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OFCCP: Ask the Experts
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.
The format and content of Request for Proposals (RFP) vary across the board. There is no one-size-fits-all template for an RFP. Depending on the scope of work to be performed, some RFPs can be short and simple, while others can be long and more involved.
There are common sections included in RFPs such as the scope of work to be performed, project deliverables, and bid schedule; but the terms and conditions will vary depending on the contractual requirements that apply to that project or company.
My suggestion would be to work with your department that handles your contracts/subcontracts or with your legal counsel who can help you draft one that fits your specific requirements.
Radio Ads & EEO Taglines
Asked by Anonymous - Nov 08, 2016
One of our locations is going to run a radio ad for recruiting. Do you have any suggested language for an EEO statement that a radio announcer could read? Or, do you suggest they read the official statement word for word?
I'm going to assume that your organization is covered by the federal affirmative action regulations. If this isn't the case, you have significant latitude in what you might use for an EEO tagline.
While it might seem somewhat unreasonable, OFCCP requires that radio and television ads have an EEO tagline that parallels what is use with any other type of advertisement. Thus, if you want to use a short EEO tagline, you would need to say something like "Equal Opportunity Employer-vets and disabled". However, I would personally find this tagline awkward for use in radio or TV ads, even if it works for print ads.
If you still want something short, you may want to consider the following:
"Equal Opportunity Employer - veterans and individuals with disabilities encouraged to apply."
If you're willing to have a longer tagline, you might want to use something like this.
"We are an equal opportunity/affirmative action employer. We especially encourage veterans and individuals with disabilities to apply."
If you'd like to encourage minorities and women to apply, OFCCP has stated that you need to include something about all the classifications protected under Executive Order 11246 in your advertisement. That would mean your tagline would be something like this.
"We are an equal opportunity/affirmative action employer. We consider candidates regardless of race, color, religion, gender, sexual orientation, gender identity, national origin, disability, or veteran status."
A better (though longer) version of the above might be as follows:
"We are an equal opportunity/affirmative action employer. We consider candidates regardless of race, color, religion, gender, sexual orientation, gender identity, national origin, disability, or veteran status, and encourage minorities, females, veterans, and individuals with disabilities to apply."
Ultimately, you're left with a variety of problematic choices. Thank OFCCP for making this more difficult by providing restrictive instructions in its revised regulations for protected veterans and individuals with disabilities and in its new regulations regarding sexual orientation and gender identity.
Contract Threshold Amounts
Asked by Anonymous - Oct 31, 2016
Can anyone direct me to where I might find information on federal contractor compliance obligations at the various thresholds? For instance, the non-discrmination in employment for contracts in excess of $10K or more.
OFCCP has developed an infographic designed to answer all jurisditional questions at: https://www.dol.gov/ofccp/posters/Infographics/JurisdictionalThresholds_508_Feb2016_JRFQA508c.pdf
Answered by Carla Irwin from Carla Irwin & Associates, Inc. - Nov 01, 2016
elaws is also a good source of information http://webapps.dol.gov/elaws/ofccp.htm. It will ask you a series of questions to help determine your threshold and responsibilities.
VEVRAA Compliance Checklist
Asked by Anonymous - Oct 28, 2016
Can anyone tell me where I might find a checklist or other type document that lists all of the requirements under VEVRAA? I found one for Section 503 and Executive Order 11246, but haven't found a comprehensive list for the vet regulations.
There will certainly be companies that offer writing tests. The more important question for you, however, is validation. Most companies offering writing tests will tell you they've done national validation studies, or that their studies have been proven effective across a wide base of industries. This is not an acceptable way to look at validation studies, at least from a regulatory perspective.
Any tests that are used for selection- and/or decision-making purposes should have the following two characteristics:
1. They should have been validated for the particular workforce at issue 2. They should have been validated for the specific jobs at issue
Thus, if you're going to use a writing test to determine whether candidates for marketing positions are viable candidates, you will need to create and use a writing test that is validated for your company at whatever location the marketing candidates will be based that specifically evaluates writing skills used for marketing positions.
I have personally found very few situations where companies are using properly validated tests. Conversely, I have seen plenty of examples where a test bought "off-the-shelf" that has been "validated" for use throughout the United States is being used to make decisions. These tests too often have a disparate impact on some protected class.
If you strongly feel that you want to create a writing test that will evaluate candidates, I'd encourage you to work with a local college or university to specifically develop a test that is specific to your organization and to the positions where the test will be used.
I recognize this is neither the answer you were seeking, nor is it an answer that everyone will agree with. However, in the current regulatory environment, where tests are coming under increasing scrutiny by regulatory agencies, I would urge great caution in the creation and use of tests. This is especially the case with something like a writing test, where it will be much more difficult to develop a set of objective measures than it might be for something like a welding test.
OFCCP for Religious organizations?
Asked by Anonymous - Oct 21, 2016
Is it true that if we are a skilled nursing facility with 400 employees, and a federal contractor, that we are exempt from OFCCP because we are a religious based organization?
Answered by Carla Irwin from Carla Irwin & Associates, Inc. - Oct 24, 2016
Here is the regulatory language on contracts with religious entities. §60-1.5 Exemptions. (a)(5)
(5) Contracts with religious entities. Section 202 of Executive Order 11246, as amended, shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.
Here is OFCCP FAQs on EO 13672 that may also clarify: https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html#Q9
Religious Employers and Religious Exemption
How does Executive Order 11246 apply to religious organizations?
Executive Order 11246, as amended, only applies to employers that are federal contractors or federally–assisted construction contractors. A religious organization will only be subject to the Final Rule if it enters into a new covered federal contract or subcontract, or modifies an existing covered federal contract or subcontract, on or after the Final Rule’s effective date of April 8, 2015. Religious organizations that are not contractors, but recipients of grant funds, for example, the Senior Farmers’ Market Nutrition Program, the Office of Refugee Resettlement Voluntary Agencies Matching Grant Program, and the Community Development Block Grant (CDBG) program, are not subject to Executive Order 11246. On the other hand, if a religious organization does hold a covered contract, it is prohibited from discriminating on any of the protected bases listed in Executive Order 11246, as amended, including the newly added categories of sexual orientation and gender identity. The Executive Order and OFCCP regulations do provide, though, an exception that permits religious organizations to prefer to employ only members of a particular religion. The so–called “ministerial exception,” also discussed below, may apply as well.
Does the Final Rule alter the existing religious exemption in EO 11246 in any way?
No. EO 13672 did not change the existing religious exemption, which was added to EO 11246 by President Bush in 2002, allowing religiously affiliated contractors (religious corporations, associations, educational institutions, or societies) to favor individuals of a particular religion when making employment decisions. The regulation implementing that exemption is located at 41 CFR 60–1.5(a)(5).
That regulation states that the nondiscrimination obligations of Executive Order 11246 “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”
In addition, the Supreme Court has recognized that the First Amendment to the Constitution requires a “ministerial exception” from employment discrimination laws, which prohibits the Government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy.
What kinds of organizations are covered by the religious exemption of Executive Order 11246?
Under section 204(c) of Executive Order 11246 and 41 CFR 60–1.5(a)(5), the Executive Order does not apply to a government contractor or subcontractor that is a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of the organization’s activities. This language mirrors the religious exemption of Title VII of the Civil Rights Act of 1964, and OFCCP will follow EEOC and courts’ interpretations of Title VII when determining which organizations can claim the exemption and how it applies. Under established case law, this exemption applies only to those institutions whose purpose and character are primarily religious. In determining whether a contractor qualifies for this exemption, OFCCP will consider all significant religious and secular characteristics of the organization, with each case turning on its own facts. Although no one factor is dispositive, significant factors that courts have considered to determine whether an employer is a religious organization for purposes of Title VII include: whether the contractor is not for profit, whether its day–to–day operations are religious (e.g., are the services the contractor performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether the contractor’s articles of incorporation or other pertinent documents state a religious purpose; whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or other religious organization; whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; whether the contractor holds itself out to the public as secular or sectarian; whether the contractor regularly includes prayer or other forms of worship in its activities; whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and whether its membership is made up of coreligionists.
How can contractors invoke the religious exemption under 41 CFR 60–1.5(a)(5)?
Executive Order 11246 and 41 CFR 60–1.5(a)(5) do not require contractors to obtain pre–approval from OFCCP to take advantage of the religious exemption. In the past, though, some contractors have submitted written requests for exemptions to OFCCP’s Division of Program Operations, explaining why they qualify for the exemption. Contractors can also invoke the exemption in connection with an OFCCP compliance evaluation, or when they enter into a covered contract or subcontract. OFCCP carefully considers each of these requests in coordination with the Solicitor of Labor.
How does EO 11246’s exemption for religious organizations operate in light of the addition of the new protected categories?
In general, this exemption allows religious organizations to prefer to employ only members of a particular faith, but it does not allow religious organizations to discriminate in employment on the basis of race, color, sex, sexual orientation, gender identity, or national origin.
How does the “ministerial exception” interact with Executive Order 11246?
The Supreme Court has recognized that the First Amendment requires a “ministerial exception” from employment discrimination laws, which prohibits the government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy. In determining whether the ministerial exception applies to an employer’s decision in a particular case under Executive Order 11246, OFCCP, as guided by Supreme Court precedent, makes an assessment of all of the facts and circumstances of employment, including the functions performed by the employee, the job title given to and used by the employee, and the amount of time the employee spends on particular activities.
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.