OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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.
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  • Must an applicant apply to all 5 positions if they are exactly the same?
    Asked by Trisha J. - Jul 17, 2017
    If multiple positions are posted, all the same job, same days worked and same shift, for example we need 5 people to work Monday - Friday 9am-5pm to file. All 5 positions are exactly the same. If an applicant applies to one, can they be assigned to all? It is our understanding under OFCCP we must list all available positions but not all applicants attach their application to all as they believe they have applied it. If we get 10 applicants to the one posting, can they all be attached to all 5 of the same positions?
    Answered by Bill Osterndorf from HR Analytical Services - Jul 18, 2017
    It doesn't actually make sense to produce five separate postings if you expect to hire individuals for the exact same job where the individuals will start on the same date (or approximately the same date), work the same shift, and so on. Candidates will be confused by this kind of posting, and you will potentially have issues as to who should be considered for an opening if a viable candidate applies to only one of the five openings.

    Further, any statistical analyses of applicant and hire data may be problematic. If you truly have five of the exact same openings with the exact same start date, the collective pool of candidates should be compared to each to determine whether outreach activities were successful and whether there were any selection disparities. By posting five separate openings, you may have candidates applying to only one or two of the openings while they are effectively considered for all five openings.

    The formal required in the protected veterans regulations (which is where there is the most explicit required to list open positions) is to "list all employment openings." Positions must be listed with the local state employment service office (i.e. the Employment Service Delivery System office) in "any manner and format permitted" by that office that will allow for priority referral of veterans. (See 41 CFR 60-300.5.) Note that the requirement to list open positions does not say that federal contractors and subcontractors must "separately list all employment openings" or "individually list all employment openings." Thus, listing five positions together where the substantive requirements for the job are the same and the start date is the same seems to be acceptable under the federal affirmative action regulations (so long as the local state employment service office allows that kind of listing).

    If you have five of the exact same positions with the same (or at least a very close) starting date, it makes sense to list the position once, note there are five openings on the listing, collect information on candidates, and then evaluate the candidates against each other. Ultimately, you will be looking for the effective of outreach efforts on this entire pool and you will be looking for whether there were disparities involving all persons hired vs all candidates.

    PLEASE NOTE that this is NOT an encouragement to list dissimilar positions together. It is very important to list different types positions separately. Dissimilar positions should not be listed together because of the importance of analyzing job qualifications against candidates expressing interest in open positions. If you list five openings for "production" or "office" positions, and then try to evaluate candidates against each other, there will be many questions about who was qualified and appropriately selected for the different kinds of jobs that may constitute "production" or "office" positions.

    Please also note that if you are listing multiple positions, but these positions will have staggered start dates, you may want to list these positions separately. If there are staggered start dates where, for example, one new employee starts in June and another starts in October, there may be different pools of viable candidates for these jobs because persons who express consider for the June positions may no longer be interested in the October positions.

     
  • What is a good strategy to reduce time of position not filled with extensive background checks
    Asked by Anonymous - Jul 17, 2017
    How many people can be selected and offered a position based on successfully completing the next phase of the hiring process? Many of our positions must go through a long background check (6-12 months) and then at times people do not make it through that part of the process. If we have for example a position can we select 3 candidates from that one posting and offer the job based on successfully completing the background review? The first candidate that is successful begins in that position. As the others clear they are offered the same job but possibly a different shift time. Is this compliant? Do the other candidates have to formally apply to the other shifts or are they considered internal transfers?
    To wait for one person who falls out in month 8 of the background check to start again creates a tremendous deficiency in people actually staffing open positions.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jul 22, 2017
    Nothing in the OFCCP regulations limits the amount of offers that a company may make. Of course ensuring the potential outcomes for offers is prudent under other laws and regulations. Careful record keeping and proper dispositioning of the applicants, offers and any changes to the offer would be very helpful should your company be audited. While the process appears facially neutral, it is a good idea to take a look to ensure no particular group is impacted by any changes to the offers. (I don't see anything in your question that would indicate any issues, but not knowing anything more about your process, it is worth mentioning as I expect the OFCCP could take a look at impact in an audit.) It is important to make the regulations fit with your business practices and from the facts in your question, the practice seems compliant.

     
  • Adverse Impact Population Pools
    Asked by Anonymous - Jul 12, 2017
    When comparing Promotions/Employees, is it appropriate to add selections back into the overall employee pool?

    For example, say we have 500 active employees when our data snapshot is taken. During the plan year, 50 employees are selected for promotion. Should the promotions be added into the employee pool? I feel like this would falsely inflate the population by counting those employees twice.

    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Jul 12, 2017
    Some federal contractors use "beginning of year" data to establish the pool from which promotions are selected. This avoids having to add the employees back into the denominator. However, if you are only using a single "end of year" snapshot, the successful promotions should be deleted from the job group into which they were promoted, and added to the job groups from which they came. This avoids the artificial inflation problem you identified.

     
  • Narrative component of the AAP
    Asked by Anonymous - Jul 12, 2017
    We annually track and analyze our recruitment and outreach efforts as required, but I am curious if it is sufficient to do this through a spreadsheet tracker or if should be including a more comprehensive narrative analysis? Additionally, are we required to update the AAP narrative annually? I believe we are, but I am curious as to whether others do this or consider the outreach evaluation document as sufficient to meet this requirement.
    Answered by Bill Osterndorf from HR Analytical Services - Jul 12, 2017
    To answer your last question first, AAP narratives should absolutely be updated annually. The narratives should correspondence to information associated with the statistical reports in your AAPs, and the statistical reports must be updated annually.

    In regard to the analysis of outreach that is required in the Vet and Disabled AAPs, this is an important section of the AAP narrative that absolutely should receive attention every year. The narrative should be revised each year to reflect information coming from your data metrics, and should also be revised to reflect specific outreach activities that effective and ineffective in the previous year.

    For the Vet and Disabled AAPs, a spreadsheet tracker might be sufficient to demonstrate specific outreach activities so long as the spreadsheet provides information on whether outreach activities were effective or ineffective. However, the spreadsheet would not be sufficient to deal with the required evaluation of outreach if it doesn't provide some kind of analysis of the data metrics collected on applicants, "hires", and so on.

    For the Executive Order AAP, a spreadsheet with outreach activities may be helpful. However, there are many statistical sections in the Executive Order AAP, and thus there are potentially a significant number of narratives to update in the Executive Order AAP.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jul 12, 2017
    How you track is less important than what you're doing and what your results are. I always recommend to look at this practically. The purpose of these rules is to bring in qualified candidates with particular traits. If the company is not meeting the goal in a particular area, then what else is it doing to try and reach out to these groups. For those job groups or areas that your company may find particularly challenging to meet its goals, it may want to provide additional information about what it has done to try and reach these groups. There are no specific rules on what information you must provide in the event of an audit, but more information, especially if the company fall short of a particular goal, is usually helpful. Of course, you must be able to balance that with your other responsibilities. Regarding the second part of your question, the narrative portion of the affirmative action plan, yes, those must be updated each year. In some sections the language may not change, or change much, but in other sections it may. It is important that each section be current with both the law and Company practices.

     
  • Affirmation Action Plan - Under 100 Employees
    Asked by Anonymous - Jun 29, 2017
    We are a federal contractor with 89 full-time employees. It is my understanding that we do not need an Affirmative Action Plan until we hit 100 employees. Is this accurate? If so, once we hit 100 employees will we need to report any years prior or just at 100 employees and above?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 29, 2017
    No, that is not correct. According to 41 CFR 60-1.40, which covers Affirmative Action Programs, the employee minimum for supply and service contractors which requires a written AAP is 50 employees.

     
  • What census bureau information should we use?
    Asked by Anonymous - Jun 29, 2017
    My question is: What census bureau information should we be using to conduct the Availability Analysis of our Affirmative Action Plan? All of our branches are in Dane County. In the past we have used the US Census Bureau’s Community Survey 2006-2010 (EEO-All3R) for both WI and Dane County. This was compiled by the WI Dept of Workforce Development. Is this the most up-to-date information available?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 29, 2017
    The regulations at 41 C.F.R. § 60-2.14(d) require companies to "use the most current and discrete
    statistical information available to derive availability figures," as you probably know from the manner in which you phrased your question. It may be a good idea to contact the WI Dept of Workforce Development for details on their process and how current the data may be and if it is the same data from the 2006-2010 EEO Tabulation. According to the OFCCP, "On November 29, 2012, the United States Census Bureau released the [2006-2010 EEO Tabulation] 2010 EEO Tab to the public. This EEO Tab replaces the Census 200 Special EEO File that OFCCP and covered federal contractors began using in January 2005.... Contractors must begin using the 2010 EEO Tab to develop all AAPs that commence on or after January 1, 2014.... The 2006-2010 EEO Tabulation is available on the Census Bureau’s Web site at http://www.census.gov/people/eeotabulation/data/eeotables20062010.html."


     
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