OFCCP Ask the Experts
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  • Listing vs. Posting
    Asked by Anonymous - Nov 11, 2015
    I attended a legal update on Affirmative Action and the speaker made a distinction between “listing” and "posting" jobs with the local job service. They said the requirement is to list jobs. I was wondering what is the actual distinction and does LJN meet the “listing” requirements?
    Answered by Jacquelyn Peterson from Local JobNetwork™ - Nov 11, 2015
    Excellent question! The purpose of VEVRAA is to give priority referral to protected veterans regarding job vacancies. We – like yourself – wanted to know exactly what this meant. So, we read the regulation and called every state workforce agency job bank (SJB) and/or local employment service delivery system (ESDS) in the country to find out how they actually go about helping fulfill VEVRAA (per the regulation), and below is how it actually happens.

    The majority of the states use postings on their state site to provide preferred veteran access because directing veterans to search and apply for jobs online is a primary step in helping veterans find jobs (it’s part of the SJB/ESDS onboarding process). This is also important because many SJB/ESDS put a “hold” on the jobs for 24-72 hours so veterans can access the jobs before the general public (i.e. veteran priority referral).

    To give you an idea, the SJB/ESDS on-site staff monitor the posted jobs of federal contractors and when new positions are posted, they review the positions and then match them to the skills/qualifications of the veterans with whom they are working. They then reach out to those veterans and make them aware of the appropriate jobs. For those states that do not have on-site staff working directly with veterans, they expect the veterans to search the jobs themselves to find positions that meet their qualifications. In these situations, the veterans can only search jobs that have actually been posted to the SJB/ESDS. For what it’s worth, when we specifically asked about “listing” it meant nothing to them. They reconfirmed that if a federal contractor wants to give veterans preferred access to jobs, the contractor needs to post their positions on the SJB/ESDS.

    For the handful of states that do not put a hold on the jobs (as stated above), sending the jobs to the LVERs/DVOPs helps satisfy the VEVRAA requirement of giving priority referral to protected veterans so they can access the job vacancies first, but unfortunately only a handful of the SJB/ESDS use this process.

    This is a significant distinction because at the end of the day the purpose of VEVRAA is to help veterans find jobs and to help federal contractors hire veterans who are the right fit for the jobs especially considering the 7% hiring benchmark goal the federal contractors are trying to achieve. Federal contractors cannot achieve this goal if their jobs are not posted onto the state sites because the process the SJB/ESDS are primarily using is directing veterans to search and apply for jobs online as a primary step in helping veterans find jobs.

    I was at the same AA Briefing that I believe you are mentioning, and it was disappointing to hear because that statement is misleading to many federal contractors who rely on these types of conferences to receive their information. The approach they mentioned is focused on simply “checking a box.”

    In contrast, LocalJobNetwork.com first studies the laws and second, conducts research to determine how the laws are actually coming to fruition. From there, we educate based on what’s actually happening on the frontline, and we build our products, services, and resources with that in mind. This is important to us because we don’t want our customers simply “checking a box.” Rather, we want them to follow the law as well as fulfill the intention of the law, which is ultimately to hire veterans.

    And just to clarify, yes, we are fulfilling the “listing” requirement because we post jobs on the SJB/ESDS as well as email jobs to LVERs/DVOPS on behalf of the federal contractors. So, we have all bases covered!

  • Retaining Interview Notes
    Asked by Samantha L. - Nov 10, 2015
    What exactly are we obligated to keep in terms of interview notes- every single note/comment; all notes from each interview, by each interviewer or high level points that justify the hiring decision; why a candidate was/was not hired?

    Also, are managers required to ask consistent questions of each candidate for each specific position?
    Answered by Jacquelyn Peterson from Local JobNetwork™ - Nov 12, 2015
    To access the record retention details, you can read the details here.

    In summary, any personnel or employment record made or kept by the contractor will preserve it for a period of no less than two years from the date of making the record or the personnel action involved, whichever occurs later.

    However, if the contractor has less than 150 employees or does not have a government contract of at least $150K, the minimum record retention period is one year from the date of the making the record or the personnel action involved, whichever occurs later.

    “Such records include, but are not necessarily limited to hiring, assignment, promotion . . . resumes of job seekers who met the basic qualifications for the particular position who are considered by the contractor), regardless of whether the individual qualifies as an Internet Applicant under 41 CFR 60-1.3, tests and test results, and interview notes."

    Today's most common violations occur with recordkeeping practices, and because the regulation doesn't give detailed information about interview notes, it is important that training be provided to individuals who are conducting interviews for consistency as notes can be used later in legal matters.

    Generally speaking, the interviewer will take notes on each interviewee, but it needs to occur on a separate piece of paper - not on the resume or job application! Though it may seem obvious, notes should not indicate an interviewee’s gender, age, race, national origin, disability, etc. as it can be interpreted as discriminatory. Thus, the notes need to be objective in nature and based on the facts of the job.

  • Minimum Days To Post Job
    Asked by Anonymous - Nov 10, 2015
    Is there a required number of days a position must be publicly posted? If this is state regulated, do you know the regulation for UT? I'm unable to find this in my online searching. Thank you.
    Answered by Jacquelyn Peterson from Local JobNetwork™ - Nov 11, 2015
    I believe you are referring to listing on the state job bank/employment service delivery system for VEVRAA requirements?

    If so, the job needs to be listed at least concurrently with the use of any other recruitment source. In other words, if the job is on your website for 30 days than it needs to be on the ESDS website for 30 days.

    If you take the posting down from your website and then repost it later, then you must also do the same on the ESDS. Basically, the activities mirror each other.

    In regards to Utah, if the posting exceeds 30 days, the ESDS usually automatically expires the jobs, so it's your responsibility to go back and relist it if the job is still on your website.

  • Re-Posting The Same Job
    Asked by Anonymous - Nov 02, 2015
    I recently closed a job posting and now the person that I hired has backed out. What is the best way to post the position again - a new requisition or would it be best to open the recently closed requisition?

    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Nov 02, 2015
    The answer depends on what you are trying to achieve. If you want to reconsider some of the candidates in the earlier requisition, there is no need to "re-open" the previous requisition, as you could simply hire someone from the requisition and note the candidate who backed out as a "declined offer." If you do not want to reconsider the candidates in the previous listing, it is probably in your best interest to re-post the position with a new requisition. If time is of the essence, you can re-open the previous requisition and review new candidates.

    Your impact ratio analyses will be impacted by the option you select. If you hire someone from the earlier requisition (whether it is re-opened or not), your applicant pool for that position will be the one from which both candidates (the non-starter and the resulting hire) were selected. If, however, you re-post the position with a new requisition (and do not hire anyone from the previous requisition), you can exclude all candidates on the previous requisition, as there was no "successful" hire. Instead, you would only include the candidates on the requisition from which the resulting hire (who does not back out) is selected. Please note that you would only include candidates who meet the definition of an internet candidate in the impact ratio analysis.

  • CDL/Driver's License #
    Asked by Anonymous - Oct 30, 2015

    We have set up a questionnaire and an option for people to submit a resume for consideration through Milwaukeejobs. Are we able to ask for their Driver's License # during that process for three distinct positions that require a CDL? Would we able to use this process for these three positions and all others that do not require a CDL have them submit a resume on the backend of the process, or is that considered illegal?

    Or should we set up a full blown application on MilwaukeeJobs that includes all the legal statements and Fair Credit Reporting Act? If so, would you be able to provide the appropriate statements we need to list on the online application including how we should request that information from the candidates?

    Thank you,
    Answered by Jacquelyn Peterson from Local JobNetwork™ - Nov 11, 2015
    An employer can ask about a driver’s license if driving is an essential part of the job. Applications for these jobs may include a statement about the need for successful candidates to prove they have a valid driver's license. The statement could say something like:

    • I understand that if this position requires a valid driver’s license, proof will be required after hire, or
    • Some positions require the successful candidate to have a valid driver's license. The successful candidate would have to provide proof that s/he has a valid driver's license when offered employment.

    It is permissible to ask for an applicant's driver's license number in order to facilitate a job-related background check. However, a company should consider obtaining such information as late in the application process as possible, in order to minimize the amount of confidential information it obtains.

  • Compliance and Job Descriptions and Postings
    Asked by Anonymous - Oct 29, 2015
    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?
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Oct 29, 2015
    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.

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.