OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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  • Security Clearance Requirement
    Asked by Anonymous - Sep 06, 2016
    Good morning,
    Can we require a candidate to answer whether or not they have an active security clearance if the position requires one? It's my understanding that we can because in order to be considered an Internet Applicant under the OFCCP rules, the applicant needs to indicate that they possess the basic qualifications. If the job requires a security clearance, this would be considered a basic qualification, correct? Thank you in advance!
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Sep 06, 2016
    If the position requires an active security clearance you can definitely ask candidates if they have one and determine them not to be qualified if they do not.

    Debra Milstein Gardner
    Workplace Dynamics LLC
    www.workplace-dynamics.com

     
  • Penalties
    Asked by Paige H. - Sep 06, 2016
    Do you know where I can find information on penalties, if any, for not following the rules stated below:

    When searching for candidates on an external resume database, you will need to maintain the following records:

    • 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
    • The resumes of job seekers who met the basic qualifications for the particular position who you considered for the position.

    I've looked on the OFCCP website, but not able to find any documentation. Thank you.
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Sep 06, 2016
    Hi Paige,

    There are no specific penalties for not maintaining that information; however, if it becomes obvious during a compliance review that it has not been maintained then it may lead to a conciliation agreement (CA). If this occurs, you may have to provide the OFCCP with proof that this information has been maintained during a one-to-two period (as identified in the CA). You may also need to submit information on applicants identified from these searches and whether or not they were hired. OFCCP may conduct a disparity analysis on this data and if there is adverse impact, you may have to defend your hiring decisions.

    Debra Milstein Gardner
    Workplace Dynamics LLC
    www.workplace-dynamics.com

     
  • Reliable Transportation
    Asked by Anonymous - Sep 01, 2016
    Is a company allowed to put on a job description if a candidate has access to reliable transportation and the ability to lawfully drive self, if applicable?
    Answered by Carey Freitag from Local JobNetwork™ - Sep 02, 2016
    Job Descriptions should include essential functions of the position and if reliable transportation or a valid driver’s license are essential functions then those qualifications could be listed. If a company, however, incorrectly identifies driving as an essential function for a particular position and excludes an individual whose disability makes driving impossible, they may violate the Americans with Disabilities Act (ADA).

    For example, a home health aide that visits patients’ homes would require reliable transportation to visit the home, and therefore that would be considered an essential function. That same position, however, would not necessarily need a valid driver’s license since the reliable transportation could be public transportation.

     
  • Do you need to create new reqs for job location moves?
    Asked by Mairead O. - Aug 26, 2016
    If an open req. was moved between cities (less then 2 hour drive) same job requirements but a different location, from a compliance standpoint could you just update the same req. once you reach out to all candidates that meet basic requirements and allow them to self withdraw based on location changes?
    Answered by Amy Wozniak from Local JobNetwork™ - Aug 29, 2016
    If you have an open requisition and the position has moved to a location that is less than two hours away from the original one, it is advisable that you update the requisition and your ESDS job listing when a decision is made to move the job. This is to avoid creating any gaps in outreach. Updating the location will give you the opportunity to conduct outreach in the region where the job will actually be located, as Local Veterans’ Employment Representatives and Disabled Veterans’ Outreach Program specialists may have viable candidates for your position based on the new city.

     
  • EEO and VET category definitions
    Asked by Anonymous - Aug 23, 2016
    Does the OFCCP require us to provide the definitions of the EEO and Protected VET categories when requesting this voluntary information from applicants and employees? If so, where on the OFCCP website is this confirmation found?
    Answered by Roselle Rogers from Local JobNetwork™ - Aug 25, 2016
    The regulations do not require contractors to provide definitions of the EEO-1 categories or protected veteran categories when soliciting voluntary information from applicants and employees. Appendix B of the new Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) regulations provides sample language for the voluntary self-identification that does include the definitions, but this is suggested language and not required language. What it does require is that the invitation should: 1) state that the contractor is a federal contractor required to take affirmative action to employ and advance in employment protected veterans pursuant to the Act; 2) summarize the relevant portions of the Act and the contractor's affirmative action program; and 3) state that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will not be used in a manner inconsistent with the Act.

    That being said, as a best practice, you might still want to include the definitions, especially for the protected veteran categories, as applicants and employees may not necessarily be familiar with who falls under these categories.

     
  • Contract-to-Hire and the OFCCP
    Asked by Lita S. - Aug 23, 2016
    Our IT department frequently creates a contract-to-hire position when they are uncertain of the ultimate workload a project will create. Sometimes they will initially contract for 2-3 individuals and may eventually hire all, some, or none.

    Do we have to list these positions with the ESDS (it is possible - even likely - that at least one contracted individual will be hired as an employee.)? If yes, do we need to include a time frame (even though we may not know)?

    If we do hire someone permanently, what is considered the hiring "pool"?
    Answered by Roselle Rogers from Local JobNetwork™ - Aug 26, 2016
    “Temp-to-perm” and “contract-to-hire” situations present a lot of challenges when it comes to regulatory compliance. The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) requires federal contractors to list all employment openings with the state ESDS with the exception of: 1) executive and senior management positions, 2) those positions that will be filled from within your organization, and 3) positions lasting three days or less. So unless the position falls under these exemptions, you are required to list it. The question is, at what point do you list it? When you are recruiting for the contract-to-hire position, or when you decide to convert it to a full-time position?

    Theoretically, it is the point at which the position becomes a “payroll position” or is paid within your payroll system, that triggers your obligation to list the position with the state ESDS. Technically speaking, your applicant pool would be based on that. However, having a 3-person applicant pool could be problematic and OFCCP may want to look at what they call the source pool - the candidates for the 3 contract-to-hire jobs that ultimately led to the hire - and may consider the source pool as the true applicant pool. So you will need to plan for that. If you are using a temporary or staffing agency to recruit for the contract-to-hire positions, you need to make sure that they are listing those positions with the ESDS.

    As far as timeframe for conversion, there is no specified requirement for this. However, when evaluating a situation such as this, OFCCP may consider the length of time the 3 people were in a contract-to-hire status, if the employment relationship was truly that of a contractor as opposed to an employee, as well as your history of listing positions with the ESDS.

    Similar questions on contract-to-hire and temporary workers have been answered in this forum by Bill Osterndorf and Debra Milstein Gardner before. I would encourage you to check out their responses as well. You can do a quick search for these related questions by entering “temporary” in the keywords field at the top of this page.

     
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