Discontinuing Federal Contractor Status
Our company has decided to discontinue our Federal Contractor status as of April 1, 2016. We have no active contracts.
What is the process that needs to be followed to do so? Can we still ask applicants to self-identify gender and race? What about disability and/or veteran status? Any assistance that you can offer is appreciated. Thank you!
If you are no longer a federal contractor, then the obligations that you were previously relegated to no longer exist.
Even so, keep in mind that certain employers – not obligated to the affirmative action requirements - are required to submit an EEO-1 report on race and gender after employment commences (i.e. on employees not applicants).
Employers who must fill out an EEO-1 report with that data are private employers who are:
1. subject to Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) with 100 or more employees EXCLUDING State and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations;
2. subject to Title VII who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.
To read more about this, click here.
There really is no specific process that needs to be followed. Agencies like OFCCP do not require companies to notify the agency when they receive federal contracts or subcontracts, and OFCCP does not require companies to notify the agency when they are no longer federal contractors or subcontractors.
If you are sure your company will no longer being doing any federal contracting or subcontracting, you are not required to continue preparing affirmative action plans. You are also not required to continue to follow the myriad of federal regulations reserved for federal contractors or subcontractors. Please note, however, that you should not destroy your most recent set of affirmative action plans nor the records associated with these affirmative action plans until OFCCP no longer has the right to conduct a review of this information. We have had seen situations where a company discontinued its federal contracting, and OFCCP indicated that the agency still had the right to review information for the time frame when the company was a federal contractor or subcontractor.
In regard to surveying applicants, you may continue to survey applicants for race, gender, and ethnicity. There is no prohibition against this kind of surveying, and if you are involved in an EEOC complaint, EEOC may demand demographic information of this type on your applicants.
You may also continue to survey applicants for veteran status so long as you do not survey specifically for disabled veteran status. (See below on this point.) However, you may want to determine whether there is any value in surveying for veteran status. If you are using this information to help employ veterans or for some other positive purpose, you may want to continue surveying for veteran status. Otherwise, I'm not sure there is a good reason to do this surveying.
The most important change you need to make involves individuals with disabilities. Federal contractors and subcontractors are required to survey pre-offer applicants for disability status. However, as a general rule, organizations that are NOT federal contractors or subcontractors are PROHIBITED from surveying pre-offer applicants for disability status. The ADA has not changed. It stills says that employers are to avoid surveying pre-offer applicants for disability status. Federal contractors and subcontractors basically have a special dispensation to do this surveying because it is required of them by law.
Note that the prohibition on surveying for disability status extends to surveying for disabled veteran status. Thus, a company that is not a not a federal contractor or subcontractor would potentially be allowed to ask applicants if they are protected veterans (a general class that includes disabled veterans), but would NOT be allowed to ask if applicants specifically fall into the category "disabled veteran."
I would strongly encourage you to work closely with your ATS vendor and recruiting team to deal with your decision to discontinue federal contracting. There are various things you will no longer be required to do along with a few things (such as surveying pre-offer applicants for disability status) that you will be prohibited from doing.
As a side note, I totally understand your company's decision to discontinue any federal contracting or subcontracting. The federal affirmative action regulations have become hugely burdensome in the last few years.
What are the requirement for new hire applications? If the application is online do we have to have it match a hard copy application?
It is advisable to have all new hires complete an employment application that has been reviewed by an attorney to make sure the application complies with the employment laws in your state.
Whether or not you have applicants complete a hard copy application after completing an online application, is more a matter of preference. If your company’s online application is a brief version of your hard-copy application, one thought might be to have all applicants that are interviewed in-person complete the hard-copy application. The most important thing is be consistent in your practice and if one applicant that is interviewed completes the hard-copy application, then all applicants interviewed should complete the hard-copy application.
Posting Affirmative Action Plan
What do the regulations say about posting your Affirmative Action Plan for all employees to view. Do you just have to post the AA Policy statement, or do you need to post the actual plan document?
The AAP has to be made available to employees upon request. In our experience, we have typically seen employers add it to the end of their anti-harassment policy stating something similar to:
“An individual who wishes to access the establishment’s affirmative action plan can do so at XX time (e.g. during regular business hours Monday through Saturday from 8 a.m. to 6 p.m.) and should contact this individual (e.g. Human Resource Director) to access the plan."
Just to clarify something Jacquelyn said, certain portions of the AAP for protected veterans and certain portions of the AAP for individuals with disabilities must be made available to applicants and employees upon request. There is NO requirement in the federal affirmative action regulations to make the Executive Order 11246 AAP (i.e. the AAP for minorities and females) available to applicants or employees, and we strongly discourage organizations from doing so. That AAP has a significant number of statistical reports and other items that might constitute trade secrets or other protected information that organizations should not be releasing to applicants and employees.
With the recent revisions to the regulations regarding veterans and the regulations regarding individuals with disabilities, there are now statistical reports that must be included in these AAPs. There is no requirement to provide these statistical reports to applicants or employees, and, again, we strongly discourage organizations from doing so.
You asked whether your AAP needs to be "posted." There is no circumstance under which it needs to be posted (unless you are part of a university or other governmental agency that is required to post the AAP under state or local law). The AAP for veterans and the AAP for individuals with disabilities must be MADE AVAILABLE upon request for review by an applicant or employee. There is no requirement for posting. You are not even required to allow the applicant or employee to copy the AAP, nor are you required to provide a copy that the applicant or employee can keep.
You SHOULD post the AA/EEO policy statement for applicants and employees to see. There are significant limitations on making AAPs themselves available, though.
Like most things in affirmative action law, this requirement can seem somewhat confusing. Hope this helps.
Outsourced Sourcing function and requirement for populating into req
We have partnered with an outsourced sourcing and recruiting firm. For the positions they are working on filling for us they may screen and speak with 45 candidates - however they only present 5 resumes to us that are qualified. What do we do with the 45 candidates that they spoke to? Are we required to include them on the req - or can they just go into a general pool of candidates in our ATS? Do we do anything different for the 5 qualified candidates they present?
Generally speaking, all of the candidates out of the 45 individuals who met the Internet applicant definition would be considered applicants and must be included for your impact ratio analysis.
As a result, the firm should have asked them for information regarding race, gender, disability and veteran status.
In addition, you are required to maintain records on all of the individuals considered, even if they do not the Internet applicant definition. As a result, you need to know the reason the candidates did not move forward so relevant disposition codes can be applied to each individual.
Whether this information is collected and maintained by the firm or you isn't a sticking point; rather, it simply needs to be completed. But also recall that ultimately, the contractor is responsible for ensuring its obligations are being fulfilled (not the third-party firm), so if the firm is handling this on your behalf, circle-back with them to ensure it's being completed per the regulations.
We are attempting to update our system with detailed disposition codes(rejection reason codes NOT tracking status codes) and are wondering if there is a government standard list mandated codes OR if there is a list of recommended codes elsewhere? I have found two different lists of codes on your website alone and am having a hard time developing a thorough list to reduce our risks.
I would suggest reading my article in the May issue of the OFCCP Digest titled Sorting out the Confusion of Applicant Tracking Codes. Also, you can contact me directly and I will send you a suggested list of code. There is no government standard list. It is important to develop codes that help you determine who is covered in the AAP and identifies and reasons why a candidate was rejected.
I am seeking recent statistics surrounding employment verification. What I am finding is that when doing employment verifications and/or reference checks employers are limiting what they provide to date of hire/date of termination and title or they use the Work Number or some similar service which only provides the same information. Has there been any recent surveys completed on the number of employers that no longer give out additional information or use services (ie: work number)?
Thanks for your assistance.
Companies often limit the information that they provide on their employees to what is documented in an employee’s personnel file, such as dates of employment and position. One reason for this practice is concerns about possible defamation lawsuits when subjective information has been provided.
Many employers have begun outsourcing their employment verifications to companies, such as The Work Number, that process calls about former employees because it is a safe and effective way to remove themselves from the equation and be sure that they are not providing inaccurate or subjective information. Additionally, many of the outsourcing companies offer online access to the employment information 24 hours a day, 7 days a week.