OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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  • Who to Include as Movements in Goal Attainment
    Asked by Anonymous - Apr 11, 2016
    In regards to Affirmative Action planning, who should be counted as a movement when analyzing Goal Attainment? We are currently including new hires and promotions (which we define as a job title change with a pay increase). However, should we also be including demotions and reassignments/lateral moves (job title change without a pay increase)?
    Answered by Bill Osterndorf from HR Analytical Services - Apr 12, 2016
    Hires and promotions is the correct answer. You should not include demotions. Organizations typically do not show reassignments and lateral transfers as placements. If a reassignment or lateral move constituted some kind of positive change for an employee in terms of pay, future opportunities, and/or increased responsibilities, you might be able to consider that as a placement. However, you would potentially need to explain to OFCCP why you were counting that kind of change as a placement.

    The safest and best answer is to count only hires and promotions as placements.

     
  • Preferred way to detail the Outreach Assessment?
    Asked by Anonymous - Apr 07, 2016
    Hello! We recently received a scheduling letter from the OFCCP. Before the plan is submitted, is there a preferred way that the OFCCP would like to see our Outreach Assessment? What are the key components for this requirement?
    Answered by Roselle Rogers from Local JobNetwork™ - Apr 07, 2016
    Under the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) and Section 503 final rules, contractors are required to conduct an annual assessment to determine whether the chosen methods of outreach and recruitment have been successful, and document the results of this assessment. The assessment must include: a) the criteria the contractor used to evaluate the effectiveness of each method, and b) the contractor’s conclusion as to whether each method was effective.

    This shall include the data collected for the current year and the two most recent previous years on: the number of applicants who self-identified as protected veterans or individuals with disabilities, the total number of job openings and total number of jobs filled, the total number of applicants for all jobs, the number of protected veteran applicants or individuals with disabilities hired, and the total number of applicants hired.

    If the contractor finds that its efforts were not effective in identifying and recruiting qualified protected veterans and individuals with disabilities, it must implement alternative outreach and recruitment methods. Contractors are also required to retain their assessment for three years, so they can evaluate the success of their outreach and recruitment efforts for veterans and individuals with disabilities over time.

    For more information, refer to “Assessment of external outreach and recruitment efforts” in the VEVRAA final rule here.

     
  • EEO TagLine
    Asked by Anonymous - Apr 06, 2016
    We are looking to review our EEO Tagline.

    This is what we are currently using: "Company Name" is an equal opportunity employer.

    What do you think we need to add to be compliant.


    Answered by Roselle Rogers from Local JobNetwork™ - Apr 07, 2016
    Federal contractors are required under Executive Order 11246, Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), Section 503, and Executive Order 13672 final rules to state in all solicitations or advertisements for employees their status as an equal opportunity employer and that all qualified applicants will receive consideration without regard to their status as a member of a protected group. The Office of Federal Contract Compliance Programs (OFCCP) advises against using abbreviations and provided a sample tagline you could use in its E.O. 13672 Frequently Asked Questions that states the following: “Equal Opportunity Employer – minorities/females/veterans/individuals with disabilities/sexual orientation/gender identity.”
    Answered by Bill Osterndorf from HR Analytical Services - Apr 07, 2016
    To emphasize something Roselle was saying, it's important to note that there are very specific requirements in the veteran and disability regulations. Federal contractors and subcontractors covered by the veteran regulations MUST reference veterans, and organizations covered by the disability regulations MUST reference individuals with disability.

    This presents a somewhat awkward situations for companies hoping to use a short EEO tagline. The minimal tagline would need to say "Equal Opportunity Employer-vets/disabled". However, this tends to make it appear only vets and individuals with disability are provided with equal opportunity protections.

    OFCCP has complicated this situation by saying that if one references one of the classes in Executive Order 11246, all classes must be referenced. Thus, it would be insufficient to say "Equal Opportunity Employer-minorities/females/vets/disabled". Even the sample that OFCCP has provided theoretically would not meet this standard, as it does not reference three other classes covered by the Executive Order: religion, national origin, and color.

    This leaves, in essence, the following options for taglines:

    1. Reference only veterans and individuals, using a tagline like "Equal Opportunity Employer-vets/disabled"
    2. Use the tagline OFCCP has suggested
    3. Use a more complete tagline such as "Equal opportunity employer. This company considers candidates regardless of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status"

     
  • 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.

     
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