OFCCP Onsite Visits - Documentation and Lead Time
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?
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.
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
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.
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
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?
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
We are in the process of implementing a new applicant tracking system and I was asked if we would like to ask the race/ethnicity question in 2 parts. For example, question 1 asks for Ethnicity (Hispanic/Latino, Not Hispanic/Latino, Choose Not to Identify) and then question 2 asks for Race (all race categories).
I would prefer to keep it as one question for Race/Ethnicity and then include all ethnicities and race categories. Is this ok or should it be broken out into 2 questions?
It is not unusual for companies to have all ethnicities and race in one question on survey forms used for applicants and employees. The approach that suggests companies should survey for Hispanic origin first and then ask about race is an outgrowth of revisions that were made to the federal EEO-1 report several years ago. Technically speaking, "Hispanic" is considered an ethnicity by EEOC while classifications such as "African American" or "American Indian" are considered races.
It's interesting to note that OFCCP's formal regulations have never been changed to mirror EEOC's approach to race and ethnicity. OFCCP's regulations continue to suggest there are five race categories, while EEOC's EEO-1 report suggests that Hispanic is a race and that there are then six race categories to choose from for non-Hispanics. One of the reasons this is important is that EEOC does NOT have a formal requirement to collect race, ethnicity and/or gender data from applicants. Only OFCCP has such a requirement. Both EEOC and OFCCP require the collection of race and gender information from EMPLOYEES, but applicant surveys are actually instruments of OFCCP and not EEOC.
The bottom line is that it there are other employers collecting race and ethnicity data by including race and ethnicity in one question, and this seems to be acceptable to EEOC and OFCCP.
Employee Self-Identification for Vets and IWD
My company completed the initial employee self-identification event about a year and a half ago for Vets and Individuals with Disabilities. We also ask for these self-identification forms be filled out with new hire paperwork. We plan on re-surveying the entire employee population within the required timeframes, but probably not until next year. My question is this - one of the HR Managers in one of our plant facilities would like to conduct an event to ask for employee self-id's again within the next few months. Again, we are not planning a company-wide event for another year. Is it ok for one of our locations to conduct this survey separately, or should we be consistent and have all locations conduct the re-survey at the same time?
The employee self-identification regulations require that contractors invite applicants to self-identify at both the pre-offer and post-offer phases of the application process and also requires that contractors invite their employees to self-identify every five years. From a record-keeping standpoint, it may not make sense to have one location conducting a survey separately, but that would be an individual business decision. If there is a business need to do so, there is nothing that prohibits contractors from conducting a survey more frequently than every five years. For more information you can review highlights of OFCCP’s Section 503 of the Rehabilitation Act here.
Duration of External Postings
As a government contractor, is there a minimum length of time in which a job must be posted externally to meet a minimum requirement? As an example, what if we find the "perfect" candidate the 1st or 2nd day a job was posted: Can we remove the posting or so we need to keep it open for a specified length of time?
There is no minimum or maximum requirement for the length of time in which a job must be posted to meet the VEVRAA requirements. Positions should be posted as soon as you start your hiring process and should remain posted until you have made an offer to a candidate. The specific wording from VEVRAA’s Equal Opportunity Clause
states: “Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a bona fide job order, including the acceptance of referrals of veterans and nonveterans.”