page treatise.
Many companies use temporary agencies in order to off-load both recruitment and selection processes. When a federal contractor signs an agreement with a temporary agency to find individuals who remain on the temporary agency's payroll, the federal contractor can appropriately say about these individuals "They don't belong to us. They are not our applicants, as we did not control the recruitment or selection process, and they are not our employees, as we do not pay them nor directly control their work status."
NOTE: there has been much discussion in the last few years about "co-employment." It is reasonable to assume that during a Trump administration, this issue of "co-employment" may become less of a concern, but it's important to understand that this issue will not entirely go away.
Back to your specific situation. You indicate above that your company (not the temporary agency) is doing the sourcing for candidates who are then sent to the temporary agency. You also indicate that "Our involvement would be to source and screen the candidate. They wouldn't be an applicant, since they aren't applying for a particular job but would be reached out to for one."
You have a problem. Based on what you've stated, your organization is not only doing recruitment, it is also also doing selection for candidates who ultimately are sent to the temporary agency. OFCCP would tell you that these candidates are, in fact, your applicants, regardless of where they ultimately end up. You are simply using the temporary agency as a holding place. When candidates come back to you through the temp agency, it is your company that has done recruitment and initial selection of candidates, and if there is conversion of any of these candidates to the regular payroll, you will have done recruitment, selection, and hire of these candidates.
When your organization does recruitment and selection of candidates, you must follow OFCCP's rules about recruitment and selection. The most basic rule says there can be no discriminatory conduct in this regard. However, OFCCP will also tell you that you need to make outreach efforts to find qualified minorities, females, protected veterans, and individuals with disabilities as part of your recruitment efforts. OFCCP will further tell you that you must collect demographic information on race, ethnicity, gender, protected veteran status, and disability status from viable candidates (i.e. from "Internet applicants"), that you need to analyze data on viable candidates, that you need to ensure you have basic qualifications for positions that are objective, non-comparative, and job-related, and so on. Finally, if you are doing the recruitment for candidates, your must list the relevant position with the appropriate state employment service office.
Here's my strong sugestion: if it is your intent to use a temporary agency in order to avoid dealing with the data collection and record-keeping associated with recruiting candidates for temporary positions, then you should have the temporary agency do the recruitment and screening of candidates. Otherwise, you will find yourself in the position where OFCCP expects that you have followed all of its rules regarding recruitment and selection for candidates who may or may not be converted to your regular payroll.
You indicate that persons to be sent to temporary agencies "wouldn't be an applicant, since they aren't applying to a particular job, but would be reached out to for one." Unfortunately, that's not the way that OFCCP's Internet Applicant rule works. The Internet Applicant rule requires that candidates express interest, but the agency has made it clear that when passive recruitment is occur, there can be a tacit expression of interest that becomes active once the candidate is contacted about an opening. Further, when you consider a candidate for a position (even if the candidate will be ported over to a temp agency), you have "consideration" under the second part of the rule and you help to establish interest by the candidate under the first part of the rule. This again leads me back to my advice that you should have your temp agency do the recruitment and selection of candidates if you want to avoid having these candidates be your applicants.
In regard to listing with the state employment service, if you continue to recruit and screen candidates and a position has a duration of four (4) days or more, you would be responsible for listing the position. If you allow your temp agency to do the recruitment and screening for candidates, then the temp agency should be told that the temp agency MUST list your potential positions with the appropriate state employment service office. If the temp agency does the recruitment and screening of candidates and does not do this listing, then your organization would be required to do this listing at the time you are considering a temporary candidate for conversion to your regular payroll. (This, of course, is a very inopportune time to do this listing, as you are unlikely to actually consider any additional candidates if you have one or more viable temps to consider for conversion.)
In regard to database searches, if your organization is doing the recruitment and selection of candidates, you would need to collect and retain information associated with that search.
I don't have much additional space to deal with your Temp-Only Talent Community question, but the bottom line is that you need to collect demographic data and record information regarding candidates your organization is involved in recruiting and screening. You may need to reconsider how you would form this talent community if you follow my advice above.
Contact me if you wish to discuss these issues further. Good luck.
Asked by Anonymous - Mar 29, 2017
I am wondering about the legality of blocking candidates on Wisconsin Diversity. I know there is a feature in which we can select that a potential applicant is "blocked" so that they do not see the postings for our company without going directly to our company website. Is this legal?
We are thinking of using this only when an individual has been proven to be someone we would not hire based on our company culture. For example, we had a candidate who has applied several times and has since lied and adjusted the uploaded resume to fit what we have mentioned we are looking for. Our company's "compass" does not allow for this kind of dishonest behavior and we would not consider this candidate in the future.
Please advise whether or not blocking a candidate is legally sound.
We'll start with the infamous "I'm not a lawyer, and can't offer specific advice on whether something is legally sound."
With that out of the way, let's explore your question. You asked if you can block specific candidates from expressing interest in positions. The general answer to this question is "Yes, so long as you do so in a non-discriminatory manner." Organizations block specific candidates or specific types of candidates routinely, and agencies such as EEOC or OFCCP will accept this approach so long as the candidates are not blocked for an impermissible reason.
One of the standard ways in which organizations block candidates is to ask qualifying questions that are tied to a position's minimum (or in OFCCP parlance "basic") qualifications. For example, if an organization is seeking a mechanical engineer, and that position requires a four-year bachelor's degree in mechanical engineering, a legitimate question for all candidates would be "Do you have a four-year bachelor's degree in mechanical engineer?" Candidates who indicate "no" would be blocked from proceeding further.
Another question an organization could ask would be "Have you ever lied when completing an application form?" Anyone who answers "yes" could be appropriately disqualified and could be prevented from moving forward in the selection process.
In your situation, you are seeking to block certain specific candidates. One example you cite is the situation where an individual lied on his or her resume. This situation seems to be equivalent to the situation in which you ask a pre-screening question about whether a candidate has lied when completing an application form. You would be disqualifying the candidate for a legitimate, non-discriminatory business reason.
Another way to think of this situation is as follows: organizations are not required to give additional consideration to candidates who could not be hired for an open position (unless the reason the candidate could not be hired is a discriminatory reason). As an example here, if an organization indicates that two years of experience are required for a position and a candidate does not have the two years of experience, the candidate could not be hired for the open position (or, at least, the candidate should not be hired) and the candidates should receive no further consideration. The using of an early screening technique to limit consideration of candidates to the subset of candidates who could be hired is typically going to be considered acceptable by EEOC and OFCCP.
The one major issue your specific question raises involves the sentence "We are thinking of using this only when an individual has been proven to be someone we would not hire based on our company culture." We have found that "company culture" can encompass many different attributes, some of which prove problematic to agencies like EEOC and OFCCP. A company culture that prohibits dishonesty on application forms is something that most of us would agree is a positive trait. A company culture that seeks to replicate the demographics and attitudes of the company is something that OFCCP, EEOC, and others would potentially find unacceptable.
In closing, then, there is a simple answer to your question about preventing candidates who have previously lied to your organization from expressing interest in future positions. EEOC and OFCCP would likely find this practice to be acceptable. However, a general lack of fit with your "company culture" would be found problematic by EEOC and OFCCP unless you can demonstrate that there are specific job-related, non-discriminatory traits associated with your company culture that are being incorporated into the screening and selection process.
If you'd like to discuss this issue further, you may e-mail me directly.
EEO Tagline Job Posting Requirements for Third Parties
Asked by Anonymous - Mar 16, 2017
Is the EEO Tagline required for a job advertisement that is trying to hire "Contractors" only? If so, does the staffing firm say something along the lines as "Our client is an EO/AA...." or can we simply put something along the lines as "Qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, sexual orientation, gender identity, disability or protected veteran status"? Also, should we as the Federal Contractor be posting our Temp Positions on behalf of these Third-Party staffing firms or should the accountability be on their part?" These positions can be short or long-term contracts and if we were to consider a temp to hire scenario then the position would be posted on our career site, which would include the EEO tagline in the actual job advertisement.
Federal contractors are required under Executive Order 11246, Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), Section 503, and Executive Order 13672 final rules to state in all solicitations or advertisements for employees that all qualified applicants will receive consideration without regard to their status as a member of a protected group. Technically speaking, your obligations apply to positions that are in your payroll. If the contractor is going to be in the staffing agency’s payroll, then the EEO tagline needs to be included in their job advertisements.
Because it is providing employees to work on your federal contract and these employees are on their payroll, your staffing agency may be considered by OFCCP as a subcontractor. The laws that OFCCP enforces apply to both federal contractors and subcontractors. As such, the EEO tagline that the subcontractor should be using will be no different than that of a prime contractor.
You are also encouraged to examine your relationship with your staffing agency employees to make sure that a joint employment situation does not exist. On January 20, 2016, the DOL’s Wage and Hour Division issued its interpretation of joint employment under the Fair Labor Standards Act. Depending on factors such as who directs, controls, or supervises the work, and who has the power to hire or terminate the employee, determine work conditions and rate/method of pay, you and the staffing agency may both be considered employers of the contractor, and OFCCP may hold you responsible for compliance, regardless of whether the individual is on your payroll or not.
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.