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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.
1. If a job is posted on the company website and the state board. Then the posting is closed for whatever reason (a candidate was hired; the position was closed temporarily; whatever) and then the hiring manager wants to re-open the job does it then become a new posting requiring it to be posted on the state job board?
2. If a job is posted open on the company website and the state board of a particular state but the hiring manager then finds a candidate he likes and tells them to apply, but will now be home based at a different office in a different state, does that job need to be posted in the state where it will actually be based? Such as, a job posted in Georgia, but the person they like lives in Florida and will be home based in Orlando rather than Atlanta.
3. If the OFCCP were to audit a company, do they expect to see the job posting requisition, verification the position was posted on the state board and when/why is was closed?
4. I have always heard that the OFCCP strongly discourages applicants to be manually forwarded from one job posting to another; that it is strongly recommended the applicant applies to each position they are interested in or being hired for? Can you comment on the practice of a company forwarding applicants from one position to another or from a closed position to an open position?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 15, 2018
1. Although arguably no in certain situations, the best practice would be to post the job again with the state employment service. This would ensure compliance in this area in case of an audit versus having to debate the circumstances of reopening the posting.
2. The scenario described above is not a recommended practice and would likely lead to concerns by the agency in an audit. However, for remote or variable (telework) locations, according to the OFCCP's FAQs, the contractor may "satisfy the job listing requirement for a remote job by listing the opening with an ESDS in any area where qualified candidates might be found. Where the vacancy announcement indicates that the job may be performed either from a specified duty station or remotely, the contractor must list the job with the ESDS where the duty station is located, but may also list the opening with any other ESDS it determines is appropriate."
3. Yes. Any record made or kept must be available in an audit. The agency often asks for proof of some, or all, postings.
4. This is correct. If the company is placing applicants on requisitions or applications, then the agency often analyzes a larger pool, which is much more likely to lead to statistically significant adverse impact (SSAI). If a company is providing some applicants and forwarding them to another posting, then the agency, in order to conduct an analysis of those that competed for a job, will look at availability versus actual applicants as the pool is tainted by the company - it created an applicant pool instead of those that actually competed for the jobs. If those applicants that are forwarded are like in race, ethnicity, disability status, etc., it could appear as if the company is actively engaging in discrimination.
Asked by Alisha S. - Aug 31, 2018
We currently take online applications only. So, we provide a card to people who inquire about jobs, with our web address for them to apply. Managers within the company have requested a solution for applicants who walk into our office to be considered while there on the spot. As we look to build a plan for handling this request, what do we need to be aware of with regards to OFCCP? I had always been told it was best to be consistent, if using online applications, do that exclusively, but I don't know if there is more flexibility than I know of?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 04, 2018
You are correct in that it is best to be consistent. If walk-in applicants are considered "on the spot," then it appears they may have preference and could lead to concerns by OFCCP, or at least a closer look. However, if there is a legitimate business need to hire people quickly, it can be done, but I recommend the company proceed carefully. Ensure that there is a process. How the company develops the hiring process is dependent on the specific facts, such as for what jobs will the "on the spot" process apply for in person applicants versus website applicants. The procedure for handling walk-ins should be intentional and consistent among anyone involved in the hiring process (from receptionist to final authority). It is probably prudent for you to run your adverse impact analyses both separately for walk ins and together with the online applicants to ensure there are no disparities.
I recommend using an online application process exclusively -- if at all possible. One of the concerns about walk-in applicants is the ability to obtain self-ID info. Related to that is the risk of bias that can happen with walk-ins -- when a person's race, gender, and disability status can be ascertained before an evaluation of the applicant's credentials have been made. Further, considering walk-ins before conducting online screening might obligate the company to provide the same opportunity for an interview to applicants who do not come to the office. This list is not exhaustive, but represents some of the pitfalls related to this practice.
Asked by Anonymous - Aug 24, 2018
We have overseas deploying contracts where personnel are housed in off-base villas/apartments. We have looked up law to local areas regarding cohabitation, and understanding some countries do not allow males and females to be housed together if not married.
As a company, are we required to secure housing for both males and females (even if it will not be utilized the entire time of lease) due to the makeup of the team. In other words, do we need to have additional apartment/villa rented to ensure there is separate housing for males and female in the event the team deployed will be comprised of both males and females. Personnel change approximately every 90 days, but the lease is a minimum of six months.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 04, 2018
This is a bit out of my area of practice, but I expect that it would depend on the host country laws and any applicable contracts.
Demographic Data Collection
Asked by Lisa G. - Aug 21, 2018
As a federal contractor, we are required to collect data from applicants and employees in regard to their race/ethnicity, gender, disability and veteran status. While applicants and employees have the right not to disclose their demographic information, we as an employer, are required to collect and report. This has caused some problems for us an employer when it comes to submissions of reports with missing data. What advice do you give in regards to increase applicant/employee response participation? We have tried educational campaigns but that hasn't made resulted in a huge percentage increase and we do not feel comfortable doing a visual identification (still can't wrap my head around that). Also at what point do inquiries/requests to update their information cross the line when it comes to the General Data Protection Regulation (GDPR)? Thanks in advance for any advice you can provide.
You mention that you have tried educational campaigns with your employees. I recommend the following video to my clients, as it is short, provocative, and to the point: https://www.youtube.com/watch?v=qPVRhHB9fXs. I also recommend asking all employees, once a year, to verify that all personnel info, including demographic info, is up-to-date. While we can't require them to self-ID, we can require them to review their record. When it comes to applicants, OFCCP only asks that we do our best to obtain the demographic data. Some contractors have increased applicant response rates by eliminating default responses. This requires the applicant to affirmatively select one of the responses, and among the responses is the "I choose not to self-ID" response. Good luck!
Asked by Michelle H. - Aug 21, 2018
How long do you need to keep records of those applicants that did not show for a drug test or those applicants that failed a drug test and/or background check?
Answered by David Cohen from DCI Consulting - Aug 21, 2018
60-1.12 - Any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of not less than two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later
David's answer is spot on. But I infer from your question that you see people in these circumstances (i.e., failing drug tests and background checks) as somehow different than other applicants whose records you presumably are retaining with no question. So, I'd like to chime in a little on WHY you need/want records for these applicants and why the OFCCP demands their retention.
If these job seekers otherwise meet the definition of an "Internet Applicant", only the persons who are "no shows" for the drug screen might be argued to have withdrawn and therefore not be an "applicant". HOWEVER, drug tests are NOT "tests" within the meaning of the Uniform Guidelines on Employee Selection Procedures or the mandatory selection analysis (also known as "adverse impact analysis"). Consequently, if you've made a "conditional offer" and the drug screen is the final stage they may be considered "Selected" for purposes of the analyses of impact by race/national origin/gender whether they failed to take or took and failed the drug screen. I recommend that you include them in your analyses of "applicants".
[Yes, I know they weren't "hired", but that's NOT ON YOU, it's on them and what contractors are required to analyze is the impact of THEIR decisions – not those of job seekers! The OFCCP asks the wrong question, they should ask -- and you should provide and analyze data on –ALL those who passed all your tests/who YOU selected -- i.e. MADE AN OFFER TO, RATHER THAN on who was hired/promoted. Whether an individual is hired or promoted is simply a payroll consequence of him or her accepting your offer and the applicant's status as an internal or external applicant. Make sure your disposition codes are discrete enough to be able to extract data for analysis on each of the "components" of the selection process, all the elements that make up the "go/"no go" decision making. It’s easy to "roll them up" at the end depending on how your legal counsel recommends you do your analyses. It is MUCH more difficult, costly and time consuming to disaggregate these separate elements after the fact. For longer discussions of the importance of disposition codes, see various issues of the OFCCP Digest, including my articles in the May and June 2018 issues.]
The background check IS clearly a "test", perhaps even multiple tests. People who fail the background check are rejected/not selected on that basis. The OFCCP -- and the contractor -- want to know whether the background check (criminal, credit, references, whichever is the basis for your final selection decision) disproportionately screened out women or members of any of the minority groups. Background checks are generally thought to have disproportionate impact on members of some minority groups which, if it exists, will be seen only if the numbers are big enough.
Because of the cost of background checks they are typically done at the end or toward the end of the selection process. If so, by definition, the people that fail one or more of these typically late stage "tests" are people who have PASSED the other tests in the process. Whether persons who failed a late stage background check are minorities or women or white men, ALL of them BELONG IN THE ANALYSIS OF EARLIER STAGE "TESTS".
Why? Because it may be that the "component" of the "bottom line analysis" (i.e., Applicants v. Selections which is ALWAYS where the OFCCP makes its first "finding" of unlawful discrimination) that is creating the statistical disparity commonly known as "adverse impact" is, for example, a lifting requirement or a score on a standardized test. Job Seekers/Internet Applicants who were not selected because they didn't show/didn't pass a drug screen or a background check possibly/PROBABLY passed the lifting test and/or the standardized "paper/pencil" type test. If they aren't in the analysis of those components, the analysis is flawed. The degree to which there is -- OR IS NOT -- "adverse impact" is without question influenced by whether EVERYONE who took/passed/failed each of these "tests" IS INCLUDED IN THE ANALYSIS OF IMPACT FOR EACH SUCH TEST.
Be aware that all these numbers COUNT; they MATTER. So, you must “Count the Right Numbers”! It is easy to forget that if there is an unrebutted finding of adverse impact NOT ONLY does the contractor have to PAY BACK PAY, IT ALSO MUST ELIMINATE THE “TEST” THAT IS CAUSING THE ADVERSE IMPACT. Stands to reason, doesn’t it? The contractor has to stop discriminating, even if it was unintentional. But change can be costly and disruptive so it’s important that the contractor know what particular selection device or devices it has to abandon. Particularly in the case of professionally developed standardized tests, eliminating or changing them may be more expensive than the back pay assessed! Simply paying money because there’s a statistical disparity in the “bottom line” will NOT prevent the same thing from occurring again – and again. Cause must be determined so that the contractor can either rebut the presumption of discrimination by showing the business necessity for the “test” causing adverse impact OR, eliminate/ change that “test” going forward so as to eliminate the disproportionate exclusion that is unlawful because it either cannot be defended (for lack of data/records) or because it is truly indefensible.
You need these data; therefore, you need to retain these records. The OFCCP needs these data, therefore you are required to retain these records.
Jobs with multiple locations
Asked by Natalia F. - Aug 10, 2018
We are expecting a contract that will have task orders issued in different regions across the US (Virginia, Ohio, Texas, Colorado, Maryland, Washington DC and Illinois) and we would like to build a pipeline of candidates for the possible positions coming in the future, all position listed as contingent. We have presence in all these states. There are a total of 40 possible openings the majority of them with Secret Clearance as requirement. Are we able to post one job per job title and state that we are accepting applications and that the work could be in multiple states (listing out the states) or do we need to do an opening per job per location? Thanks for your help.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 17, 2018
There is no requirement to have jobs listed by location. A company can certainly be within OFCCP regulations if it posts a job which states that the work could be located in multiple states (and any other requirements, such as clearance level, for the job). The only tricky part might be if your company has more than one AAP. You would just want to make sure that the applicants and hires align with the appropriate AAP (as well as the EEO-1 and VETS 4212). It is also within regulations if the job ends up going away and there is no hire, but "pipelines" can be difficult to do well, so I recommend that you ensure that practice does not impact your pool or analysis of that pool.
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