OFCCP Ask the Experts
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  • Blind Job Postings
    Asked by Ashley V. - Apr 28, 2016
    We would like to review resumes for a possible position without actually posting the position to our website. Is there a way to do a blind posting with a staffing agency or post a position to a job board without sending the candidate to an online application and still be OFCCP compliant? Can we review resumes and contact candidates without having a requisition to tie the search to?
    Answered by Bill Osterndorf from HR Analytical Services - Apr 28, 2016
    The primary issue here isn't whether you need a formal requisition or whether you need to follow your standard recruitment and selection practices. The primary issue here is that federal contractors and subcontractors are required to list open positions with the relevant Employment Service Delivery System (ESDS) office (i.e. the relevant state employment service office) under the affirmative action regulations for protected veterans. These regulations provide for only three exceptions in regard to positions which do not need to be listed with an ESDS office:

    - Openings of three days or less
    - Openings that will be filled internally
    - Openings that involve "executive and senior management" positions as defined in the regulations

    See 41 CFR 60-300.5(a)

    This means that if you are filling a professional position that requires a high level of skill or experience, it still needs to be listed with an ESDS office.

    The only way to effectively do a blind posting without involving your organization would be to have a staffing agency list the position with an ESDS office under the staffing agency's name, and then provide you with candidates. You would need to insist that the staffing agency provide you with copy of the ESDS listing in case it is requested during an OFCCP compliance review.

    If you intend to do a blind posting on your own to various job boards, you will likely run into trouble with the ESDS listing requirement. You can certainly talk to a local veteran's rep at one of the ESDS offices to see how this situation might be handled so long as you know ahead of time that you aren't likely to be able to use an ESDS office to run a blind ad.

    A secondary issue that you face is that federal contractors and subcontractors are required to make outreach efforts to recruit qualified minorities, females, veterans, and individuals with disabilities. You may find job boards or other recruitment sources that serve these groups that are willing to take your blind ad. However, the fact that you're running a blind posting does not relieve your organization of its outreach responsibilities.

    A final note on process. As I said above, you can decide that in certain special circumstances, you will follow a different recruitment and selection process than your usual process. However, you will need to ensure that this process allows you to appropriately collect data, including demographic data on race, gender, veteran, and disability status, from qualified applicants. You will also need to ensure that the process gives appropriate treatment to all candidates during the selection process.

    Here's the bottom line: it's hard to do a blind posting and remain compliant with the federal affirmative action regulations.

  • Follow up Question: Data Collection for VEVRAA and Section 503 AA Plans
    Asked by Anonymous - Apr 19, 2016
    While gathering data for our count of job openings and jobs filled, we have stumbled upon some questions regarding how to set the date parameters on our reports for this data.

    In regards to these regulations, OFCCP's FAQs seem to define a "hire" as "applicants (both internal and external to the contractor) who are hired through a competitive process." By contrast, hires seem related to external applicants only in terms of EO 11246. Yet in both situations the hire date dictates whether or not a hire and the associated applicant pools should be included in the data for the AA plan.

    Using this logic to count our number of openings, we concluded that the openings should also be counted based on the hire date. That is, a job opening would be a job opened at any time but filled or cancelled during the AA plan year. For example, a plan year runs from 1/1/15 - 12/31/15. A requisition is opened on 12/1/2015 and closed on 12/30/15, but the employee is not hired until 1/3/16.

    For all other purposes, data related to this hire would be reported with the 2016 plan. However, it is unclear whether or not this should count as a job opening for 2015 or 2016. We are assuming that it would count as an opening for 2016 based on the hire date (as with all other data).

    Is this correct, or should we instead be basing our parameters on the requisition open date and counting it as a 2015 opening? Does OFCCP offer any guidance on how date parameters should be set for this data, or is this left to the employer's best judgment? We are trying to keep our data consistent across all levels but are finding this to be an arduous task.

    Thank you.
    Answered by Bill Osterndorf from HR Analytical Services - Apr 19, 2016
    The FAQs issued by OFCCP in regard to how to count data for the data collection analyses in the veteran and disability AAPs are a serious problem.

    We can start with the idea that the definitions used in these FAQs are inconsistent with other materials published by OFCCP. For example, the FAQs define a "hire" as an internal or external selection through a competitive process. Typically, we would call an internal selection through a competitive process a "promotion," not a "hire." In the Executive Order AAP, federal contractors and subcontractors are instructed to analyze data on both "hires" and "promotions," and the itemized listing that organizations receive at the start of an OFCCP compliance review asks for data on both hires and promotions. Thus, OFCCP appears to have a major inconsistency in what constitutes a "hire".

    The question of "jobs opened" and "jobs filled" is somewhat simpler. "Jobs opened" are positions that were opened to candidates. Positions that were cancelled, filled in a subsequent AAP year, or otherwise unfilled where candidates were considered constitute "jobs opened." (I will leave the question of what is considered a "job filled" since your post does not ask about this issue, but I will say that the FAQs are not helpful on this issue.) Applicants who expressed interest in jobs opened but not filled would be included in the data collection analysis in the veteran and disability AAPs, while they would typically be excluded from data shown in the Executive Order AAP (i.e. the AAP for minorities and females).

    The bottom line is this: the FAQs would cause employers to treat data in the AAPs for veterans and individuals with disabilities differently than the data in the Executive Order AAP. Data on applicants that would not be included in the Executive Order AAP personnel activity summaries may be included in the data collection analyses in the veteran and disability AAPs. Data on hires in the Executive Order AAP personnnel activity summaries would be different than data on "hires" in the veteran and disability AAPs.

    As with so many things concerning OFCCP in the last few years, there is no clear answer here. OFCCP has provided little guidance on regularizing these two seemingly conflicting sets of standards. Thus, one choice is to follow the regulations for the Executive Order AAP and the FAQs for the veteran and disability AAPs, and realize you will have inconsistent data. Another choice to use the same rules in preparing data for inclusion in all AAPs, realizing that you will either not be following the FAQs for the veteran and disability AAPs or not following the regulations surrounding the Executive Order AAP.

    Two things may be helpful here.

    * First, FAQs are not law; they are interpretive guidance by OFCCP. OFCCP may be unhappy if you fail to follow its FAQs, but you would have a legitimate argument to suggest that OFCCP's FAQs are not a proper interpretation of the veteran and disability regulations.
    * Second, on a purely practical level, it's not clear OFCCP is doing an in-depth review of the data submitted in the veteran and disability regulations. It's more important to get your applicant and hire data right for the Executive Order AAP than it is to get your data metrics right for the veteran and disability AAPs, since OFCCP certainly does continue to closely review the applicant and hire data on race, ethnicity, and gender.

  • EO 11246
    Asked by Anonymous - Apr 18, 2016
    Do we have to post any statement about Executive Order 11246 pay transparency on our website?
    Answered by Bill Osterndorf from HR Analytical Services - Apr 19, 2016
    You need to make the pay transparency language provided by OFCCP available to applicants and employees. This probably means you do, in fact, need to make this language available on your website unless you have another way to reach all applicants.

  • Data Collection for VEVRAA and Section 503 AA Plans
    Asked by Anonymous - Apr 14, 2016
    1. When gathering data for these plans (total applicants, jobs opened/filled, hire, etc), we are simply totaling the counts for each set of data. Is there any requirement for us to split these counts out by EEO Job Title Classification?

    2. When should a cancelled requisition be considered as a job opened or filled, if at all?

    Thank you.
    Answered by Bill Osterndorf from HR Analytical Services - Apr 14, 2016
    Answer to question 1: You are not required to split out data by job title, job group, or any other segmented classification. The data metrics are done by the establishment as a whole. The only statistical report in the vets or disability AAPs by any subgroup is the utilization analysis in the disability AAP.

    Answer to question 2: A cancelled requisition would be a job opened, but not a job filled. Absent some very unusual circumstance, this would be the situation for any cancelled requisition.

  • Recommended List of Disposition Codes
    Asked by Amber S. - Apr 13, 2016
    I work for an engineering firm as the recruiting manager. The current list of disposition codes, established by my predecessor, are a combination of status/disposition - so therefore very confusing to the hiring managers as to which one to use. I'm hoping someone could provide a standard list that we could develop a correct list off of - sort of a "best practices" list of codes.
    Answered by Bill Osterndorf from HR Analytical Services - Apr 13, 2016
    The disposition codes that an organization should be tailored to the manner in which that organization conducts its recruitment efforts. Thus, there is no one set of universal disposition codes that are relevant to every organization.

    In terms of "best practices," disposition codes should include the following:

    - Information on the reason a candidate is no longer under consideration
    - Information on when a candidate fell out of consideration
    - Information on who made the decision that caused the candidate to fall out of consideration

    For federal contractors and subcontractors, there should be dispositions that would remove the candidate from applicant data that would be submitted to OFCCP during a compliance review. This would include the following types of dispositions:

    - Dispositions indicating that the candidate did not meet some particular basic qualification (such as an educational or experience requirement) for an open position
    - Dispositions indicating that a candidate withdrew from consideration (by actively withdrawing, by failing to respond to contacts from your organization, or by having a criteria for a position your organization cannot meet)
    - Dispositions indicating that a candidate failed to properly follow your organization's process for consideration (for example, by failing to meet a time frame for applying or by applying for a position that was not open)

    Whenever possible, there should also be dispositions for qualified candidates that indicate the type of criteria that made a candidate less qualified than the individual who was selected.

    Some organizations have very lengthy lists of dispositions. Others have shorter lists which they supplement with notes regarding what happened to candidates. As I noted at the start of this response, your list of dispositions must fit your particular organization.

    If you are interested in the particular list of disposition codes we have developed at my firm, you may contact me directly at wosterndorf@hranalytical.com. The list is too long to reprint here.

    I hope this is helpful.

  • AAP Structure
    Asked by Anonymous - Apr 11, 2016
    Currently, our AAPs are structured by reporting location (individuals are in the AAP location where their supervisor sits). We have had many supervisor changes throughout the year so it gets complicated in tracking changes for individuals who have moved from supervisor to supervisor and consequently from plan to plan.

    Can we structure the plans by employee location for the following AAP year so that we are evaluating mostly the same group of individuals each year? If so, what happens with those locations that have less than 50 employees, would they have to be rolled up into the supervisor's plan or can we maintain a smaller plan for those locations as well?
    Answered by Bill Osterndorf from HR Analytical Services - Apr 12, 2016
    As you're probably aware, establishments with 50 or more employees must have their own affirmative action plans. You have three options for establishments with less than 50 employees:

    - These establishments can have their own AAPs
    - Employees in an establishment with fewer than 50 employees can be included in the AAPs that cover the personnel function that supports the establishment
    - Employees in an establishment with fewer than 50 employees can be included in the AAPs the cover the "official to whom they report"

    See 41 CFR 60-2.1(d)2

    Thus, an answer to your last question is locations with fewer than 50 employees can be placed in their own AAPs.

    Your remaining questions have no simple answer. It appears that you know that the affirmative action regulations indicate that employees "who work at establishments other than that of the manager to whom they report, must be included in the affirmative action plan of their manager." (41 CFR 60-2.1(d)1) However, this requirement should be tempered by the fact that OFCCP generally expects that most of the employees at any given establishment (i.e. any given location) are included in the affirmative action plans for that location. An OFCCP compliance officer may have a difficult time conducting a review of an affirmative action plan where a significant number of employees based at the relevant establishment are not included in the establishment's AAP.

    OFCCP's expectation that employees would be placed in AAPs with their supervisor was an outgrowth of the agency's reviews involving corporate headquarters. The agency clearly anticipated that the requirement about placing employees with their supervisors would primarily affect senior managers. However, the world has become far more complicated since this provision was adopted by OFCCP, and it is not unusual for professional and even clerical employees to report to a supervisor at a different location. This appears to be something that OFCCP did not expect, since the agency's regulations, policies, and practices are still primarily focused on compliance reviews involving a given establishment.

    You need to make a strategic decision regarding the design of your affirmative action plans. You can either have highly complex AAPs that include and exclude employees at any given establishment depending on reporting lines, or you can have simpler AAPs that include a significant portion of the employees at a particular establishment even if their supervisors are located elsewhere. (A third option would be to develop functional AAPs for your organization, but you would need to receive OFCCP's permission to develop functional AAPs.)

    There are times when simpler is better, and for you this may be one of those times. While technically it appears that all employees should be in the AAP of their direct supervisor, you may be best served by having AAPs where most employees at a given establishment are included in that establishment's AAPs. Senior managers could still be included with their supervisor, but it might make sense to keep professional and clerical employees with the relevant establishment.

    Please understand that OFCCP will potentially have questions for you regardless of the way you design your AAPs. If too many employees who are physically based at a particular establishment are not included in that establishment's AAPs, an OFCCP compliance officer may raise questions. Conversely, a compliance officer may raise questions if the provisions of 41 CFR 60-2.1 are not being strictly followed. You will simply need to make a decision on AAP design and then prepare responses on how and why your AAPs were designed.

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.