Compliance and Job Descriptions and Postings
I have a question and am hoping that you can assist me with this. I have always been told that the job description qualifications has to be the same information that is posted to outside sources. In my previous experience we just copied and pasted the whole job description to all of our external sites. However the process we use here at CBC is different where they have created a separate word document with just the basics listed. What I have found is that the word document qualifications have been updated in the past but the actual job description has not. An example would be that the job description asks for 1-3 years of experience doing something but someone has changed the posting document to 2-5 years doing that something or the job description doesn’t state that a bachelor’s degree is required but our posting does require the degree. I think that this makes us non-compliant but am not sure where it states that what you post has to be the same as what your job description says. Can you tell me where that is (OFCCP?, etc.).
Also should preferred qualifications be left out of job descriptions?
You raise several interesting issues here.
1. Preferred qualifications. You can leave them out of job descriptions, and even out of job postings, but they should be documented before they are used to screen out applicants.
2. Job descriptions matching posting. These two should be consistent, but I don't recall there being a requirement that it be so. The issue really comes down to which is the accurate minimum qualification. If you post a minimum qualification that isn't really required for the position, you could be screening out qualified applicants. OFCCP takes the position that if you require a bachelor's degree, it must be needed to fulfill the essential functions of the position; otherwise, leave it out. So, having the requirement in the posting is problematic precisely because the job description doesn't say that it is needed.
When determining whether a qualification is a "real" qualification for a given position, OFCCP will consider the people who are currently employed in the position, and the qualifications they have. So, if you are requiring a degree for a position, but you have employees in that position who do not have a degree, you have some potential exposure.
The regulations require a regular review of all position descriptions, so take the time to conduct a comprehensive analysis, and then document, document, document.
Corporate office with several legal entities
We have our Minnesota state workforce center account set up under our corporate office's FEIN, but we have several of entities in Minnesota with different FEINs. Is it "ok" to lump them all under the corporate account for cross-posting, or do we have to have each FEIN under their own account?
This decision needs to be made within your company, after consulting with your legal department. If you decide to register under one FEIN, we can attempt to register all of your ESDS accounts under that FEIN. However, this can potentially cause problems when SUINs and FEINs do not match, and may result in rejected ESDS account registrations. Ideally, each of your company’s entities would be registered separately.
Evergreen jobs and moving to an ATS
When it comes to general labor jobs in processing plants, there is very high turnover. These are jobs that require no skill, no English, nothing other than being 18 years of age and legally eligible to work in the US. If we need eleven people, it could easily be the first eleven people that complete an application that get hired that week. The rest we hope come back the following week, we don’t want to lose them as potential hires since the posting will come down as soon as the eleven positions are filled, but we will likely have more openings a few days later. We are now moving on an online applicant tracking system which count down the number of openings we have and the posting will come down once the openings are filled. Historically the job would just stay out there as an evergreen job.
The question is: what is the minimum amount of time a job can be posted without causing risk to the company from an outreach perspective? If we post a job and we accept the first candidates the post for the job because it literally requires no skills, what does this do to us from an affirmative action/outreach perspective now that this is all automated? Does this negatively impact us in any way?
Your question is quite complex as there are many variables to consider when answering it.
Even so, you should reference this article
in The OFCCP Digest as it will help clear-up many of your questions.
Importance of Staying Compliant
Our company is working on making sure we are completely OFCCP compliant. If our hiring managers are aware of the rules and regulations but continue to make multiple infractions, does this call for disbarment? Can you provide us with information that we may share with hiring managers in our company so they know the importance of following ALL OFCCP compliance regulations.
To help paint a high-level picture, below are the compliance review steps (i.e. audit) to gain a general idea of how debarment may occur:
First, is a desk audit, which is where the compliance officer reviews the contractor's affirmative action plan and statistical data to evaluate the contractor’s employment activity. During this stage, OFCCP may identify one or more focus areas for further follow-up during the desk audit or for step two, which is the onsite audit.
During an onsite audit, OFCCP may require the contractor to explain compensation discrepancies, for example, let’s say it's for females or a lower hiring rate for minority applicants than non-minority applicants.
The third step may involve the contractor providing additional documentation for OFCCP to review off-site.
The fourth step is the administrative closure (if all goes well), but if not, then a resolution process begins...
If federal contractors and subcontractors are found in violation of the regulations, OFCCP may attempt to obtain Conciliation Agreements from the contractors to remedy the violations. Other forms of relief to victims of discrimination may also be available, for example, back pay for lost wages.
As part of the Conciliation Agreement, contractors may be required to enter into Linkage Agreements with specific outreach organizations to help the contractor identify and recruit qualified workers. The Conciliation Agreement typically includes monitoring the contractor’s progress through periodic compliance reports with OFCCP.
Contractors can dispute the appropriateness of the proposed Conciliation Agreement with OFCCP, and if the contractor and OFCCP cannot reach an agreement, then OFCCP can recommend an enforcement action to be brought by the Solicitor of Labor, which gives the contractor another opportunity to defend its position.
If the contractor refuses to comply with the final resolution of the enforcement action, the ultimate sanction for violations is debarment, which of course is the loss of a company's federal contracts. Generally speaking, debarments are in the minority.
Nonetheless, OFCCP continues revising regulations and proposing executive orders to help mitigate discrimination and to equip itself with the necessary data to direct its enforcement resources to entities where data suggests potential violations. Thus, being proactive - as you stated - is the strongest defense.
With all of the changes that have been made, can you provide me the suggested or required language to have for our company's EEO Clause? We are a Federal Subcontractor.
I assume you're referring to the recent pay transparency updates. Click on the link to access the Equal Opportunity Clause
offered by OFCCP.
Are we a federal contractor?
I looked up my organization on USA Spending and it doesn't say that we have contracts or grants, but it DOES say that we receive "Direct Payments."
What are "direct payments?"
Does that mean we are a federal contractor?
We are a university and received it from the Dept. of Education. Any insight is appreciated.
A federal contractor is an organization who holds a contract directly from the federal government for the purchase, sale, or use of goods or services. State universities that receive federal contracts are covered.
According to USASpending.gov, a direct payment is "a cash payment made by the federal government to individuals, private firms, and other private institutions."
You should speak with counsel about your particular situation to determine what, if any, your organization is obligated to.