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OFCCP: Ask the Experts
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.
We are a Federal Prime contractor & Sub-Contractor who places IT employees on Federal and State contracted projects. These are our employees working on a state or federal work site. Sometimes we must reach out to a staffing company to fill specialized positions when our sourcing/postings are not producing qualified candidates. I've been told previously that being a Federal Contractor, any staffing company or sub-contractor we use, whether for a Federal or State position, must be compliant with OFCCP guidelines when recruiting and also receive the required "our company is a federal contractor" notice.
Two questions: 1. If our state position pays our company with state funds, must our staffing/sub-contractor company follow OFCCP guidelines and also receive the required notice? 2. If so, do we need to require them to send recruiting documentation or just have it available in case of an audit?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Mar 30, 2018
This one is a little complicated to answer without knowing the facts I’m more detail. However, I hope The info below is helpful as a guide.
1. If the individual is an employee of a company that is a federal Contractor or subcontractor, then the company must follow the OFCCP regulations, including ensuring that the proper clauses are a part of the subcontracts. When it is unclear due to the facts whether this language is required, it may ultimately come down to how your company feels about risk if your company and the OFCCP disagree - that is, would the company want to litigate the matter. From the facts above, it is likely that the company would want to include the language.
2. The company is responsible for the AFL and hires (or candidates, if the agency sends a few potential employees from whom to choose). It’s important that the agency use ONLY the hiring criteria given by your company, and not additional criteria. It’s important to request the applicant and hire data so that your company can run the required analyses, to prevent surprises an audit. The regulations state that using a third party agency does not exempt the company from non discrimination obligations, so it’s best to ensure the company understands what’s going on with the data at the hiring agency.
Confidential Search Recommendations
Asked by Anonymous - Mar 22, 2018
I'm looking for guidance on a delicate subject: confidential searches. For Sr Management and Executive level roles I know we're okay to not post them, but what are the recommendations for lower level confidential searches (i.e. there is an incumbent in the role)? We address the incumbent's performance issues as an employer but ultimately know we'll need to replace them and don't want to advertise for obvious reasons.
OFCCP does not have specific guidance on confidential searches. Absent that, OFCCP will look at it the same way as any other job you are required to post. You still have an obligation to post it. You may have a search firm post it for you to the local ESDS and you will need to provide proof of that posting as well as a record, such as an email exchange with the search firm and the two job descriptions, showing that this job posting is for your company’s job.
Acquired Employees for AAP
Asked by Anonymous - Mar 13, 2018
We've acquired a smaller company and will be retaining some of their employees. In an older post, it is stated that there is little guidance on how to handle these situations yet most companies choose to treat acquired employees as new hires. However, in our HRIS they will retain their seniority dates from prior to the acquisition.
Is it still best to categorize them as new hires or would it be better to simply list them in the employee population? Would the latter cause a disconnect with our previous plan year, since these employee's would 'magically' appear in the population? Could it be simply noted that they are acquired?
Additionally, are we responsible for collecting and including the acquired organization's applicant data for our AAP?
In checking with OFCCP, there doesn’t seem to be a prescribed method to handle this. Treating them as hires, transfers, or simply listing them, are all acceptable. The important thing is that the contractor should be able to explain the data and what happened. Each method presents its own challenges as you already stated.
You are correct that simply listing them would not align with the employees from your previous plan year, but that is explainable. Treating them as hires will have its own challenges as you may end up mixing two different applicant pools. For example, if your sales team from the other company is comprised of 9 males and 1 female, and in addition to acquiring all 10 employees, you also hired 1 male and 1 female from an applicant pool of 20 males and 20 females. You have actually selected at an equal rate; but it will look like your selection rate is 50% for males (10 hires from 20 applicants) and 10% for females (2 hires from 20 applicants). So you will need to refine your data to identify distinct groups in your applicant pool, and explain what happened.
OFCCP might also look into the employees you retained from the acquired company and how you selected which employees to retain. So make sure that you keep records documenting your selection process.
OFCCP Linkage Agreements
Asked by Chris G. - Mar 06, 2018
Does Local Job Network satisfy 1 of the 3 required “linkage agreements” required by OFCCP for compliance?
OFCCP may specify in a conciliation agreement that a contractor enter into a linkage agreement with certain organizations. However, outside of a conciliation agreement, there is no OFCCP requirement to have formal linkage agreements with organizations. The requirement under E.O. 11246, VEVRAA, and Section 503 is to conduct outreach to community-based organizations that can help you recruit and hire minorities, women, IWDs, and veterans. There is no requirement as to the number of organizations a contractor should reach out to, as what matters more is the effectiveness of these recruitment sources in referring qualified candidates for your open positions that will help you meet your affirmative action goals. OFCCP requires that contractors analyze their outreach efforts on an annual basis to see which efforts are working and which efforts are not as successful, and then take other measures to bring applicants into the applicant pools to increase the representation of women, minorities, veterans and individuals with disabilities in the contractor’s workforce. What works for every company will be different, so you will have to look at which organizations and outreach strategies work best for your needs.
Job posting wording - proposal/bid positions
Asked by Ashley N. - Mar 05, 2018
I am interested in knowing what guidelines we should be following in posting contingent/future positions. For example, we are often asked to post multiple positions for a proposal effort which we may or may not be awarded - how should that be communicated in the job description/posting, and are there any other considerations in regard to remaining compliant? We are a federal contractor. In the past, we have used, "in anticipation of contract award", or something similar. Is this sufficient? Our positions automatically post to the appropriate ESDSs. Thank you very much!
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Mar 05, 2018
I hope I'm understanding your issue. It sounds like the situation is, the company is posting a position based on a bid. If the bid is awarded, then the hire is expected to be made and if the award is not won, then there will be no hire. There are no guidelines regarding this specific situation in the laws and regulations enforced by OFCCP. There is no specific language required for contingent positions. Of course, all of the posting and advertising rules still apply.
Asked by Bridgitt L. - Jan 31, 2018
Hello, Does the OFCCP or other entity require specific naming conventions when it comes to race or ethnicity in our HCM/people management system? We are curious to know what is recommended or required when it comes to names.
OFCCP doesn't have specific naming conventions in its regulations regarding race and ethnicity that federal contractors and subcontractors are required to use. However, OFCCP uses the following terms in its regulations in regard to race and ethnicity and expect employers to collect demographic data according to these categories:
Blacks Hispanics Asians/Pacific Islanders American Indians/Alaskan Natives Whites
Note that unlike EEOC, OFCCP's regulations do NOT have a separate category for Hawaiian Natives/Pacific Islanders and do NOT have a category for persons who are two or more races. OFCCP issued a directive in 2008 that allows federal contractors and subcontractors to collect demographic data and prepare statistical reports using EEOC's race and ethnicity classifications, but OFCCP has never formally changed its regulations to match EEOC's classifications.
From our experience, OFCCP has not had a problem when federal contractors or subcontractors use naming conventions for the categories above that appropriately represent the category. Thus, it should not be a problem to have an HR system that refers to "African Americans" rather than "Blacks" or that refers to "Native Americans" rather than "American Indians/Alaskan Natives."
Where OFCCP might have a problem is if your system creates new or different categories than the five categories used by OFCCP or the seven categories used by EEOC. For example, if your system has a category for Asians from the Indian Subcontinent, a separate category for Asian for the the Eastern part of Asian, and a third category for Hawaiian Natives/Pacific Islanders, OFCCP might have a problem as it recognizes these first two categories as members of one class for reporting purposes. As another example, if your system has a category for Asians from the Middle East who are counted as minorities in various reports, OFCCP might have a problem since Asians from the Middle East are typically counted as white.
Thus, the naming conventions you use are less important than have categories that conform to OFCCP's expectations.
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.