OFCCP Ask the Experts
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  • Difference between Federally Funded and Federally Assisted
    Asked by Robin P. - Jun 30, 2016
    Can you explain the difference between Federally Funded project vs. Federally Assisted? It's my understanding that Federally Funded is a contract or subcontract with the government and federally assisted is a project that has a grant, loan, etc from the Federal government.

    Example: The project is Medical University of South Carolina Children’s Hospital & Women’s Pavilion. The hospital facility will be financed utilizing the HUD Federal Housing Administration Section 242 Mortgage Insurance Program. Does that make it Federally Funded or Federally assisted? The contract also has the following provision, is this just cookie cutter language?

    Contractor is a federal contractor. Subcontractor therefore acknowledges and affirms it will be responsible for compliance with the provisions required of a federal contractor/subcontractor. Such provisions may include but not limited to: EO 11246, Section 503, VEVRAA, EO 13496.

    While I understand that we must abide with EO11246 because of the loan.....since it is not a Federal contract (what I believe to be Federal Contract) we would not need to abide by Section 503 and VEVRAA.

    Please advise asap. Thanks!

    Answered by Bill Osterndorf from HR Analytical Services - Jun 30, 2016
    To start with, the federal affirmative action regulations found in Volume 41, Chapter 60 of the Code of Federal Regulations apply to federal contractors and subcontractors. These regulations do not apply to organizations receiving grants. Thus, a federally assisted project covered by the federal affirmative action regulations MUST involve a federal contract.

    In regard to loans, whether a federal loan would be considered a contract would depend on the nature of the loan and the relationship between the parties involved in the loan. If the loan is characterized in documents between the parties as a contract, then the loan is probably a contract.

    The distinction between federally funded and federally assisted projects primarily affects construction contractors and subcontractors. A project where a construction company has a contract or subcontract to do work on the Washington Monument is a federally funded (i.e. direct) project. A project where a construction company has a contract or subcontract involving work on a highway project in the State of Missouri, where the project is primarily controlled by the State of Missouri but the project has received federal funding, is a federally assisted project. Companies that are working on projects that are federal assisted projects are not subject to the provisions of the regulations regarding protected veterans and individuals with disabilities. (See 41 CFR 60-300.2(n) and 41 CFR 60-741.2(k).)

    In your example, it's not clear what the status of that project is. If your company has a contract with the Medical University, it is a state contractor. The HUD money may be a grant, which would likely make the federal affirmative regulations inapplicable to you and others working on this project, since the affirmative action regulations only apply to contracts. If the HUD money is a contract with the state, this project may be a federally assisted project that IS covered by the federal affirmative action regulations under Executive Order 11246.

    The provision you cite isn't entirely helpful in this regard. The language "Contractor is a federal contractor" doesn't mean that there is a federal contract involved in this particular project. The language you mention that indicates subcontractors must abide by EO 11246 simply means that WHEN APPLICABLE subcontractors must abide by EO 11246.

    Someone needs to read your contract with the Medical University very carefully here. There needs to be a determination as to whether (a) the HUD money is a grant or contract, and (b) subcontractors are actually receiving any kind of funds through a federal contract.

    Please note that Executive Order 11246 has requirements for direct federal contractors and for federal subcontractors, whether involved in construction projects or other types of projects (i.e. supply and service projects). The Executive Order also has requirements for CONSTRUCTION contractors and subcontractors involved in federally-assisted projects. (See 41 CFR 60-1.3.) Thus, a traditional supply and service contractor involved in a federally-assisted project appears to have no affirmative action obligations under any of the affirmative action laws.

    I realize this is somewhat convoluted, but, frankly, issues involving subcontracts and grants and state money mixed with federal money are often convoluted. You may need to have a discussion with an attorney who is well-versed in contract and affirmative action law to determine what your obligations are.

  • Best Practices for Search and Interview Documentation
    Asked by Anonymous - Jun 28, 2016
    I'm interested in learning more about best practices for documents related to searches and interviewing? Can you provide a resource/guidelines where I can get information about this?
    Answered by Roselle Rogers from Local JobNetwork™ - Jun 29, 2016
    The obligation requiring federal contractors to record resume database searches is stated under OFCCP’s Internet Applicant Recordkeeping Rule. In 41 C.F.R. § 60-1.3 OFCCP defines who is an Internet Applicant and in 41 C.F.R. 60-1.12 it sets forth the record retention requirements for federal contractors.

    Federal contractors must save records when they search a resume database, whether it is an internal or external database. For internal resume database searches, you will need to keep a record of the following:

    • A record of each resume added to the database
    • A record of the date each resume was added to the database
    • 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

    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. You are not required to maintain the resumes of individuals if you did not consider them for the position. You are also not required to maintain a record of searches that do not produce candidates that meet the basic qualifications.
    • While the OFCCP does not specifically require this, it would be beneficial for you to document any data management techniques you used. For example, your company may have a policy of only reviewing the first 50 resumes.

    If your company has fewer than 150 employees or does not have a federal contract of at least $150,000, you should retain these records for one year. If you have at least 150 employees and a contract of $150,000 or more, you are required to maintain the records for a period of two years.

    However, any records pertaining to outreach to veterans and individuals with disabilities will need to be kept for a period of three years.

    As far as interviewing and selection, contractors are required to keep a record of any tests, test results, and interview notes. While there is no OFCCP requirement for contractors to use disposition codes, it is in the contractor’s best interest to use strategic disposition codes that record all of the following:

    • The stage in the selection process when the candidate was removed from consideration for the position
    • The reason for removing the candidate from consideration
    • The person who made the decision to remove the candidate from consideration

    If you are using a staffing agency and these positions will end up on your payroll, you need to make sure that the staffing agency is recording and retaining this data on your behalf; because ultimately, it is your responsibility as the contractor to provide proof of compliance. OFCCP has made it clear that the use of a staffing agency does not excuse a contractor of its obligations and that the contractor will be held accountable if records are not being kept.

    For more guidance on this topic, see OFCCP’s Frequently Asked Questions on the Internet Applicant Recordkeeping Rule

  • Ad out with no open position
    Asked by Rose U. - Jun 17, 2016
    I have several ads posted but there are no open positions. Should the wording in the ad be changed to say accepting applications instead of stating we have an opening? We are not a government contracted employer.
    Answered by Carey Freitag from Local JobNetwork™ - Jun 17, 2016
    If your company does not currently have open positions, it would be best to phrase the ad differently so applicants do not feel they are being misled. Stating that you are “accepting applications” is an alternative, although some applicants may still be disappointed to learn that they were applying for a position that was not open.
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Jun 20, 2016
    If you have positions that are difficult to fill and you want to create a pool of qualified candidates for when the position opens, it is perfectly fine to post/search for the position.

    You may want to read my article titled "You've Found the Perfect Candidate But You Don't Have An Opening - What Should You Do?" It was written for government contractors but it may be helpful to read.


  • Pre-screening questions
    Asked by Anonymous - Jun 16, 2016

    Is it permissible to ask during phone screening if a candidate is a military veteran and allowing them to answer (yes, no or do not wish to disclose)? Our purpose would be to assist in our veteran outreach. Thanks-
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Jun 16, 2016
    I don't believe the regulations or guidance from OFCCP directly address this question, but I don't recommend this method. First, this won't provide you with the information you need to collect as a federal contractor. There are distinct categories of Veterans that are considered "protected," and a general question would not elicit a useful response. Second, the demographic questions should be asked in a manner that provides confidentiality in the responses, and a verbal question detracts from the confidential process. Third, the candidate might not understand that the question is separate from the evaluation of their credentials. Finally, candidates might not feel as free to respond that they do not wish to disclose if they are asked verbally.

    Demographic information should be requested at the time the candidate expresses interest in an open position on-line. To evaluate the effectiveness of a federal contractor's outreach, ask candidates to disclose how they learned about the position.

  • 2016 Sex Discrimination Guidlines
    Asked by Terry S. - Jun 14, 2016
    I was reading that the OFCCP has issued its final ruling on Sex Discrimination which will become effective in August of 2016. We currently have 3 separate AAP's for Veterans, combined Women and Minorities and for Individuals with Disabilities. How should the new regulation be accounted for in our AAP, is it necessary to create a new, separate, plan to deal with the all the requirements of the new guidelines.
    Answered by Amy Wozniak from Local JobNetwork™ - Jun 16, 2016
    The OFCCP addresses issues of sex discrimination, including discrimination based on gender identity and sexual orientation, within AAPs that are developed for women and minorities. Therefore, it is not necessary to create a new or separate plan to address the requirements of the final ruling regarding sex discrimination. The OFCCP will apply the details of the final ruling to your current plan.

  • Background checks - is it legal to ask for before offer letter is sent?
    Asked by Donna R. - Jun 10, 2016
    We just started a new process to streamline efforts - once the program manager (hiring manager) selects a candidate,

    1- he sends "request for offer" letter to HR
    2- I (the recruiter) send this email to the candidate:

    Dear ____, my name is Donna R. and I am the Recruiting Manager at Skyline. Mr. _______advised us (HR DEPT) of the position he has offered you at Schofield Barracks. Welcome!!! In order to start your new hire in-processing, we need to conduct a preliminary background check. Attached is the Pre-employment release form allowing us to submit your information to a national background information agency. This form must be signed, and then faxed to 571-577-9472. Once we have your application and back ground information, our HR Specialist, ___________, will send your offer letter and instructions for completing new hire paperwork.

    3. offer letter sent when background cleared

    Answered by Amy Wozniak from Local JobNetwork™ - Jun 15, 2016
    Employers must comply with both Federal and State laws that protect applicants from discrimination. Whether or not you can initiate a background check prior to a job offer, will depend on the state you are located in and the types of questions that are asked in the background check. For example, an employer in Hawaii may inquire about convictions only after making a conditional offer of employment.

    Additionally, when an employer receives a background check report from a company in the business of compiling background information, they must also comply with the Fair Credit Reporting Act (FCRA).

    For more information, the EEOC has a publication on “Background Checks What Employers Need to Know”: To read the publication, click here.

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.