OFCCP Ask the Experts
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  • What is the definition of "intern" per OFCCP?
    Asked by Anonymous - Feb 23, 2016
    Can you please explain the difference in "intern" and

    I believe that an intern is Temporary part-time. Is this accurate.
    I would also appreciate some additional clarity on the differences / definitions of:

    Temporary part time
    regular part time
    regular full time

    Thank you.

    Answered by Bill Osterndorf from HR Analytical Services - Feb 23, 2016
    OFCCP does not define the term "intern" in any of its regulations. Each individual organization has the right to determine whether an individual is an "intern."

    OFCCP is interested in whether persons or employees or non-employees. 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.

    OFCCP also does not define the terms "temporary," "regular," "part-time," or "full-time" as they relate to employment status. Organizations are allowed to determine what constitutes part-time and full-time status. An individual's status as a temporary suggests that individual will be working for the organization for a limited period. OFCCP has defined no time frame that distinguishes a temporary from a regular employee. The only specific language relating to temporary employees is found in OFCCP's veteran regulations, which state that positions of three days or more must be listed with the relevant Employment Service Delivery System (assuming that these positions met several other criteria found in the veterans regulations). (See 41 CFR 60-300.5)

    There are also two types of temporaries who may work for an organization. There are temporaries who work directly for an organization and who are on that organization's payroll, and temporaries who work for a temporary agency and are placed on an organization's job site. OFCCP would suggest that temporaries who work directly for an organization that is a federal contractor or subcontractor should be included in statistical reports prepared under OFCCP's regulations. OFCCP has in the past suggested that temporaries working through a temporary agency at the worksite of a federal contractor or subcontractor would not be included in the statistical reports prepared by the federal contractor or subcontractor until and unless temporaries of this type are moved to the contractor or subcontractor's regular payroll. The current status of what OFCCP expects in regard to tracking information on temporaries working at a contractor or subcontractor site through a temporary service is somewhat murky, though.

    The simple answer to your question is that your organization basically gets to define the terms you have listed above. OFCCP's interest is in whether you properly track information and provide affirmative action for applicants and employees.

  • definition of minority and female
    Asked by Anonymous - Feb 19, 2016
    Q. does female include white female in the definition?
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Feb 19, 2016
    Females are of any race. A Black female is doubled counted as a minority and as a female. A White female is only counted as a female.

  • EOE statement on Pre & Post-offer self-identification forms
    Asked by Anonymous - Feb 18, 2016
    Would someone please provide the wording that will meet the OFCCPs requirements for the pre and post-offer invitation to self-identify forms? I have seen so many versions that I am no longer certain what specifically needs to be communicated. I know the language must (1) notify the applicants that the company is an EOE/AA employer (2) subjet to record keeping and reporting requirements (2) voluntarily invite the applicant to self identify (3) Notify them that they are under no obligation to provide the information (4) Notify them that no adverse action will be taken should they opt out (5) Communicate that the information will be kept separate from the application. If anyone has a template of the exact language and is willing to share, I would appreciate it.
    Answered by Roselle Rogers from Local JobNetwork™ - Feb 19, 2016
    Under the new regulations, contractors are required to invite applicants to voluntary identify if they are an individual with a disability or a protected veteran at both the pre-offer and post-offer stages of the application process.

    OFCCP specifies the language that contractors should use for the pre-offer and post-offer voluntary self-identification for individuals with disabilities. It is an OMB-approved form and as such, its content should not be modified or altered. You can find a copy of the form in English and other languages on OFCCP’s website here.

    For surveying veterans, OFCCP did not prescribe a form. However, Appendix B of the new VEVRAA regulations does include sample language for the invitation to self-identify that contractors may choose to use. You can find the sample language on page 66 here.
    Answered by Bill Osterndorf from HR Analytical Services - Feb 20, 2016
    As a follow-up to Roselle's response, it may be worth noting that the sample post-offer language found in the federal regulations is now somewhat obsolete. That language was predicated on the idea that federal contractors and subcontractors would need to survey employees for each protected veteran classification. When the Veterans Employment and Training Service (VETS) decided to revise the report submitted to that agency so that the report no longer requires information on each specific protected veteran classification, OFCCP's regulations were also affected since OFCCP's regulations specify that surveying of employees should follow the categories reported to VETS. Employers can continue to survey for employees for each protected veteran classification, but there is no formal requirement to do so. Instead, the veteran survey for employees can very much follow the format of the veteran survey for applicants. Employees must be informed of the nature of each veteran category, but employers can then ask for a general response of "Yes/No/Don't wish to identify" rather than asking for a response on each protected veteran classification.

    In regard to survey forms on race.,ethnicity and gender, OFCCP has provided very little instruction on what constitutes an appropriate survey. The five points you mention above are worth including on race/ethnicity/gender survey forms for applicants and employees, but it's not clear that even these points are strictly required.

    Roselle is exactly right in that there is no discretion whatsoever in regard to the survey form for disability status. Federal contractors and subcontracts MUST use OFCCP's form. (A side note: organizations that are federal contractors or subcontractors continue to be PROHIBITED from collecting disability information from applicants at the pre-offer stage of selection process.)

    If you're interested in seeing the version of the survey forms my company has created on race, ethnicity, gender, and veteran status for applicants and employees, you may contact me.

  • Temporary Hires - required to post to ESDS?
    Asked by Christina M. - Feb 09, 2016
    We have a question in regards to temporary hires through an agency. What is the requirement around posting to ESDS for these roles? We may have someone come in just for an afternoon or for 5 days, depending on the assignment. These are not temp to hire but purely temp positions and they are on an agency's payroll, not our own. Are we required to post these positions to ESDS?

    Thank you.
    Answered by Bill Osterndorf from HR Analytical Services - Feb 10, 2016
    Here's a good consultant answer: you're probably not required to list these positions with the ESDS.


    Traditionally, OFCCP would consider temps on someone else's payroll to be the employees of the temp service. It would be incumbent on the temp service to list positions with the ESDS rather than your obligation to list the temp positions with the ESDS.

    This happens to be one of those issues where the waters are becoming murky, though. More and more, we're seeing the federal regulatory agencies think of situations where agency temps are used as co-employment situations. If OFCCP were to take this position, then your organization might be under some obligation to list with the ESDS if the temp position is for three days or more AND your organization has a federal contract or subcontract of $150,000 or more.

    For the moment, the right answer might be to work with your temporary agency to ensure that the agency is listing all of of its openings with the relevant ESDS office. That way, the "right" employer (i.e. the employer who technically "owns" the temp) is doing the ESDS listing.

    I would strongly encourage you to keep watch as to what is occurring in the regulatory environment, though, since we know issues concerning the contingent workforce are of very great interest to the current administration.

  • Voluntary record keeping
    Asked by Anonymous - Feb 03, 2016

    I wanted to see how long a government contracting company need to keep employee’s voluntary disability disclosure forms once they are no longer with the company?

    Thank you,
    Answered by Roselle Rogers from Local JobNetwork™ - Feb 11, 2016
    OFCCP requires federal contractors to retain records of all activities it undertakes to comply with the Section 503 requirements for three (3) years. This is important because OFCCP wants to see trends and will be reviewing the data during a “snapshot” of time. This includes, among others:

    a. the voluntary self-identification forms completed by applicants and employees;
    b. evidence of outreach efforts undertaken by the contractor; and,
    c. documentation showing that the contractor is assessing its outreach and recruitment efforts on an annual basis to gauge the effectiveness of its efforts, as well as the results of that assessment.

    For more information on this, refer to question 20, on the OFCCP FAQ’s and sections f(4) Recordkeeping Obligation and (k) Data Collection Analysis in the Section 503 regulations.

  • LinkedIn Searches
    Asked by Anonymous - Feb 02, 2016
    Does the OFCCP require us to save our candidate searches that we do for social media sites such as LinkedIn?
    Answered by Jacquelyn Peterson from Local JobNetwork™ - Feb 04, 2016
    OFCCP has historically maintained that job seekers can become a contractor’s Internet Applicant even if the job seeker did not apply to the contractor directly if the contractor considers the job seeker’s resume on a third party resume database and meets the rest of the Internet Applicant definition. OFCCP has taken the position that pipelining candidates for future positions may make them Internet Applicants. The definition requires submission of an expression of interest, but does not specifically require the submission be to the contractor directly. For example, imagine a contractor reviews 10 identical resumes on LinkedIn that fit an open vacancy, ignores the seven from women and men with Asian or Hispanic sounding names and contacts only the three remaining males for informational interviews. In this situation, OFCCP might take the position that all 10 are Internet Applicants for whom the contractor must account in its records, as none of the seven job seekers who were not contacted have as yet shown a lack of interest in the contractor’s job. Many commercial resume databases have features that automatically track these types of searches performed in the resume database along with reporting tools on those searches for OFCCP compliance. OFCCP’s definition of Internet Applicant is found at 41 C.F.R. § 60-1.3 and its recordkeeping rule is found at 41 C.F.R. 60-1.12.

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