OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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  • Race/Ethnicity Question
    Asked by Anonymous - Mar 10, 2016
    We are in the process of implementing a new applicant tracking system and I was asked if we would like to ask the race/ethnicity question in 2 parts. For example, question 1 asks for Ethnicity (Hispanic/Latino, Not Hispanic/Latino, Choose Not to Identify) and then question 2 asks for Race (all race categories).

    I would prefer to keep it as one question for Race/Ethnicity and then include all ethnicities and race categories. Is this ok or should it be broken out into 2 questions?
    Answered by Bill Osterndorf from HR Analytical Services - Mar 10, 2016
    It is not unusual for companies to have all ethnicities and race in one question on survey forms used for applicants and employees. The approach that suggests companies should survey for Hispanic origin first and then ask about race is an outgrowth of revisions that were made to the federal EEO-1 report several years ago. Technically speaking, "Hispanic" is considered an ethnicity by EEOC while classifications such as "African American" or "American Indian" are considered races.

    It's interesting to note that OFCCP's formal regulations have never been changed to mirror EEOC's approach to race and ethnicity. OFCCP's regulations continue to suggest there are five race categories, while EEOC's EEO-1 report suggests that Hispanic is a race and that there are then six race categories to choose from for non-Hispanics. One of the reasons this is important is that EEOC does NOT have a formal requirement to collect race, ethnicity and/or gender data from applicants. Only OFCCP has such a requirement. Both EEOC and OFCCP require the collection of race and gender information from EMPLOYEES, but applicant surveys are actually instruments of OFCCP and not EEOC.

    The bottom line is that it there are other employers collecting race and ethnicity data by including race and ethnicity in one question, and this seems to be acceptable to EEOC and OFCCP.

     
  • Employee Self-Identification for Vets and IWD
    Asked by Anonymous - Mar 08, 2016
    My company completed the initial employee self-identification event about a year and a half ago for Vets and Individuals with Disabilities. We also ask for these self-identification forms be filled out with new hire paperwork. We plan on re-surveying the entire employee population within the required timeframes, but probably not until next year. My question is this - one of the HR Managers in one of our plant facilities would like to conduct an event to ask for employee self-id's again within the next few months. Again, we are not planning a company-wide event for another year. Is it ok for one of our locations to conduct this survey separately, or should we be consistent and have all locations conduct the re-survey at the same time?
    Answered by Amy Wozniak from Local JobNetwork™ - Mar 10, 2016
    The employee self-identification regulations require that contractors invite applicants to self-identify at both the pre-offer and post-offer phases of the application process and also requires that contractors invite their employees to self-identify every five years. From a record-keeping standpoint, it may not make sense to have one location conducting a survey separately, but that would be an individual business decision. If there is a business need to do so, there is nothing that prohibits contractors from conducting a survey more frequently than every five years. For more information you can review highlights of OFCCP’s Section 503 of the Rehabilitation Act here.

     
  • Duration of External Postings
    Asked by Kelly L. - Mar 03, 2016
    As a government contractor, is there a minimum length of time in which a job must be posted externally to meet a minimum requirement? As an example, what if we find the "perfect" candidate the 1st or 2nd day a job was posted: Can we remove the posting or so we need to keep it open for a specified length of time?
    Answered by Amy Wozniak from Local JobNetwork™ - Mar 04, 2016
    There is no minimum or maximum requirement for the length of time in which a job must be posted to meet the VEVRAA requirements. Positions should be posted as soon as you start your hiring process and should remain posted until you have made an offer to a candidate. The specific wording from VEVRAA’s Equal Opportunity Clause states: “Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a bona fide job order, including the acceptance of referrals of veterans and nonveterans.”

     
  • Is it ok to use GPA as a qualifier?
    Asked by Anonymous - Mar 03, 2016
    Good afternoon,

    Is it ok to use GPA as a qualifier? I am working on multiple accounting searches in which the hiring manager insists on knowing the GPA. Assuming other skill set needs are met, the higher the GPA, the more they like the candidate.

    Thank you.

    Julie
    Answered by Roselle Rogers from Local JobNetwork™ - Mar 08, 2016
    Generally speaking, it is acceptable to use GPA as a legitimate qualification. It can be used as a minimum qualifier for a position or to distinguish a more suitable candidate from a group of similarly qualified candidates. However, the two key things for employers to remember here, as with any hiring or employment practice, are: 1) applying it consistently; and 2) being able to prove that it is job-related. As an employer, you need to make sure that the qualifications you are using do not unduly result in an adverse impact on any particular group of applicants. One argument that has been put forward before is that using GPA in employee selection may be potentially causing an adverse impact on applicants with disabilities, minority applicants, and applicants over age 40. Employers are free to use testing and selection tools and methods; but they need to evaluate these to make sure that none of these practices cause adverse impact in hiring, whether intentionally or not.

     
  • Process of Converting Temporary Workers to Employees and Requirements of Sub Contractors
    Asked by Anonymous - Feb 29, 2016
    I'm looking for some clarification as to what the OFCCP considers a compliant process in hiring contingent workers on to be employees. In the past (and I'm sure that we are not the only ones that have done this), when we have an entry level opening that a contingent worker has been successfully filling, we hire that person. Are we required to externally post this type of role and conduct a search? What are our requirements if we only externally post the role for a few days - are we required to post it to the state job bank as well? Please help us to understand a compliant hiring process for temporary workers to become employees.

    Additionally, we are looking to understand what exactly our temporary worker suppliers should be executing when they are hiring temporary workers as employees to be placed with us. In other words, it would be so great to have an easy-to-understand checklist for all of the things the sub-contractors should be doing to ensure that they have a compliant hiring process.

    Thank you for your help!
    Answered by Roselle Rogers from Local JobNetwork™ - Mar 02, 2016
    First, I am assuming that the contingent worker is not currently on your payroll and is on the staffing agency’s payroll. In hiring the contingent worker, you are essentially converting a non-payroll employee into a payroll employee. Technically speaking, your mandatory listing obligation under VEVRAA is triggered when you have an employment opening that is on your payroll.

    In this situation, are you required to post this position to the state job bank? The mandatory job listing requirement set forth in the VEVRAA statute requires covered federal contractors to list “all employment openings” with the exception of 1) executive and senior management positions; 2) positions filled internally; and 3) positions lasting three days or less. If your position does not fall under any of the three exemptions above, then OFCCP will expect you to list this position with the appropriate Employment Service Delivery System or ESDS (also referred to as state job bank) where the job is located. It is advisable to post this position to ensure compliance, and include it in your statistical reports for applicants and hires, even if you fill the position within a few days and end up with a ratio of 1 candidate to 1 hire.

    Because it is providing temporary employees to work on your federal contract and these employees are on their payroll, your temporary staffing agency may be considered by OFCCP as a subcontractor and subject to the mandatory job listing requirements. In recruiting employees to fill these temporary positions for your federal contract, the staffing agency bears the responsibility for posting these positions with the appropriate ESDS and conducting outreach, and providing the appropriate documentation. To cover your bases, you should ask your temporary staffing agency for proof of posting and outreach to women, minorities, veterans, and individuals with disabilities, to ensure that they are doing what is required on their end. When you reach the point where you decide to convert someone into an employee on your payroll, then you have the obligation of posting the employment opening with the ESDS even if you already have a person in mind. Because you may end up having only one candidate, it becomes even more important for your sake that your temporary staffing agency is able to show proof that they performed outreach and posted the positions with the ESDS. There have been cases in the past where OFCCP has asked the federal contractor to provide proof that the staffing agency who supplies them with temporary employees complied with these obligations.

    You are also encouraged to examine your relationship with your temporary agency employees to make sure that a joint employment situation does not exist. On January 20, 2016, the DOL’s Wage and Hour Division issued its interpretation of joint employment under the Fair Labor Standards Act. Depending on factors such as who directs, controls, or supervises the work, and who has the power to hire or terminate the employee, determine work conditions and rate/method of pay, you and the staffing agency may both be considered employers of the temporary employee, and OFCCP may hold you responsible for compliance, regardless of whether the temporary employee is on your payroll or not.

    Be aware that federal contractors and subcontractors have other obligations with respect to hiring, in addition to posting positions with the ESDS and conducting outreach. These include, among others:

    • collecting demographic data;
    • recording candidate database searches;
    • record-keeping;
    • including the EEO tagline in job advertisements;
    • posting a notice informing applicants of their EEO rights; and
    • assessing the outcome of outreach and recruitment efforts.

    Similar questions on 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.

     
  • Online Job Description
    Asked by Anonymous - Feb 25, 2016
    When posting jobs I want to assure I am abiding by the OFCCP's regulations. Is there a specific format that should be followed? What am I required to share with on a Job Posting and what is optional?

    Please share any tips.
    Answered by Amy Wozniak from Local JobNetwork™ - Feb 26, 2016
    The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) requires covered federal government contractors and subcontractors to take affirmative action to employ and advance in employment specified categories of protected veterans. These regulations also contain mandatory job listing requirements that federal contractors must abide by. VEVRAA states that in order to satisfy the listing requirement described herein, contractors must provide information about the job vacancy in any manner and format permitted by the appropriate employment service delivery system. Because each state has its own employment service delivery system, it is advisable to contact the employment service delivery system in the state where you wish to post your positions to ensure you have met all of their requirements.

     
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