OFCCP Ask the Experts
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  • 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.

  • Outreach & Apprentice Program
    Asked by Anonymous - Jan 28, 2016
    We would like to start an Apprentice program to help fill our needs for the very difficult to fill security system technician position. I have the basic outline of what we need (qualifications, program outline, union requirements). We’d like to partner with a veteran agency and a state workforce agency to find qualified candidates who would interview for the one of 3 positions we’d like to fill this year. Aside from looking at the list on the LocalJobs site and randomly reaching out to a contact, do you have an idea of how we could develop this program? I’d anticipate that we’d be looking for 2-3 Apprentices each year. We currently have identified one candidate, a disabled military veteran, that we believe would be a great fit. I want to find more great candidates and get this unique career opportunity in front of others.
    Answered by Jacquelyn Peterson from Local JobNetwork™ - Feb 02, 2016
    Congrats for starting an apprenticeship program. Not having started one myself, your question interested me so I did a few Google searches and found these resources that perhaps you can pull from.

    Office of Disability Employment Policy has an apprentice outline:
    ODEP's outline

    Department of Labor has an FAQ section about apprenticeship programs:
    DOL's FAQs

    I'm uncertain of where you are located, but "technical colleges" are a great resource to recruit from. I included one from MATC. If this is not in your location, perhaps you can still connect with the coordinator for tips.
    Local technical college

  • Candidates move to an as yet undefined position
    Asked by Anonymous - Jan 28, 2016
    We have a candidate that has applied for one position with us. Based on the interviews we think he is a good fit for our compay, but we do not have a specific opportunity facing us (another candidate was better suited to the position he originally applied for). As the interviews progress we may create an opportunity that will fit his skill set. If we were to move forward and hire him, what is the best way for us to account for that (from a tracking/compliance perspective). This situation presents itself occasionally here at our organization and now seems like a good time to try to do it the “right way”, at least as it relates to being a federal contractor.
    Answered by Jacquelyn Peterson from Local JobNetwork™ - Feb 02, 2016
    I believe the underlying concern that you are raising is the potential for the 1:1 hiring ratio, which isn’t necessarily wrong; however, it depends on its reasons. Below are – general ideas – of what is typically non-defensible and defensible regarding the 1:1 hiring ratio.

    1) Did not follow the affirmative action plan as it was outlined by conducting positive recruitment and outreach
    2) Did not keep records of applicants that applied

    1) Not all jobs must be listed with the employment service delivery systems (ESDS) as there are some exclusions (e.g. internal positions, positions lasting 3 days or less, and management/executive positions)
    2) The internet applicant definition was not met by individuals
    3) A temporary employee transitions to a permanent employee; thus, the job was not posted onto the ESDS so there is no other potential selection pool
    4) Layoff recalls for union workers

    Hopefully this helps guide you in the right direction as you move forward with your great hire! Good luck.

    Answered by Bill Osterndorf from HR Analytical Services - Feb 10, 2016
    So, let me approach this from a slightly different perspective. What it appears you're doing is taking a candidate from one applicant pool and you are choosing to port that candidate to another applicant pool. It further appears you're going to have an applicant pool of one for this second position.

    There are many many problems with this kind of situation. What you're doing is basically cherry-picking a candidate from one pool and giving no consideration to anyone else who might be qualified. This has three different sets of issues:

    1. There was no outreach done to find other candidates who might be just as viable for the second position as the candidate you have chosen. With OFCCP's current (excessive) focus on outreach, the agency would question why there were no recruitment efforts.
    2. There are a number of technical requirements that are not being followed in your decision to hire your chosen candidate. For example, as Jacquelyn suggests, there would be no listing of the position with the local state employment service (i.e. the local Employment Service Delivery System).
    3. There is a serious question as to who is in the applicant pool for this position. While you want to pluck one candidate from an original pool for this second position, OFCCP could appropriately argue that ALL candidates from the first pool are potential candidates for the second position, and must be dispositioned accordingly. Since you have created an opportunity for your chosen candidate, it may be hard to demonstrate that there were clearly defined minimum and preferred qualifications for this second job. If there were other candidates in the initial pool who had qualifications similar to your chosen candidate, OFCCP would potentially look at the demographics of persons in the original pool to determine if there is some kind of adverse treatment of candidates based on race, gender, or some other protected classification.

    In essence, what you have in this situation is a process breakdown. 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.

    I realize this extends the time frame for hiring your chosen candidate. However, it's not impossible that you will find a better candidate by opening this position to other individuals. Just as important, you will limit the kind of problems that may present themselves during an OFCCP compliance review.

    If you decide not to open a new position, then you would probably need to consider all candidates from the original pool as candidates for the new position, and you would need to disposition accordingly.

    If it turns out that you had intended to open a second position to other candidates where your chosen candidate would simply be one among several candidates, then the most critical thing to do is to ensure that you encourage your favored candidate to express interest in the position rather than add that candidate to the pool yourselves. Letting HR move candidates between positions causes various record-keeping and substantive problems. It's best to require that persons who want to be considered for an open position must actually apply for that position.

  • Webinar Followup New for 2016
    Asked by Terry S. - Jan 27, 2016
    What type of language is required on the form used to conduct the 5 year re-survey of employees to identify disabilities that have occurred since their last self identification. Should there be an area that will allow employee to choose to "not reply" to the survey?
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Jan 27, 2016
    Terry - For the fifth year re-survey, you must use the OFCCP mandated form again and send it to all employees. For years in-between one and five, all you have to do is inform employees (via letter, email, etc.) that if their status as an individual with a disability has changed, they should inform you.

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.