Internal Hires & AA Record Keeping
Suppose a company has a requisition open to external applicants, but the position is ultimately filled internally due to interest shown by a current employee. What are best practices for Affirmative Action record keeping in this situation?
Should the employee apply for the opening?
Would the external applicants still be considered as part of the applicant pool or would they be excluded since they can no longer be associated with an external hire?
Any insight in addition to these questions would be greatly appreciated.
First of all, keep in mind that even if you eventually filled the position with an internal candidate, OFCCP may still expect you to show proof that you listed the job with the Employment Service Delivery System (ESDS) since you started out considering external candidates at the onset. The Equal Opportunity Clause under VEVRAA
, which sets forth the mandatory job listing requirement, specifically states that the exception for jobs filled internally “does not apply to a particular opening once an employer decides to consider applicants outside of his or her own organization.”
As far as best practices go, it is advisable to keep records not only of your external applicants but also your internal applicants. This way, you would be able to show a timeline indicating when your internal applicant expressed interest in the position. Thus, it would be advisable to have the employee apply to the job opening.
As for including the external applicants in your applicant pool, OFCCP recommends that contractors include them in the applicant pool for this position, even if it will show that no one was hired for this job, and notate it stating that the successful candidate for this job came in internally.
Posting Positions versus Personal Action Forms
This question is for our internal employee actions. Do we have to post positions which increase in FTE (full time equivalent) but does not impact salary or benefits or can these types of internal employee actions be handled via Personal Action Forms?
Should the Manager use a published selection criteria when making these decisions (seniority?)
There are two requirements that contractors need to comply with that are relevant to your question.
The first is the mandatory job listing requirement under VEVRAA, which requires contractors to list their job openings with the local Employment Service Delivery Systems (ESDS) where their jobs are located. All jobs need to be listed with the exception of three categories: 1) executive and senior management positions, 2) positions that will be filled internally, and 3) positions lasting three days or less.
If the positions you are referring to will be filled by individuals who are already on your organization’s payroll, then there is no need to post these positions with the ESDS, as these are considered as jobs filled internally.
The second requirement is the periodic review of your personnel processes which is a required component of a contractor’s affirmative action plan. As a contractor, you will need to ensure that regardless of whatever criteria you use, your criteria, processes, and decisions on promotions, transfers, selection for training, and other personnel actions or employment decisions, do not discriminate against protected groups and do not limit their access to these opportunities. It is also important to have these criteria and processes documented and apply these consistently. You are required to periodically review these processes and document this review, with a description of the review and any modifications to your processes based on the results of your review.
You can find more information on this under the “Equal Opportunity Clause” and “Required Contents of Affirmative Action Programs” in the final VEVRAA rule
Can we post our positions as "varied Shifts"?
Are there and OFCCP/EEOC standards or regulations stating that we cannot post our positions as “shifts vary” etc.…Currently, we are posting each position for each shift. We would like to post the position and list "varied" given that we have positions open for all shifts.
Examples: Local Hospital System
Clinical Nurse I, Charge, Sub-Acute Neuro (Full Time/Varied Shift) -- Varied
Clinical Nurse I, Charge, Sub-Acute Neuro (Per-Diem/Varied) -- Varied
The mandatory job listing requirement under VEVRAA
, which is enforced by OFCCP, states that contractors must provide information about the job vacancy in any manner and format permitted by the appropriate employment service delivery system (ESDS), which may vary from state to state. Therefore, how you list your positions on the ESDS will be based on what the requirements of the specific state where you are posting. From our experience working with all of the ESDS states, it is acceptable to post positions where the employer indicates that shifts may vary. Most states also have the option to select the number of openings you have for a position, enabling you to post once for multiple shifts.
Resume Search Results For OFCCP Audit
What information needs to be saved from a resume search in order to be compliant? If we run a search for resumes through a job board are we required to save the search results and resumes that we viewed or do we need to save only our search criteria?
When performing resume searches on an external resume database, contractors must maintain the following records: 1) a record of the position for which each search was made, 2) the search criteria used that corresponds to each search, 3) the date of the search, and 4) the resumes of those job seekers who met the basic qualifications for the particular position who are considered by the contractor.
However, contractors are not required to maintain the resumes of individuals if the contractor did not consider them. Contractors are also not required to maintain a record of searches that do not produce candidates that meet the basic qualifications.
Contractors should also retain these records for a specified length of time depending on the size of the company and the contract it holds. For companies with fewer than 150 employees or a contract of at least $150,000, the record retention period is one year. Contractors with at least 150 employees and a contract of $150,000 are required to maintain the records for a period of two years.
For more guidance on this topic, see OFCCP’s Frequently Asked Questions on the Internet Applicant Recordkeeping Rule
Transgender Bathroom Debate - Question about facilities compliance
I'm trying to stay current on this topic. Title VII (the EEOC's position on Title VII) and EO 13672 address discriminatory behaviors. Do either of these regulations talk specifically about the actual restroom facilities? Are there facility design elements required for compliance? For example, is there anything new regarding signage for restrooms.
You are correct that Title VII of the Civil Rights Act of 1964 and Executive Order 13672 both address sex discrimination broadly. However, Executive Order 13672 does include the following: “To comply with its obligations under the Order, a contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result.” It further continues by defining “facilities” as “waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms….” Facility design and signage are not specifically mentioned.
In addition, EEOC case law and guidance provided by EEOC, OFCCP, OSHA, and other federal government agencies all take the position that employers should provide employees access to restrooms consistent with their gender identity. In at least one discrimination case, EEOC ruled that “denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination.”
OFCCP also addressed this in one of their Frequently Asked Questions on E.O 13672 and stated that “contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee” and that “contractors must allow employees and applicants to use restrooms consistent with their gender identity.”
You can access further information and guidance on this topic in these publications:
EEOC’s Fact Sheet on Transgender Bathroom Access Rights
OFCCP’s Frequently Asked Questions on E.O. 13672
OFCCP’s Fact Sheet Defining Sexual Orientation and Gender Identity
OSHA’s A Guide to Restroom Access for Transgender Workers
As a federal government sub-contractor, is it required that everyone that works at our organization be a US Citizen? Or is it acceptable that they be "eligible to work in the US" and can pass e-verify with documents that verify that they are eligible to work in the US while not necessarily being a US Citizen?
It is not required that everyone be a U.S. citizen. You're correctly that your employees will need to be able to document they are able to legally work in the United States. However, there are numerous federal contractors and subcontractors that have employees in the U.S. who are foreign nationals here on H-1B or other visas.