OFCCP Ask the Experts
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  • Non-discriminatory screening of candidates.
    Asked by Anonymous - Aug 02, 2016
    I am hoping that you can help me out and review the below information for legal and non-discriminatory screening of candidates. Our team has proposed the following language below to be included in a posting of approximately 10 positions for a contract that we were awarded last week. I'm not sure it meets nondiscriminatory requirements.

    Also, we have a requirement to provide a credit check and a specific score must be achieved or the candidate will not be hired. We must do this within 5 hours of receiving a go forward from a resume review. This severely limits our ability to have a signed offer in hand with a contingency for passing the requirements listed below.


    Other Requirements:
    While this position does not require a security clearance, applicants must be eligible to work in the United States. In addition, Applicants must also:
    • Pass a background investigation, which may include a credit check including overall credit score
    • Be alcohol and drug free
    • Be literate, well-groomed and courteous
    • Have the ability to lift and handle at least 50 pounds

    Can you shed some light on this at all?

    Thank you for your insight and assistance.

    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Aug 02, 2016
    The job requirements must be related to the position being posted. There are few positions in which a credit check would be necessary, so such criteria should be evaluated on a case-by-case basis. Physical requirements should also be reviewed for business necessity for specific positions, as the ability to lift 50 pounds will tend to screen out women.

  • Which BQ equivalency should prominently display in the job post?
    Asked by Carrie H. - Jul 19, 2016
    What is the correct way to display the basic qualifications (BQ) of the job in the listing/posting when there are education/experience equivalencies for the position? (Ex. Bachelor’s and 2 years of experience or High School Diploma and 8 years of experience.)

    The requisition creation platforms (both Peoplefluent and LJN) have a drop-down menu for "Required Education" and a separate drop-down for "Required Experience." These drop-downs do not account for an equivalency and each specifically say "Required." The use of the word “Required” could mean the minimum education and the minimum experience, which technically could each be from a different equivalency (ex. High School and 2 years - rather than High School and 8 years). I know we need to pick a full equivalency and use the whole requirement, but which one?

    Considering these are "equivalencies" I do not think that one set of education/experience is better than the other, however the degree might be the preference of the manager. If we display the Bachelor’s degree, we could inadvertently push qualified High School with experience candidates away because they think they need a degree. If we list High School as the education (because it is the minimum) then we may miss out on qualified college educated applicants who do not want to review and apply to a position that seemingly only requires a high school education.

    I researched 14 other Federal Contractor job postings on the NC Works state job board. Only eight used equivalencies. Seven of those indicated the degree as the “required” education which displayed at the top of the post, with the full equivalency detail being spelled out further down in the post. Only one Contractor listed High School as the required education, when there was a college degree equivalency. The other six Contractors don’t appear to use equivalencies. (Which makes me wonder what they do when someone awesome applies with great experience that doesn't have the degree.)

    From the standpoints of 1) equal opportunity / barrier prevention and 2) OFCCP compliance – what do you advise Contractors to do if they are forced to pick a BQ for display? Thanks in advance!
    Answered by Amy Wozniak from Local JobNetwork™ - Jul 21, 2016
    While federal contractors need to review their job descriptions to make sure their basic qualifications are not discriminatory, from an OFCCP compliance perspective, there is no obligation to choose one basic qualification over another. These are entirely at the discretion of the contractor. However, if your objective is to cast as wide of a net as possible, it would be advisable to select the minimum experience and education that would be acceptable for your position. If you don’t require a college degree, a best practice would be to select “high school” for the education requirement and “2 years” for the experience requirement and include additional detail regarding your equivalency (ex. Requires a bachelor’s degree and 2 years of experience or a high school diploma and 8 years of experience) within the body of the posting. By doing so, you are not prohibiting any potential candidates from applying to your position.

  • Internet Applicants & Emailed Resumes
    Asked by Anonymous - Jul 13, 2016
    Our standard practice is to consider job seekers for a position only if they submit an online application through our website.

    We recently posted openings with an outside job board. The job board allows candidates to store their resumes and utilize a one-click apply which automatically emails the resume to us. We would like to review these resumes and, if a candidate meets the basic qualifications for the job, invite them to apply online through our website. The person would continue through the selection process only after they have applied.

    Do the internet applicant and recordkeeping rules allow for this? Additionally, are we required to retain the resume if the individual does not follow through with an online application?
    Answered by Amy Wozniak from Local JobNetwork™ - Jul 15, 2016
    The record keeping obligation for federal contractors is stated under OFCCP’s Internet Applicant Rule here. 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.

    According to the OFCCP, an “Internet Applicant” is an individual who satisfies all four of the following criteria: the individual submitted an expression of interest in employment through the Internet or related electronic data technologies; the contractor considered the individual for employment in a particular position; the individual's expression of interest indicated that the individual possesses the basic qualifications for the position; and 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.

    Contractors are not required to maintain the resumes of individuals if the contractor did not consider them. If the candidate does not meet the basic qualifications for the position, then you would not be required to maintain these records under the Internet Applicant Rule.

    OFCCP also allows contractors to establish a protocol where it would refrain from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes. Therefore, requiring applicants to submit an online application in order to be considered is acceptable. It is important that this protocol is documented in your hiring process and that you apply it in a uniform and consistent manner.

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

  • 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.


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.