OFCCP Ask the Experts
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  • Is it ok to use GPA as a qualifier?
    Asked by Anonymous - Mar 03, 2016
    Good afternoon,

    Is it ok to use GPA as a qualifier? I am working on multiple accounting searches in which the hiring manager insists on knowing the GPA. Assuming other skill set needs are met, the higher the GPA, the more they like the candidate.

    Thank you.

    Answered by Roselle Rogers from Local JobNetwork™ - Mar 08, 2016
    Generally speaking, it is acceptable to use GPA as a legitimate qualification. It can be used as a minimum qualifier for a position or to distinguish a more suitable candidate from a group of similarly qualified candidates. However, the two key things for employers to remember here, as with any hiring or employment practice, are: 1) applying it consistently; and 2) being able to prove that it is job-related. As an employer, you need to make sure that the qualifications you are using do not unduly result in an adverse impact on any particular group of applicants. One argument that has been put forward before is that using GPA in employee selection may be potentially causing an adverse impact on applicants with disabilities, minority applicants, and applicants over age 40. Employers are free to use testing and selection tools and methods; but they need to evaluate these to make sure that none of these practices cause adverse impact in hiring, whether intentionally or not.

  • Process of Converting Temporary Workers to Employees and Requirements of Sub Contractors
    Asked by Anonymous - Feb 29, 2016
    I'm looking for some clarification as to what the OFCCP considers a compliant process in hiring contingent workers on to be employees. In the past (and I'm sure that we are not the only ones that have done this), when we have an entry level opening that a contingent worker has been successfully filling, we hire that person. Are we required to externally post this type of role and conduct a search? What are our requirements if we only externally post the role for a few days - are we required to post it to the state job bank as well? Please help us to understand a compliant hiring process for temporary workers to become employees.

    Additionally, we are looking to understand what exactly our temporary worker suppliers should be executing when they are hiring temporary workers as employees to be placed with us. In other words, it would be so great to have an easy-to-understand checklist for all of the things the sub-contractors should be doing to ensure that they have a compliant hiring process.

    Thank you for your help!
    Answered by Roselle Rogers from Local JobNetwork™ - Mar 02, 2016
    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;
    • record-keeping;
    • 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.

  • Online Job Description
    Asked by Anonymous - Feb 25, 2016
    When posting jobs I want to assure I am abiding by the OFCCP's regulations. Is there a specific format that should be followed? What am I required to share with on a Job Posting and what is optional?

    Please share any tips.
    Answered by Amy Wozniak from Local JobNetwork™ - Feb 26, 2016
    The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) requires covered federal government contractors and subcontractors to take affirmative action to employ and advance in employment specified categories of protected veterans. These regulations also contain mandatory job listing requirements that federal contractors must abide by. VEVRAA states that in order to satisfy the listing requirement described herein, contractors must provide information about the job vacancy in any manner and format permitted by the appropriate employment service delivery system. Because each state has its own employment service delivery system, it is advisable to contact the employment service delivery system in the state where you wish to post your positions to ensure you have met all of their requirements.

  • 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.

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.