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OFCCP: Ask the Experts
OFCCP Ask the Experts
Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question.
Last year was the first year we were required to develop an AAP and the dates we published were Jan 1, 2017 - Dec 31, 2017. It is my understanding that the analysis of data should be based on a snapshot of a specific date. Does that date have to fall within that year? Or is it the last day of the year and if it's the last day of 12/31/17, what date am I required to publish the 2018 AAP with the data analysis?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Nov 20, 2017
The Hires, Applicants, Promotions, and Terminations should be dated beginning (and including) the full year. In your case January 1, 2017 through December 31, 2017. The employee snapshot should be dated December 31, 2017. Best practice in this case is to prepare the plan as soon as reasonably possible after the first of the year. The regulations state that the AAPs must be updated annually. If audited, the company will be required to submit the plan and accompanying data within 30 days, so the plan should be in place before thirty days, of course.
Asked by Anonymous - Nov 20, 2017
I would like to know if an employer has any control over releasing information (name and contact information) for management employees no longer with the company. Also, can the employer ask for a copy of the interview note(s), or have a company representative present during the interview?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Nov 20, 2017
This is a very good question and a very difficult area to navigate successfully. According to the regulations:
Sec. 60-1.20 Compliance evaluations. (ii) An on-site review, conducted at the contractor's establishment to investigate unresolved problem areas identified in the AAP and supporting documentation during the desk audit, to verify that the contractor has implemented the AAP and has complied with those regulatory obligations not required to be included in the AAP, and to examine potential instances or issues of discrimination. An on-site review normally will involve an examination of the contractor's personnel and employment policies, inspection and copying of documents related to employment actions, and interviews with employees, supervisors, managers, hiring officials..."
The regulations do not limit the OFCCP's authority to contact former employees or management, and in my experience, both when I was with the agency and since, they frequently do. The employer can ask for a copy of the interview questions, but I do not expect the agency would turn them over to anyone outside of the OFCCP. It is almost always best practice to have a representative present in any and all management interviews.
Asked by Anonymous - Nov 18, 2017
I would like to know if the OFCCP CO can request an employee (representing management) to come to their office for an interview? Do they have this authority?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Nov 18, 2017
The OFCCP can make this request. There is nothing in the regulations that prohibits such a request. It is important to understand what the regulations require so that a contractor can draw a clear line between its obligations and what is simply a request. The regulations at Sec. 60-1.20 Compliance evaluations (ii) state that an on-site review is "conducted at the contractor's establishment" and "will involve an examination of the contractor's personnel and employment policies, inspection and copying of documents related to employment actions, and interviews with employees." A company can refuse this request. However, one must consider that such refusal could bring a full onsite visit by the agency. Since compliance officers are already there for one employee, they will often go ahead with additional inspection or interviews.
Off the street applicants at a unionized project site
Asked by Becka S. - Nov 16, 2017
We have a construction project site that has project labor agreements, with various unions, for our construction craft labor needs. Based on the project size we do fall under VEVRAA & Sec. 503, however our PLA requires we staff through the union hiring halls. My question is this;
If a person walks in off the street and wants to apply for a craft job at the project site can we explain we staff through union hiring halls and provide them information on how they can contact these unions? Also, should we provide these "walk in's" with "An Invitation to Self-identify" form and track their info on an "Off the Street" applicant log?
The regulations require the construction contractor to "maintain a current file of the names, addresses and telephone numbers of each minority and female off-the-street applicant and minority and female referral from a union, a recruitment source or community orgnaization and of what action was taken with respect to each individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with any additional actions the Contractor may have taken." 41 CFR 60-4.3(7)(c).
I interpret this regulation to permit you to refer this person, who walks in off the street, to the applicable union, but you still have an obligation to keep your own records of who you referred over to the union. Having an "off the street" applicant log that collects address and phone number, too, would meet the requirement to "maintain a current file of the name, address and telephone number." I would encourage you to maintain the log for men and nonminorities, too. Finally, the construction regulations were written (and not updated) since before the disability self-id requirements came into effect. I would encourage you to solicit race, gender, veteran status and disability status of these applicants, where possible. As you appear to note, the disability form is the official OMB-sanctioned form, CC-305, "An Invitation to Self-Identify."
Disability Self Identify Forms
Asked by Lauren Z. - Oct 25, 2017
Hello, We are in the process of re-surveying our employees and using the Self Identify form as required. However, because the form is two pages, we are getting forms back with only page one and NOT page two. Most likely because they self identify with not having a disability so no request for an accommodation was made. Is this acceptable to only have page one on file? Or should we go back and require each person submit page two? I ask because the form is voluntary, we can prove that they were given both pages, and that they then choose to only provide page one. Please advise. Thank you!
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 25, 2017
You're right, the form is voluntary, but in the event of an audit, it may be difficult to show compliance if many of the forms are incomplete. Where possible, the best practice is to obtain the second page to ensure the company can show evidence of that it is fulfilling its obligations. Good question!
Talent Networks Poster Link Requirements
Asked by Anonymous - Oct 04, 2017
We have 2 Talent Network Portals-one dedicated to general interest and the other for the Contract Community. That said, we recently added the Employee Polygraph Protection Act and Dept of Labor FMLA poster to our General Talent Community, however, those individuals may or may not be considered internet applicants, since they may or may not apply to an actual position within our career site. We do actually include those 2 poster links and the EEO is the Law, Supplement, and Policy Statement in a link at the bottom of the career page. My first question, is should we leave all poster links in the general Talent Network portal, given that many may or may not ever become applicants. My second question is, that I haven't added the Employee Polygraph or the FMLA poster links to the Contractor Talent Network Portal and am concerned that it too would cause some issues, 1) that they are not necessarily applicants at that point and 2) the Co-employment optics of it. Are there best practices on posters within the Talent Network portals? 2) Should I go ahead and remove all poster links in BOTH Talent Network Portals? 3) Do I have all poster links outside of our EEO policy included in BOTH Talent Portals? I haven't seen any other Federal Contractors include these poster links within their Talent Networks/Talent Communities, but wanted to get some guidance on how best I should proceed with this. Again, I want to ensure that I'm in compliance, but at the same time not putting us at risk by confusing the "applicant" component as well as the "contractor" component.
Federal contractors are required to include in “all solicitations or advertisements for employment that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity or national origin.” This is more commonly known as the EEO tagline and you can satisfy this requirement by including the tagline in your job postings.
Federal contractors are also required to post the “EEO is the Law” poster and supplement in a prominent place “where it can be readily seen by employees and applicants for employment.” For electronic applications, OFCCP’s FAQs state that: “If the contractor uses an electronic application process, it must post an electronic notice to inform job applicants of their EEO rights. Electronic notices for applicants must be conspicuously stored with, or as part of, the electronic application. In addition, in individual instances, a contractor may have to provide a notice of EEO rights electronically as a form of reasonable accommodation for a disabled employee, even if the employee works at the contractor’s physical location.”
You will need to comply with the above requirements, whether job seekers visiting your talent portal become applicants or not.
The other posters you referenced such as the Employee Polygraph Protection Act and FMLA posters are mandatory notices that employers are required to provide to their employees. You have no obligation to provide these notices to applicants. So, you may want to only make visible to applicants those that you are required to provide to applicants.
As far as the Contractor Talent Network is concerned, I assume you are talking about 1099 independent contractors, where you have no employer-employee relationship. Since they are not going to be employees of your company, your obligation to provide these notices to employees and applicants to your payroll positions, would not apply. In fact, posting these notices might just cause confusion, granting employee rights that they do not have. Just make sure that you have classified these positions correctly as independent contractors.
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.