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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 Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) requires federal contractors to list all employment openings with the state ESDS with the exception of: (1) executive and senior management positions, (2) those positions that will be filled from within your organization, and (3) positions lasting three days or less.
VEVRAA describes "executive and senior management" to mean: (1) Any employee (a) compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities; (b) whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (c) who customarily and regularly directs the work of two or more other employees; and (d) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight; or (2) any employee who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management.
If your positions meet that definition, then you are not required to list those positions with the state ESDS.
Vendor Refusing EO Clause
Asked by Anonymous - Sep 30, 2016
We are a federal contractor and have asked a vendor to include the EO clause in a contract. They have asked to use the language below instead of the mandated EO clause. Is this acceptable?
"[Vendor] agrees that it will not discriminate against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin."
First, check to make sure that your contract falls within the jurisdictional thresholds of EO 11246, VEVRAA, and Section 503. Each of these regulations requires the incorporation of an EO clause in all covered subcontracts to make sure that the nondiscrimination and affirmative action obligations flow down to subcontractors. You can combine and incorporate these into the subcontract by reference, but you will have to use the following language, in bold text, after you cite the regulations, and preserve the prescribed content of the veteran and disability EO “incorporation by reference” clauses:
This contractor and subcontractor shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
A similar question on the EO clause has been answered in this forum by Bill Osterndorf before. I would encourage you to check out his response as well. You can do a quick search for the related question by entering “EO clause” in the keywords field at the top of this page.
First Right of Refusal
Asked by Anonymous - Sep 27, 2016
We recently won a contract that has a "first right of refusal" clause. Do those who have first right of refusal still have to submit their resume online?
I am assuming you are referring to EO 13495, “Nondisplacement of Qualified Workers Under Service Contracts” which applies to federal government service contracts. The EO requires that qualified workers be given the right of first refusal for employment with a successor contractor. If you are the successor contractor, you may not hire any new employees under the contract until this right of first refusal has been provided.
You are not required to offer them the same position, but only for one that they are qualified. How you would determine this is up to you. If you ask them to submit a resume to evaluate their qualifications, you need to make sure you apply this practice consistently.
In determining whether one is qualified for the position, the general rule is that if they have been performing the job before, you should assume that they are qualified for the position unless there are some records from the previous contractor that would prove otherwise.
If you are considering them for other jobs than that they previously occupied, then you may consider their general qualifications using the information supplied by the employee or previous contractor.
If the new contract does not provide for the same number of job openings - for example, the previous contract had 100 job openings and your current contract has 80 – you are obligated to offer a job to qualified individuals in the remaining pool of 20 should any of the 80 vacate their position in the first 90 days of the new contract.
For more information, the DOL Wage and Hour Division has several useful resources for contractors here.
Asked by Shannon L. - Sep 27, 2016
We have updated our job description. Please review and give any feedback. Service/Sales Route Technician
Plunkett's Pest Control You probably never thought about working for a pest control company; but it may just be everything you are looking for. Are you a dynamic, energetic and motivated person who can work independently and with a team? Does the idea of managing your own territory and growing business while providing essential services to our commercial and residential customers every month interest you? Do you have a valid driver's license and are ready to work on one of the top service teams in the upper Midwest? Working out of your home, you will be servicing the _______ area. The Route Service/Sales Technician is provided a company truck, competitive compensation and excellent benefits package including vacation, sick time, medical insurance and a 401k retirement plan. Pest control experience is not required; we will train the right person and provide them with all the tools required for a successful career. POSITION DESCRIPTION: The Route Service/Sales Technician will be responsible for an assigned territory to manage each month. You will provide inspections and treatments to a variety of business ranging from restaurants, food plants, warehousing to office buildings and residential homes. You will also be required to build new business through sales. Essential Job Duties: • Drive company vehicle to client sites to provide pest management services in a professional and safe manner • Build route density by finding new prospective clients and looking for ways to add value to existing clients • Participate fully in training opportunities to enhance knowledge; and to meet requirements for licensing and safety standards • Work in a safe manner by adhering to OSHA, state requirements, and Plunketts’ policies and procedures • Maintain proper inventory of tools, equipment, and materials in company vehicle to complete all work and tasks assigned • Project a professional image; is friendly, pleasant, and courteous when dealing with internal and external clients • Perform effectively with minimal direction and without direct supervision • Adapt quickly to change and work under tight deadlines • Organization of own work and completion of work on a timely basis
Job Requirements To perform this job successfully, an individual must be able to perform each essential duty satisfactorily. The requirements below are representative of the knowledge, skill, and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. • High school diploma or equivalent • Ability to read, legibly speak, and understand English; must be able to communicate clearly and effectively to clients or Plunkett’s employees • Requires communication through telephone conversations, face-to-face interactions, and email • Able to use computer-based and mobile applications • Ability to maintain a high level of confidentiality • Lift/push/pull 25lbs-50lbs regularly and up to 100lbs occasionally • Extensive bending, kneeling, stooping, crouching crawling, reaching overhead, climbing a ladder, work in confined spaces, walk for long periods, and sit for long periods. • Tolerate a variety of environmental conditions, indoors and outdoors during seasonal weather, damp locations, and dusty locations • Utilize application equipment, inspection equipment, and small hand tools • The ability to work extended hours and some weekends • Self-starter with strong problem solving skills; detail oriented • Exceptional client service skills; team player • Must have a valid driver’s license and acceptable driving record • Physical capability assessment, favorable drug test, and acceptable background record is also required
About Plunkett’s: Plunkett’s is a 3rd generation family owned business established in 1915 – celebrating over 100 years of continued growth! Our 370+ employees enjoy competitive wages and rewards, fantastic benefits, a company sponsored retirement program, continuous training and career development. Plunkett’s is an outstanding, privately owned company that holds a great deal of opportunity for people who want to step up and start an exciting career!
Come join the Plunkett’s family!
Plunkett’s is an equal opportunity employer and committed to hiring and retaining a workforce that reflects the diverse communities we serve. EOE/Minorities/Females/Protected Vets/Disabilities/LGBT
Job descriptions are a useful tool that describes the tasks, duties, functions, and responsibilities of a position. Job descriptions typically include the following components: • Job title • Summary/ objective • Essential functions • Competency • Supervisory responsibilities or level of supervision • Work environment • Physical demands • Required education and experience • Affirmative action plan/ equal employer opportunity (AAP/EEO) statement
The job description you provided does include each of these components. I do have two suggestions: 1. Be consistent with how the job title is listed. In the heading, the job title is “Service/ Sales Route Technician” but in the position description it is listed as “Route Service/ Sales Technician”. 2. Add a statement that indicates that the job description is not designed to be a comprehensive listing of activities, duties or responsibilities that are required and that other duties may be assigned. For example, you could add “Cooperate with company management by performing any other duties when asked to do so.”
Federal Contractor Compliance Question
Asked by Eli M. - Sep 27, 2016
We are a federal contractor and I want to confirm that we are asking the required questions correctly.
Voluntary Information Voluntary Equal Opportunity Questionnaire
As an equal opportunity employer, we hire without consideration to race, religion, creed, color, national origin, age, gender, sexual orientation, marital status, veteran status or disability. We invite you to complete the optional self-identification fields below used for compliance with government regulations and record-keeping guidelines.
Gender Race Voluntary Veterans Status
This employer is a Government contractor subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, 38 U.S.C. 4212 (VEVRAA), which requires Government contractors to take affirmative action to employ and advance in employment: (1) disabled veterans; (2) recently separated veterans; (3) active duty wartime or campaign badge veterans; and (4) Armed Forces service medal veterans. These classifications are defined as follows:
A “disabled veteran” is one of the following: a veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or a person who was discharged or released from active duty because of a service-connected disability. A “recently separated veteran” means any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval, or air service. An “active duty wartime or campaign badge veteran” means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense. An “Armed forces service medal veteran” means a veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.
Protected veterans may have additional rights under USERRA—the Uniformed Services Employment and Reemployment Rights Act. In particular, if you were absent from employment in order to perform service in the uniformed service, you may be entitled to be reemployed by your employer in the position you would have obtained with reasonable certainty if not for the absence due to service. For more information, call the U.S. Department of Labor's Veterans Employment and Training Service (VETS), toll-free, at 1-866-4-USA-DOL.
If you believe you belong to any of the categories of protected veterans listed above, please indicate by making the appropriate selection below. As a Government contractor subject to VEVRAA, we request this information in order to measure the effectiveness of the outreach and positive recruitment efforts we undertake pursuant to VEVRAA. You can select all that apply by holding CTRL and clicking the appropriate selections. Any information provided is voluntary and will not be not be used in any fashion that is inconsistent with this act.
Veteran/Disability Voluntary Self Identification of Disability
Voluntary Self-Identification of Disability
Form CC-305 OMB Control Number 1250-0005 Expires 1/31/2017
Why are you being asked to complete this form?
Because we do business with the government, we must reach out to, hire, and provide equal opportunity to qualified people with disabilities.i To help us measure how well we are doing, we are asking you to tell us if you have a disability or if you ever had a disability. Completing this form is voluntary, but we hope that you will choose to fill it out. If you are applying for a job, any answer you give will be kept private and will not be used against you in any way.
If you already work for us, your answer will not be used against you in any way. Because a person may become disabled at any time, we are required to ask all of our employees to update their information every five years. You may voluntarily self-identify as having a disability on this form without fear of any punishment because you did not identify as having a disability earlier.
How do I know if I have a disability?
You are considered to have a disability if you have a physical or mental impairment or medical condition that substantially limits a major life activity, or if you have a history or record of such an impairment or medical condition. Disabilities include, but are not limited to: • Blindness • Cerebral palsy • Multiple sclerosis (MS) • Deafness • HIV/AIDS • Missing limbs or partially missing limbs • Cancer • Schizophrenia • Post-traumatic stress disorder (PTSD) • Diabetes • Major depression • Obsessive compulsive disorder • Epilepsy • Bipolar disorder • Impairments requiring the use of a wheelchair • Autism • Muscular dystrophy • Intellectual disability (previously called mental retardation)
Please Select one of the options below :
Date: Calendar Format: MM/DD/YYYY
Reasonable Accommodation Notice
Federal law requires employers to provide reasonable accommodation to qualified individuals with disabilities. Please tell us if you require a reasonable accommodation to apply for a job or to perform your job. Examples of reasonable accommodation include making a change to the application process or work procedures, providing documents in an alternate format, using a sign language interpreter, or using specialized equipment. i Section 503 of the Rehabilitation Act of 1973, as amended. For more information about this form or the equal employment obligations of Federal contractors, visit the US. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) website at www.dol.gov/ofccp. PUBLIC BURDEN STATEMENT: According to the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless such collection displays a valid OMB control number. This survey should take about 5 minutes to complete.
In reviewing the voluntary self-identification of protected veteran status you provided above, this appears to be consistent with the sample invitation to self-identify provided in the VEVRAA Final Rule. The language above did not include the selections, which I assume appear in the electronic format. In any case, make sure the selections include the following:
[ ] I identify as one or more of the classifications of protected veteran listed above [ ] I am not a protected veteran [ ] I don't wish to answer
As far as the voluntary self-identification of disability, contractors are required to use the exact language that is provided in the OMB form. If creating an electronically fillable copy of the form, you should make sure that you do not alter the form or make changes that diminish the general accessibility of the form. The language you provided above appears to be consistent with the language in the OMB form. Make sure the selections do not deviate from the following:
[ ] Yes, I have a disability (or previously had a disability) [ ] No, I don't have a disability [ ] I don't wish to answer
For additional information, refer to the OFCCP FAQs on VEVRAA and Section 503, which address questions on voluntary self-identification.
As far as the general EEO self-identification survey, you should include a statement about the voluntary nature of this inquiry in your language. EEOC also provided links to sample self-identification language on their website.
Self ID as Disabled as an Applicant Vs Employee
Asked by Debbie T. - Sep 23, 2016
I have had at least 7 applicants disclose through our ATS system that they are disabled, but when they become employees, they select "decline to answer." I want these disabled employees reflected in our current workforce numbers. What is your advice?
Debra Milstein Gardner has addressed this issue below in her response to a question labelled "Self Identification Responses." I would encourage you to read her comments there.
In many ways, it's neither OFCCP nor consultants in this field who have discouraged companies from doing as you have suggested. It is employment attorneys who have strongly discouraged organizations from showing employees who have declined to self-identify as individuals with disabilities. Employment attorneys have been concerned that treating someone as an individual with a disability who has not specifically self-identified as such may create some form of liability for an organization should there be a discrimination complaint filed by such an individual.
OFCCP might prefer that you count an applicant who self-identified as an individual with a disability as an individual with a disability when that person is hired (though it is not perfectly clear what the agency's position is in this regard), and you might prefer to do so to improve your data metrics. However, your attorney might raise concerns. And frankly, that's your attorney's job: to help to protect you from liability.
That means my advice on your question is basically this: what you want to do seems entirely sensible and logical, but you would be well served to discuss this issue with your attorney before moving forward.
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.