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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.
We currently have an open position available. It is our policy to post the position internally and externally; however, with this particular position, a current employee has applied for the position and we would like to transfer this person to the open position. Do we need to further post the position and interview more people to satisfy the OFCCP regulation guidelines? How do I need to track this opening?
If you have an employee that you want and expect to move to the open position, there is no federal regulatory requirement to post the job so that other candidates can express interest. You would track this action by showing it as some sort of job change (whether promotion, transfer, reclassification, or something else) in whatever system you use to record information on personnel activity.
A more interesting question is whether you are required to collect and record information on any other internal candidates who have expressed interest in this job. If there are other internal candidates, I'd encourage you to keep track of who these candidates were and why there were not selected. These other internal candidates would probably be considered "applicants" under OFCCP's revised regulations regarding veterans and individuals with disabilities, and should be included in the data metrics associated with your AAPs for veterans and individuals with disabilities. (Conversely, it is not clear that these internal candidates would be considered "applicants" under OFCCP's Internet applicant rule or other regulatory guidance associated with Executive Order 11246.)
Asked by Anonymous - Jan 18, 2017
We recently changed our EEO statement into a standard policy. We don't usually print our policies on letterhead. Is there a legal requirement to print the EEO policy on letterhead? It is reviewed and signed annually by our CEO and distributed out to our various sites. Is that sufficient?
There is no OFCCP requirement to print the EEO policy on letterhead. It would be sufficient to have it reviewed and distributed to your various sites. Note that there is specific information that needs to be incorporated into the policy statement that is found in the revised veteran and disability regulations.
While there is no requirement to print and post the EEO policy on letterhead, it's a good practice to do so. It demonstrates your organization's commitment to the policy, and it helps to establish the credibility of the policy with regulatory agency's like OFCCP.
Job Application "Expiration"
Asked by Lita S. - Jan 16, 2017
Our job application states "This application will remain active for 6 months. Applicants who wish to apply for a position after 6 months should reapply." We only accept job applications for specific job openings. I have two questions.
1. Are we required to keep the applications "active" for a particular period after initial receipt?
2. If a specific position is filled, then an additional, identical position is opened 2 months later, by keeping the first set of applications active for 6 months, do those applicants have to be considered part of the applicant pool for the second position?
You are not required to keep applications active for any particular period beyond receipt. Candidates will (properly) assume they are under consideration for the same or similar positions after submitting an expression of interest during a six month period if you say six months. Six months seems a very long time to have one position or one type of position open. Our recommendation to clients is to limit the period that any application is active.
On your second question: If a candidate applies for a position, and an identical position is opened two months later, and you've told candidates their applications remain active for six months, it certainly appears that the candidates should be considered for the second opening. They may be dispositioned the same (i.e. they may still be found not minimally qualified, or not as well qualified because of experience, or whatever), but they should be considered. This is one of the problems in saying that applications are considered active for six months. You need to live by the rules you set. If you say "active for six months," then candidates (and regulatory agencies) will have the right to assume an application is in fact under active consideration for six months.
I would strongly encourage you to move away from this six month period. We encourage clients to make candidates apply for each open position in which they are interested, and encourage clients to inform candidates that they must apply for individual openings in order to be considered for those openings.
If you have a type of position that you fill routinely (i.e. assembler, welder, janitor, cook, laundry, call center person, etc.) where you have one constantly open requisition, then a six month active period may make sense. However, all candidates who apply definitely continue to be active for the six month period in such a situation. Also, constant (or "evergreen") requisitions are often associated with large back pay settlements.
Self-ID of Disability Form
Asked by Anonymous - Jan 11, 2017
OFCCP's Self ID of Disability Form is set to expire on 1/31/2017. Has there been any news from the agency about a new form being published?
The formal requirement is to list positions in the manner dictated by the ESDS. Thus, if the ESDS office indicates you need a contact e-mail, then you should include a contact e-mail. If the ESDS office provides no instruction in this regard, then you have more discretion.
Declined Offer. Internet Applicant?
Asked by Anonymous - Dec 09, 2016
Criteria #4 of the Internet Applicant rule states that "The individual, at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removed himself or herself from further consideration or otherwise indicated that he/she was no longer interested in the position."
OFCCP then suggests in its FAQs that an employer can consider a withdrawal (passive disinterest to be shown) through several reasons, including "declining a job offer."
This would seem contradictory to the rule, which specifically states "prior to the receiving an offer." But at what point is the offer "received?" Is it only when the candidate accepts or is it simply when the offer is made?
It is unclear whether or not these individuals should be included in applicant pools. What would you consider as best practice in this scenarios?
In this situation it is appropriate to conduct two analyses. One analysis would compare offers to applicants, and would include those offers which were denied. A second analysis would compare hires to applicants, not including those applicants who denied offers. I have seen cases in which several offers were made to minority and/or female applicants and the offers were declined; the ultimate hire was a nonminority male. If there is adverse impact in hires (using a hires-to-applicants analysis), there may not be any adverse impact when all offers are included (using an offers-to-all applicants analysis).
You are right on the money. This is extremely contradictory and should be clarified by OFCCP. An offer is an offer and those candidates should be included in the applicant flow log. Obviously, the response to this FAQ says otherwise. I suggest calling the hotline and getting some guidance. I know that I am going to do the same.
Call OFCCP’s Toll Free Help Line 1–800–397–6251 (TTY 1–877–889–5627)
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