OFCCP Ask the Experts
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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  • 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
    -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?

    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.

  • IWD Accomodation Statement
    Asked by Anonymous - Jun 05, 2017

    We are currently looking at adding our Individual with Disabilities Accommodation Statement to our Applicant Tracking System (Taleo) to increase IWD candidates and hires at our bank.

    Are there any best practices around this?

    Thank you.
    Answered by Roselle Rogers from Local JobNetwork™ - Jun 26, 2017
    As a best practice, you should include your disability accommodation statement at the beginning of the application process. This should be prominently displayed and not buried deep in other pages on your career site. This would notify applicants that you are an equal opportunity/affirmative action employer and it would provide them with information on how to request an accommodation during the application process. Ideally, it should include the name of the person to contact, a phone number and/or an email address, and the process for requesting an accommodation. The simple way to think about it is: If an applicant had a disability that required them to request an accommodation in order to apply, would they be able to do that? Would they be able to find the contact information right away? If they contacted that number, would they be able to get the assistance they need to complete the application? That is the general principle behind this.

    Beyond posting your disability accommodation statement, you might also want to test your online application system to make sure that all of the relevant information can be read by an applicant who is using a screen reader or other assistive technology. Some best practices for website accessibility include providing text equivalents to images and other visual material, providing captions for audio or video files, providing the ability to increase font sizes, and the like. You can find more information on website accessibility best practices on the Job Accommodation Network (JAN) website.

  • Executive Order 13706
    Asked by Tara W. - May 31, 2017
    I wanted to clarify Executive Order 13706 on paid sick leave for federal contractors. We are not sure we fall under the requirements. We are a collection agency contracted by the department of Education collection on defaulted student loans. The SCA wages do not state it as a required benefit and the Ex Order states that it applies to new contracts and replacements effective 1/1/2017. Our contract was initiated November 2016. It also states it applies to federal contracts for construction and “many types of federal contracts for service.” We didn’t feel it applied to us. But now we are wondering if it does or if we should implement it to error on the side of caution. I would love to hear your thoughts on this matter. Thank you for your time in advance!

    Answered by Roselle Rogers from Local JobNetwork™ - Jun 01, 2017
    Executive Order 13706 is enforced by the Wage and Hour Division, and is not under OFCCP enforcement. This Executive Order applies to new and replacement contracts with the federal government “that result from solicitations issued on or after January 1, 2017 (or that are awarded outside the solicitation process on or after January 1, 2017)."

    This covers contracts that fall under the following major categories:

    1. Procurement contracts for construction covered by the Davis-Bacon Act (DBA)
    2. Service contracts covered by the McNamara-O’Hara Service Contract Act (SCA)
    3. Concessions contracts, including any concessions contracts excluded from the SCA by the Department of Labor’s regulations at 29 CFR 4.133(b)
    4. Contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public
    5. Any subcontract of a covered contract that (like the upper-tier contract) falls into one of the above four categories

    That said, the Rule will still apply to a contract in effect before January 1, 2017, if it is renewed, extended, or amended on or after January 1, 2017.

    The best approach for you would be to contact the Wage and Hour Division or consult with an AAP attorney to determine whether your company is subject to the requirements of EO 13706 based on the specific contract that you have.

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.