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;
• 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.