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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.
Must we track candidates sent to us by a 3rd party recruiter who are not qualified?
Asked by Beth C. - Apr 17, 2019
We work with a number of outside recruiters. They will send us resumes of potential candidates for a posted job. If the candidate they send is deemed not qualified (based on some factor like experience, education, lack of license, salary requirements), do we need to include that candidate in our Applicant Tracking System (we currently import any candidate sent from a recruiter into our ATS and then have the candidate formally "apply" if we decide to interview them)? Or, if we are not interested in the candidate from the recruiter, can we just tell the recruiter "no thanks" and not bring that candidate into our ATS?
This question has many layers. You, as the contractor, are responsible for the actions of the outside recruiters. The outside recruiters, standing in for you -- the federal contractor -- are responsible for obtaining demographic (race, gender, disability status and veteran status) for all candidates that they believe meet the minimum qualifications. A best practice is to have the recruiters ask all interested applicants to apply to the ATS, as OFCCP may ultimately have a different determination regarding minimum qualifications.
Pre-Offer EEO Survey
Asked by Anonymous - Apr 09, 2019
Does the pre-offer EEO, Disability, and Veteran Self-ID need to be given every time an applicant applies to a new position?
Or can we ask once when the applicant creates their applicant profile in our ATS, and apply that response to every position they apply for?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 24, 2019
This situation is not contemplated by the regulations. A best practice would likely be to solicit a new self identification, or give the opportunity to update the self-identification form for new applications. At least those that are not close in time to a previous one submitted by an applicant as information could change.
Policy of Affirmative Action Letter for Recruitment & Referral Sources Letter
Asked by Anonymous - Apr 08, 2019
Our AAP vendor is requesting that we send the letter below to ALL recruitment and outreach sources. As we are LJN customers, that number is in the thousands. Is this a requirement of OFCCP or a 'best practice'? Thank you!
Dear Outreach and Placement Professional:
This letter is to inform you that Company Name is committed to the principles of equal employment opportunity. As a government contractor bound by Executive Order 11246; the Vietnam Era Veterans Readjustment Assistance Act of 1974; and Section 503 of the Rehabilitation Act of 1973, all as amended, Company Name maintains an affirmative action plan through which it makes good faith efforts to recruit, hire, and advance in employment qualified individuals without regard to sex, gender identity, sexual orientation, race, color, religious creed, national origin, physical or mental disability, protected Veteran status, or any other characteristic protected by applicable law.
Company Name states as its Policy of Affirmative Action the following:
1. It will be the policy of Company Name to recruit, hire, train, and promote persons in all job titles without regard to sex, gender identity, sexual orientation, race, color, religious creed, national origin, physical or mental disability, protected Veteran status, or any other characteristic protected by applicable law.
2. All employment decisions shall be consistent with the principle of equal employment opportunity, and only job related qualifications will be required.
3. All terms and conditions of employment will be administered without regard to an individual’s sex, gender identity, sexual orientation, race, color, religious creed, national origin, physical or mental disability, protected Veteran status, or any other characteristic protected by applicable law.
We would appreciate your assistance in Company Name’s efforts to meet our equal employment and affirmative action goals. [For Recruitment and Referral Sources: Members of our Human Resources Department will contact you when positions are available. We request that you refer to us all qualified candidates, including women, individuals of color, protected Veterans, and individuals with disabilities.]
Sending a letter to recruitment sources is a best practice. There is no explicit requirement in the federal affirmative action regulations to do so. However, OFCCP will often ask during compliance reviews whether recruitment sources have been asked to include minorities, females, veterans, and individuals with disabilities among their referrals. A letter of the kind you've posted above would help to demonstrate that you are meeting this objective.
As an LJN customer, it's true that you have many recruitment sources that are used. If you're concerned about the burden of sending a letter to recruitment sources, then it may be best to send a letter to (a) the recruitment sources that your organization individually contacts about referring candidates and (b) the recruitment sources that produce the most candidates for your open positions.
There IS a requirement that organizations covered by the affirmative action provisions in the regulations for protected veterans and/or individuals with disabilities to 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." While OFCCP has never defined the particular contents of this notification, it is clear that agency expects some kind of written notification has been sent to "subcontractors." Whether a recruitment source should be considered a subcontractor is an open question. Regardless, there needs to be an effort made to send this notification to vendors that are associated with an organization's federal contracts.
Notice to view AAP
Asked by Anonymous - Apr 01, 2019
As a federal contractor, do we have to display a notice for our employees informing them that they can view the Vets and IWD AAP?
The regulations regarding protected veterans and individuals with disabilities have a provision that reads as follows:
"Availability of affirmative action program.
The full affirmative action program, absent the data metrics...shall be made available to any employee or applicant for employment for inspection upon request. The location and hours during which the program may be obtained shall be posted at each establishment."
Asked by Anonymous - Mar 29, 2019
1. How do you generally recommend we set up job groupings for a multi-site organization from an EEO-1 perspective? 2. When we have sites that are less than 50 people I don’t believe we are required to report those statistics. Is that your understanding? Do we need to report that information anywhere?
First things first: if by "How do you generally recommend we set up job groupings" you mean "How do we establish job groups for our federal affirmative action plans?", job groupings should be specific to each individual AAP. OFCCP does not conduct compliance reviews by organization; it conducts compliance reviews by "establishment." The Executive Order 11246 affirmative action plan that is prepared for any given establishment should be specific to that establishment. The narrative should reflect what is occuring at that establishment, and statistical structures devised for the AAP should be specific to that establishment. Since job groups are such a foundational tool for developing other statistical reports that are included in AAPs, it is especially important to have job groups that are specific to each establishment.
Many organizations want to use EEO-1 categories as their job groups. This is often a very bad idea. It can combine jobs that are very much dissimilar with each other. For example, a company that has lots of engineers and lots of purchasing agents at one facility should probably consider separate job groups for engineers and purchasing agents, regardless of the fact they are both part of EEO-1 category 2. The pay for these jobs is likely different, the duties are very different, and the opportunities for advancement are likely to be different. Similarly, a company that has lots of assembler and lots of welders at one facility should consider separate job groups for these two types of positions, regardless of the fact they may both be part of EEO-1 category 7. The demographics regarding individuals who might enter assembler and welder jobs are so different, and the characteristics of these jobs are typically so different, that they do not belong in one job group.
If you HR information system REQUIRES you to assign both an EEO-1 category AND an affirmative action job group to each job title or job code that will then be used across facilities, you should do so with great care. From a strategic standpoint, it is better to have lots of job groups with a smaller number of incumbents than the reverse. OFCCP is much more likely to find statistical disparities and compensation issues for a job group that is extremely large than for a smaller job group with a set of positions that are similar in nature.
As for sites with less than 50 people, you are required to find a way to report these individuals on your EEO-1 reports. There are two different ways to report worksites with less than 50 people that you can read about in the instructions for filing the EEO-1 report.
You are also required to include employees at sites with less than 50 employee in an affirmative action plan if they are part of an entity covered by OFCCP's regulations. Under OFCCP's regulations, you have a number of choices as to how to include persons at smaller facilities in some affirmative action plan. (See 41 CFR 60-2.1) However, OFCCP's regulations are clear that if an organization is covered by these regulations, EVERY employee must be included in some affirmative action plan.
It would be great if I could say "Just put jobs into EEO-1 categories, use those for your job groups, and ignore small facilities." Unfortunately, for both EEOC and for OFCCP purposes, that advice would ensure that you are out of compliance with each agency's mandates.
What is covered in a compliance check?
Asked by Anonymous - Mar 27, 2019
I'm having difficulty finding out exactly what will be asked for in an OFCCP compliance check. I know that they will request our latest AAP, but is there anything else we should expect? Any guidance is appreciated. Thanks!
Actually, OFCCP will NOT ask for your most recent AAP during a compliance check. According to the compliance check letter that OFCCP has on file with the Office of Management and Budget, the agency will ask to see the following items:
"1. AAP results for the preceding year (41 CFR §§ 60-1.12(b); 60-300.44(f)(4)and 300.80; 60-741.44(f)(4)and 741-80).
2. Examples of job advertisements, including listings with state employment services (41 CFR § 60-1.12(a), § 60-300.80, and § 60-741.80).
3. Examples of accommodations made for persons with disabilities (41 CFR § 60-1.12(a), § 60-300.80and § 60-741.80)."
OFCCP has not done compliance checks for many years, and thus the process is also somewhat new to many at the agency. The current compliance check letter is different than the previous letter in that it asks for "AAP results for the preceding year" for all the laws enforced by the agency. In the past when OFCCP was doing compliance checks, the agency would have asked for a copy of an organization's goals progress report that is associated with its Executive Order 11246 affirmative action plan. A review of "AAP results for the preceding year" is likely to include a copy of the goals progress report, but it is also likely to include the assessment of outreach from the AAPs for individuals with disabilities and protected veterans.
The compliance check is supposed to be an expedited form of compliance review. If you can provide satisfactory versions of the items above to OFCCP, that should end the review.
You can see a copy of the compliance check letter at the following site: https://www.reginfo.gov/public/do/PRAViewIC?ref_nbr=201602-1250-001&icID=13735
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.