EO Clause Incorporation
We are a financial institution held to Affirmative Action requirements as an FDIC member. I am aware of the EO Clause requirements in contracts, subcontracts and purchase orders, but have also heard that the EO Clause only needs to be included if the contract, subcontract, or purchase order is related to business of the government contract.
Is that statement accurate? Additionally, how does this apply if our only obligation is as an FDIC member and not a specific government contract? Must the EO clause still be included?
OFCCP views participation in the FDIC and entering into an agreement for insurance as a contract as defined by the regulations implementing Executive Order 11246, VEVRAA, and Section 503, all of which require equal employment opportunity by federal contractors.
The regulations define a government contract as “any agreement or agreement modification between any contracting agency and any person for the purchase, sale or use of personal property or non-personal services.” Because “non-personal services” includes insurance and fund depository services, OFCCP considers financial institutions with federal share and deposit insurance as government contractors.
Based on this, it is advisable that you include the EO clause in your contracts, subcontracts, and purchase orders.
For more information, please refer to OFCCP’s FAQs on Jurisdiction
where it addresses questions on financial institutions.
Here's the first question you need to ask: where in the federal regulations does it say that FDIC membership subjects an organization to the federal affirmative action laws? OFCCP has an FAQ that says that FDIC insurance is a contract, but there is no specific language to that effect in the affirmative action regulations. There are a number of people in the professional community who would argue that FDIC insurance is NOT a contract, but is instead something else (federal mandate or whatever) that does not bring an organization within the scope of the affirmative action laws.
Something work checking with your attorney or professional advisor.
Let's assume, however, that your organization is covered by the affirmative action laws. It is accurate that there needs to be an EEO clause in contracts, etc. The regulations regarding protected veterans and individuals with disabilities have very specific language in this regard. It is also accurate that this language is only required when your organization is dealing with a vendor that is supplying something necessary to the completion to your federal contract.
Here's the problem most employers face: how do we structure our contracts and purchase orders to ensure we have the requisite EO language for all vendors associated with our federal contracts and only for these vendors? The answer most employers have come to is that it is easier to have the requisite EO language in all contracts and purchase orders rather than trying to segregate out the vendors who might be associated with federal work.
I think your most important question here is the one about whether your organization is covered by the affirmative action laws. If you decide you are covered, then it's probably easier to include the EO clause in all contracts and purchase orders.
Self Identification Responses
I have a few questions regarding self-identification under 503 and VEVRAA:
1) If an employee has answered 'no' on their disability self-identification form but the employer later finds that the employee can be classified as having a disability (through other medical documentation), can the employer override the self-id and count the employee in utilization analysis? Or must the employee voluntarily submit a new self-id form?
2) If an employee identifies and a disabled veteran but not as an individual with disability, can the disabled veteran response be used to override the disability response? Can the employer ask for clarification from the employee?
3) The VEVRAA FAQ's indicate that an employer may use pre-offer veteran responses of 'yes,' even if the individual answers 'no' during post-offer. Has any further guidance been provided for similar situations that may occur with individuals with disabilities?
4) Instead of altering employee responses, could an employer create additional reports to show adjusted IWD/Veteran response? In addition to the required reports, these reports might show an adjusted or 'unofficial' figure where the employer has now included employees who responded 'no,' but has reason to believe otherwise. Would this type of reporting hold any value in case of an OFCCP audit?
Employers are allowed to identify an employee as disabled if they know for a fact that it is the case. Your company will have to make a decision if they want to use only what is being provided in the self-identification forms or override the form based on their knowledge. I think that most employers are selecting to use only the information provided in the self-identification forms. Keep in mind that the OFCCP cannot penalize you for not having enough IWDs or Veterans because of the voluntary nature of the self-identification process.
I have been told that the terms that define someone as being a disabled veteran may not necessarily make someone disabled under the Rehabilitation Act or ADA; however, I am not totally sure of this. I would say that if you rely on the responses to the self-identification form, you will be safe.
I have not seen any further guidance with respect to differing responses on pre-and-post offer self-identification forms; however, there is nothing stopping you from following up with the employee to confirm their post offer selection.
Your idea for providing OFCCP with two different counts, one based on the responses to the self-identification forms and one based on your knowledge, would be okay to submit during an audit. I'm not sure if the different counts will really make that much of a difference in the long run.
New Hire Notices
Does anyone have a consolidated list (or know where I can find one) of all the various state notices that have to be provided to new hires? I'm struggling to keep up with all the various government agency requirements in each state. Help.
The Department of Labor website for each individual state should provide that state’s notice requirements. Unfortunately, I am not aware of a consolidated list that will show the notice requirements for all states.
A listing of all the state labor offices and their contact information can be viewed here
You can also go to www.careeronestop.org
We don't list physical demands for each job posted and we were thinking of adding a general reasonable accommodation statement on all job descriptions/positions. What is best practice? Where do companies usually list their reasonable accommodations statement?
Federal contractors are required to state in all solicitations and job advertisements that they are an equal employment opportunity employer of individuals with disabilities. They are also required to invite applicants to self-identify as individuals with disabilities using the Voluntary Self-identification of Disability form
, which does include a reasonable accommodation statement on page 2. Although contractors may not alter the content of the OFCCP’s voluntary self-identification form, contractors are encouraged to provide additional reasonable accommodation information with the form, such as the name and contact information of the official(s) responsible for processing requests for reasonable accommodation from applicants with disabilities and information about the contractor’s reasonable accommodation procedures. For additional information, refer to Appendix B
of Section 503, which provides examples of “best practices” for contractors in developing reasonable accommodation procedures.
Security Clearance Requirement
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!
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
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.
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