Should EO clause be added to all contracts?
As a "government contractor," per the OFCCP regulations, should the EO clause be added to all of our contracts, even if they aren't contracts with government agencies? I was informed that this is not applicable by our internal legal counsel. She said this only applies to contracts entered into with government entities and I want to validate this is correct so we are in compliance with OFCCP regs. Please advise if this is correct, or if we should be including the clause in all of our contracts.
It's difficult to provide an answer where you've already gotten input from you internal legal counsel. The manner in which the question was expressed to legal counsel may have caused you to get the specific answer you received. Thus, I'm going to address this issue in a more generic manner, and then you can discuss it again with your legal counsel if you wish.
As a general matter, if your organization has a direct contract with a federal agency, it's really the federal agency's responsibility to ensure that the various equal opportunity (EO) clauses found in the federal affirmative action regulations are included in the contract. If the federal agency fails to include these clauses, your organization still has the responsibilities associated with these clauses. In such a situation, the clauses are incorporated in your federal contract through what is know as "operation of law."
The more important question is really "Do we need to incorporate the EO clauses in all contracts with our subcontractors and vendors?" Here, it is your organization's responsibility to ensure that the clauses are included when applicable. You are allowed to incorporate the EO clauses into all contracts with your vendors and subcontractors, but you MUST incorporate the EO clauses into contracts with vendors and subcontractors who either (a) provide goods or services that are necessary to the completion of the government contract or (b) undertake any portion of the federal contract on behalf of your organization.
While the regulations under Executive Order 11246 give you some flexibility in how you handle the incorporation of its EO clause into contracts with your vendors or subcontractors, the revised regulations for protected veterans and the revised regulations for individuals with disabilities have prescribed language that must be used in contracts with vendors and subcontractors. You can find more information about the specific language to be used in OFCCP's FAQs on the revised veteran and disability regulations. (For the FAQs on the disability regulations, see http://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm#Q46. The veterans regulations have a parallel set of FAQs.)
Again, I don't know your organization's particular circumstances, so there may be some reason your legal counsel has provided you with the answer you received. I can simply tell you that federal contractors clearly have responsibilities for incorporating the EO clauses into contracts with certain vendors and subcontractors.
No Openings - Collecting Resumes?
We are in the construction business and at this time, the end of the construction season, we do not have any openings - however, we receive many phone calls of individuals being laid off looking for work. Is there an opportunity, even as a federal subcontractor, that we can list openings for Laborers, Carpenters, and Operators on our job postings to collect interested individuals, even if we do not have any active openings? I was thinking we could respond to each individual informing them at this time we do not have an opening available, however, when we begin hiring again next season, we will contact them if they meet the minimum qualifications? Is there a good way to handle this?
This question came up at a previous ILG meeting I attended in Chicago, and I'll share the answer that the Chicago OFCCP office shared with us who attended the meeting.
To summarize, OFCCP basically said that it depends. If you are reposting some positions that are seasonal, but not all, then you need to be consistent and post all of the jobs. You cannot cherry-pick what postings to advertise.
However, OFCCP cautioned that you also need to consider your demographic data at the time of hire. In other words, it needs to be representative of the best and most qualified candidates in the market – at the time of hire.
And just to toss in another idea, if you hire an EE from seasonal to FT, then you need to follow the traditional hiring process your organization follows for consistency purposes.
How often should employers conduct self-audits?
First off, it is important to say that self-audits should be conducted under attorney-client privilege.
Attorney-client privilege protects certain communication between a client and his/her attorney (e.g. self-audit information) and prevents the attorney from sharing that information (i.e. to OFCCP).
Self-audits should be conducted periodically to ensure the employer is on the right track. Consider including hiring managers in the process so they know if your affirmative action plan (AAP) is effective and where opportunities for improvement need to be made.
Larger organizations may do self-audits every six months or even every quarter. Smaller companies may only do a self-audit once each year.
It really depends on the needs of the employer, but again, the goal of a self-audit is to determine if your organization is on the right track regarding its AAP. As a result, more or less self-audits may need to be conducted to ensure the plan is moving in the right direction.
Compensation - Pay Transparency
Since compensation is such an important part should the person that handles compensation have any type of training?
You do not need to train all employees regarding the final rule about pay transparency (Executive Order 13665). However, you may want to provide training about the final rule to the employees who have access to pay information due to their job duties.
For example, employees responsible for handling payroll information/documents (e.g. running commissions, printing and stuffing pay envelops, shredding, etc.) may need guidance/direction from your organization about the final rule; specifically, that any pay information gathered in the performance of his or her job may not be disclosed under the Executive Order.
Consider meeting with your managers from the various departments within your organization and have them report to you on who has access to pay information and consider providing training/guidance to that particular group.
This might be the Sales Manager who runs commission statements; it might be the IT manager who determines and distributes bonuses; it might be the HR recruiter who prepares offer letters; etc. Take some time to consider who the final rule might impact and provide them with direction to mitigate the likelihood of adverse impact.
Pre qualifying questions
We have a number of applicants that apply for our line operation positions, and when I conduct phone screens with the applicants I am finding that they we either terminated for some reason, or have been asked to leave a position. So on our pre-qualifying questions for all positions posted can we legally ask the question "Have you been terminated or ask to leave a position in the past 2 years". If yes what was the reason?
It would be acceptable to ask whether an individual was terminated or asked to leave a position in the past two years, and it would be acceptable to ask for the reason. The only problem I can see here would be the very rare situation where someone was terminated for a reason like filing a discrimination complaint or failing to return from a medical/maternity/military leave. This situations should be handled very carefully.
One other question you might want to consider: how will you handle situations where an individual was terminated as part of a reduction in the workforce?
Dispositioning based on relo, salary requirements
By policy, we do not post salary ranges for our positions. Often applicants supply their desired compensation. If their stated salary requirement is above our range, is this a legitimate reason for removing the applicant, or do we need to contact them first?
Another disposition question: We posted a position without specifying relocation. We had applicants from all over the country, with a good selection of locally-based applicants. We only looked at those who lived within commuting distance. Is "no relocation" an allowed reason for removing an applicant from the process?
It is perfectly fine to remove applicants based on salary requirements and/or location, however, this criteria must be applied uniformly. For example, it would not be appropriate to follow-up with some of the applicants to see whether they would be willing to adjust their salary request, but not others. Likewise, you couldn't remove a subset of applicants based on location.