OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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  • Requisition with Hires Spanning Multiple Plan Years
    Asked by Anonymous - Apr 04, 2016
    We have a requisition with two hires: one hire in the previous plan year and one in the current plan year. I understand that the applicant pool must be a part of our data for both plan years, correct? Additionally, does the hire from the previous plan year still need to be included in the current year's applicant pool or may that individual be omitted from the applicant data?
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Apr 04, 2016
    It doesn't matter when the requisition was opened. All of the applicants are counted in the AAP year when the requisition is filled. For instance, you have a calendar plan year and the requisition was opened on 12/1/15 but not filled until 1/15/16, all the applicants (and hire) would not be considered in the 2016 plan data because they were hired outside of the date perimeters for the collection of the personnel activity data to support the 2016 plan (1/1/15 - 12/31/15). However, if the requisition was filled on 12/30/15, all of the applicants (and hire) would be counted in the data.

    If you have one requisition with two hires and they crossed over plan years then you do need to count some of the applicant in the 2016 and some in the 2017 data. For example, requisition was opened 12/1/15 and first hire was made 12/30/15. I would count only those applicants in the requisition who applied and were considered for this initial hire. Anyone that applied to the same requisition after the date of the offer should not be considered in the 2016 AAP data. Those applicants would be counted in the 2017 data to support the hire made in 2016.

    Needless to say, if you know that one requisition is going to cross over plan years, it is best to close it out and re-open another one. You can transfer over the applicants after the position was filled the first time since you know that they have shown an expression of interest in the same position.

     
  • Compliance Evaluation Letter Received!
    Asked by Anonymous - Mar 29, 2016
    Is it 30 calendar days to respond or 30 business days to respond? The requirement is not clear. Thank you!
    Answered by Bill Osterndorf from HR Analytical Services - Mar 29, 2016
    30 calendar days.

    A quick note: OFCCP will now tell you that 30 days means 30 days. Don't count on receiving an extension if things aren't ready within the 30 calendar days.

    Also, an OFCCP compliance officer may contact at some point between now and the end of the 30 days offering technical assistance and asking if you have questions. I would encourage you to be careful with what you tell the compliance officer during this discussion.

    If you happen to have time, it would be interesting for readers of this site to know what OFCCP office sent you a scheduling letter. There has been remarkably little activity out of most OFCCP offices lately.
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Mar 29, 2016
    It is 30 days from the receipt of the scheduling letter, not 30 days from the date on the letter as stamped by OFCCP. It is usually 30 calendar and not business days. One of my clients just got an extension to the 30 days but only because the OFCCP sent the letter to their old address and it took 2 weeks to be forwarded to the new address.

     
  • Job Posting Requirement - Student Intern
    Asked by Maria L. - Mar 25, 2016
    I understand there are only three exceptions to the job posting requirements; I am wondering if we need to post a position on our website and concurrently with the state job board and other diversity job boards for a student intern program. My company has participated in hiring a high school student through the Step-Up Achieve program organized by the City of Minneapolis and Chamber of Commerce, and other local organizations. The high school students are required to complete a program preparing them to work over the summer at businesses that support the program's efforts and the students are placed based on their interest and the businesses need.

    The question we have is - Does the Step-Up summer student internship position need to be posted? We use a 3rd party to post our job postings to state job boards and many other organizations. Since we do not necessarily get to choose the student that is placed with our company - although there can be a job interview - does it make sense to post the position because others who would not be eligible to participate in this specific Step-Up program may see it and apply.

    Thank you for your assistance!
    Answered by Amy Wozniak from Local JobNetwork™ - Mar 28, 2016
    You are correct that there are three exceptions to the job posting requirements.

    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.

    The OFCCP does not have specific requirements for interns, however, interns who are paid by an organization and whose work is controlled by that organization, regardless of number of hours employed or nature of the work, would typically be considered employees. Based upon these factors, it would be in your best interest to ensure these positions are posted - either by you, or your third party.
    Answered by Bill Osterndorf from HR Analytical Services - Mar 29, 2016
    Amy has provided you with important information on the three general exceptions to the VEVRAA job listing requirement. Your situation has several interesting aspects that are worth commenting on, though.

    First, it would be interesting to know if you pay your summer interns. If you do not pay your interns, there is a real question as to whether they should be counted as employees. Under such a circumstance where the internship is unpaid, the VEVRAA listing requirement likely does not apply.

    Second, if your organization does not have discretion regarding candidates that are sent for interview, there is a serious question as to whether the VEVRAA listing requirement makes sense in this circumstance. It may be that the Step-Up Achieve Program should be listing these positions, but it doesn't really make sense for your organization to list the position, since you will not (and, in fact, cannot) consider candidates who might be referred by the local state employment service (i.e. ESDS) offfice.

    Third, there is an interesting intersection between OFCCP's Internet Applicant rule and the VEVRAA listing requirement here. From your description, it appears that the only persons who would be qualified for your internship position would be individuals who have been specifically referred by the Step-Up Achieve program. Since no one who would be referred by an ESDS office would be a viable candidate (since they wouldn't be referred by the Step-Up Achieve program), and thus they would not be counted in any of your data that would be presented to OFCCP as applicants, there is no value in having your organization list with an ESDS office.

    Finally, you indicate that this is a program employing a high school student. The VEVRAA listing requirement is meant to provide protected veterans with an opportunity to have early access to open positions. Since it is very unlikely that any person who might be referred under this program would be a protected veteran, there is again no value in having your organization list with an ESDS office.

    I have focused above on the requirement to list open positions with the local state employment service office. There are no requirements in the federal affirmative action regulations to conduct a certain very specific form of outreach for each position other than the VEVRAA listing requirement. There are plenty of requirements to conduct outreach, but none that have the rigorous (and, in fact, mechanical) aspects of the VEVRAA listing requirement.

    Since it appears that the Step-Up Achieve program is meant to provide you with non-traditional (i.e. "diverse") candidates, you should certainly be counting this program as one means towards achieving your affirmative action objectives under Executive Order 11246 (and perhaps Section 503 if the program includes students with disabilities). OFCCP would be very unlikely to cite your organization or to otherwise take any adverse action here because you did not list positions with a local state employment service office in light of the nature of the Step-Up Achieve program.

     
  • OFCCP Onsite Visits - Documentation and Lead Time
    Asked by Anonymous - Mar 25, 2016
    What documentation does the OFCCP typically collect while on-site? We are going through a desk audit and have already provided much of the documentation that is commonly part of an audit. Should the OFCCP request an onsite visit, I'm curious what additional information may be needed.

    Also, I think the OFCCP will provide us with a list of documents and activities they want to cover during an onsite. Is that is a correct assumption? How much lead time is given between the OFCCP requesting an onsite and identifying what they want to accomplish and the actual site visit?

    Thank you!
    Answered by Amy Wozniak from Local JobNetwork™ - Mar 28, 2016
    The nature and scope of the onsite review in each instance will vary depending on the type of compliance evaluation a CO is conducting. They may also vary depending on whether the CO has already identified potential problems during the desk audit phase.

    As far as the lead time is concerned, in preparation for the onsite review, the CO must contact the contractor, or the contractor’s representative, to schedule the onsite review, request any additional information, and identify the contractor officials who will need to be available during the onsite visit. The CO must also inform the contractor that he or she may need additional information and interviews as the onsite review progresses. Having such a discussion prior to the onsite visit provides the contractor with time to locate and make available requested information and interviewees. It also provides notice that the CO may make additional requests for data and interviews. The CO must provide the contractor with written confirmation of the onsite date(s) and time(s) at least three business days prior to the onsite. This confirmation must also include requests for other data and information that the CO is aware of at that time. The confirmation is sent to the contractor by certified mail, return receipt requested; however, a courtesy copy may be sent by email or facsimile.

    To learn more about an OFCCP onsite review, access the Federal Contract Compliance Manual (FCCM) by clicking here.
    Answered by Bill Osterndorf from HR Analytical Services - Mar 29, 2016
    Amy has provided important information in regard to your question about what occurs during an on-site. However, it is worth mentioning that OFCCP is very rarely coming on-site during current compliance reviews. The agency has neither the staff nor the budget to conduct on-sites. The agency is typically able to get the information it wants and needs through various supplemental data requests where information is provided via e-mail or other document transfer. Only in circumstances where OFCCP believes there is a likely finding of discrimination will the agency typically go on-site.

    A much more important question here is "What will happen now that we've sent our information to OFCCP for the initial desk audit?" You can basically count on three things:

    1. OFCCP is likely to ask for additional information on compensation. It is not at all unusual for OFCCP to make extensive requests for additional information on your pay policies, practices, and decisions during a compliance review. There is no way to predict exactly what the agency will ask in this regard. (And it is not impossible the agency will ask no questions on compensation. This does happen occasionally, though not very often as of late.)
    2. OFCCP is likely to ask you to prove that you posted your open positions with the local state employment service (i.e. ESDS) office. I use the word "post" here very consciously, as OFCCP typically requests proof that your positions actually appeared on the website for your relevant ESDS office. Whether you ultimate provide information showing that you "listed" your positions or posted your positions is up to you. You can count on the fact OFCCP will ask for proof that your positions were made available to protected veterans prior to the time they were made available to other candidates using the relevant ESDS office, and the agency typically asks for proof of "posting" in this regard.
    3. OFCCP will unquestionably ask for additional information on the hiring that occurred at your establishment if there is any data that shows a statistically significant hiring disparity in regard to the race, ethnicity, or gender of any particular class of applicants. Note that OFCCP is interested in disparities involving any race, ethnicity, or gender. This means that whites and males may be the subject of an inquiry if there was a statistically significant disparity involving one of these classes, just as there may an inquiry involving females or Hispanics or African Americans or another race or ethnic group is there is a statistically significant disparity involving one of these classes.

    Beyond that, OFCCP is unpredictable. The agency has many new regulations and initiatives that can become part of a compliance review. The questions you will be asked will depend on too many factors to go through in this short amount of space. OFCCP is not limited in the type of questions it can ask about your personnel practices, and the agency frequently turns to a new subject once it feels it has resolved any initial questions it had.

    Good luck with your compliance review. Don't spend time worrying about an on-site visit, but do spend time considering how you would respond to questions in the three areas I've noted above. And take comfort in the fact that OFCCP itself recently indicated that 95% of the compliance reviews during federal fiscal year 2015 closed with a notice of compliance.

     
  • Ruling on Reassigning Candidates to Requisition
    Asked by Anonymous - Mar 22, 2016
    What is the ruling on recommendation for reassigning candidates and how to handle requisitions with heavy volume?

    An example is that a manager will interview a group of candidates and decide to hire them all. They will then post additional requisitions on different dates. Should we contact the candidates and have them reapply each time a new requisition is posted on a different even though it's the same department? If we ask the candidates to reapply, it leaves the requisition open for more candidates to apply although the manager knows who they want to hire.
    Answered by Amy Wozniak from Local JobNetwork™ - Mar 25, 2016
    The best solution would be to open a new position, define the minimum and preferred qualifications for this position, list this position with the local ESDS, advertise the position (even if for just a short time), and encourage your chosen candidate to apply for the position. What you should NOT do is create the new requisition and then move one or more candidates over to this requisition because candidates should always be required to apply to open positions.

    I realize that this requires extra time and effort, but it avoids the potential problems that could arise from comingling your applicant pools. Bear in mind that federal contractors have to comply with the requirements under the Internet Applicant Recordkeeping Rule, which include tracking applicant data and soliciting demographic information. If you port applicants from one requisition to another, you create potential problems such as unduly expanding your applicant pool and counting applicants that probably should have not been counted - which can affect your adverse impact analysis, as well as raise questions regarding whether you performed outreach for the new position. You would be much better off creating separate requisitions to keep your applicant tracking and reporting clean.

    For more information about your obligations under the Internet Applicant Recordkeeping Rule, click here.

     
  • cc-305 self-identification form
    Asked by Anonymous - Mar 15, 2016
    We are in the process of creating the cc-305 form to be displayed in a new ATS and gather the self-identification information. Since we are capturing the applicant's name and the date of the application and the rest of the form is being displayed, are we required to retain/keep the Name and Date fields at the bottom of page 1 of the form?

    Answered by Roselle Rogers from Local JobNetwork™ - Mar 18, 2016
    The CC-305, Voluntary Self-Identification of Disability, is an OMB-approved form and unlike the template that was provided for surveying veterans, its content cannot be altered or changed.

    For more information on how to use this form and what modifications are acceptable to OFCCP, please refer to the “Self-Identification” section in their FAQs here.

     
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