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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.
We are trying to understand best practice with a position we're posting in regards to Exempt vs. Nonexempt and FLSA. The position is a Talent Acquisition Coordinator/HR Admin. This position is the entry point for our company - it'll be the lowest level position at the company (private, DOD contractor). The role is complex because it'll be supporting both talent acquisition and HR administration. The salary range will actually be in the mid - upper $50k's. While it is the entry point in the company, this individual will support multiple HR functions. There are currently no other roles at that level in the company. Should it be exempt or nonexempt?
In order for a position to qualify for exemption under the Fair Labor Standards Act (FLSA) minimum wage and overtime pay requirements, the job duties and salary must meet the test specified in the regulations. The FLSA allows for the exemption of bona fide executive, administrative, and professional positions as long as they meet the requirements. Other positions may also qualify for exemption as listed in the FLSA guidelines.
Based on your description of the position, the Administrative Exemption test is most likely the one you would want to review. To qualify for the administrative employee exemption, all of the following tests must be met:
• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
We're a government contractor and every year we bring on a cohort of paid, summer interns. Each intern formally applies to our company for the internship position. At the end of their internships, we make full-time offers to some of the interns. What is the best practice in terms of converting them to full time employees at the end of their internships? Does each intern need to apply again to a full-time open requisition? Do we need to open and compete requisitions that we know these interns will fill since they've been already working for us? Can we simply add them as full-time staff without having to open a full requisition?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jul 12, 2018
Assuming there are distinct criteria for hiring the interns (from your other hires), they are likely their own pool of applicants and hires for such purposes as your adverse impact analysis and record keeping requirements. Once interns are brought on as employees, if a company converts them to full time, they are more likely to fit your definition of a transfer or promotion. If there is a break in employment, then they need to apply and be hired like any other rehire. (Though rehires are sometimes not in the same pool for analysis purposes as first time hires.)
Union & Subcontractor Conciliation Obligations
Asked by Anonymous - Jun 28, 2018
We are a subcontractor and are also union. We have a conciliation agreement and an obligation to direct recruitment efforts to minorities and women - However, we do not currently have any available openings. How do we best execute the obligations of this conciliation agreement without a job to advertise/recruit for? Thank you!
Generally speaking, action in compliance with the conciliation agreement would be triggered when your company has a vacancy or begins to recruit applicants. However, the requirements for construction contractors do vary from those of supply and service contractors, as there are additional union record keeping requirements that apply to construction contractors. Contractors with a federal or federally-assisted construction contract or subcontract over $10,000 are required to comply with the Sixteen Specifications, which are the affirmative action steps listed in 41 CFR 4.3[a]. For example, if your company is a construction subcontractor, you need to establish and maintain a list of your minority and female recruitment sources, as well as maintaining a record of their responses to you when you notify them of your opportunities. You should have records of the names, addresses, and telephone numbers of each minority and female referral from your union, as well as those you sent to the union for referral, and the corresponding actions taken. You should also disseminate your EEO policy internally and externally, which includes sending this to your union, incorporating this in your collective bargaining agreement, and enlisting your union’s help in fulfilling your equal employment opportunity obligations. Keep in mind that construction contractors are required to send written notification to minority and female recruitment sources and community organizations no later than one month prior to the date they start accepting applications for apprenticeships or training.
As a best practice, be proactive and start building relationships with community-based organizations, trade schools and training organizations, minority associations, church organizations, and other recruitment sources that could help you recruit minorities and female applicants. Make them familiar with the types of positions you normally hire for and notify them when the positions become available. This would demonstrate positive recruitment efforts on your part and help you build a good network of recruitment sources that you can draw from, and send to your union.
Having a union does not exempt a contractor, construction or not, from the EEO and affirmative action requirements that come with a federal contract or subcontract. In fact, the regulations state that a construction contractor should notify OFCCP if it feels the union has impeded the contractor’s efforts to comply with its EEO/AA obligations.
Applications for Employment
Asked by Anonymous - Jun 26, 2018
We have just implemented the Applicant Tracking System. Previously we utilized a hard-copy attorney-approved application for employment, which was signed by the applicant in receipt of FCRA disclosure, and attesting to truthfulness of info within the app. With this electronic process, there is no more signature. Are we sufficiently covered as far as risk mitigation is concerned since there is no signature anywhere?
The Federal Trade Commission (FTC) which enforces the Fair Credit Reporting Act (FCRA) requires that employers who are securing background information (such as a credit report) from companies who are in the business of compiling background information (such as a credit reporting agency), must notify applicants in writing that they might use the information obtained in making an employment decision.
This needs to be in writing and in a stand-alone format. The FTC also further states that this notice cannot be in an employment application. In addition, employers need to secure the applicant’s written permission to conduct the background check, and certify to the credit reporting agency or background check company that it followed the FCRA requirements. Compliance will be dependent on how you are delivering the notice online, and securing their consent.
There are laws such as the ESIGN Act that govern the use of electronic signatures and an opinion letter issued by the FTC. I would consult with your legal counsel to ensure that the method you are using is compliant with the provisions within the context of the FCRA requirements.
When you have a contract requirement that requires candidates be tested on their skills and this only applies to one program, can you advertise the testing requirement even if you don't test for other positions you hire for? I thought your postings had to be consistent.
Postings should be consistent for any individual position unless some criteria for the job has changed. Thus, if you have two postings for entry-level customer service reps, the basic qualifications should be the same and the general requirements to move forward in the selection process should be the same unless something has changed with the job. For example, if you require a high school diploma and at least two years of CSR experience for a CSR position, you should stick with these criteria unless you've discovered that the CSR job has suddenly become more complex and requires more than two years of experience.
You are NOT required to approach the selection process for different positions in the same manner when the positions are distinct from each other. For example, you could tell candidates that you will only accept applications from CSR candidates for 30 days from the original date of posting, while you could tell candidates that you will accept applications from professional engineering candidates for 90 days from the original date of posting. This would make sense in light of the difficulty organizations are having in finding engineering candidates.
In your specific circumstance, you could test candidates for one particular job without testing candidates for other jobs. We see this routinely with manufacturing companies, where candidates for most hourly production positions are not tested but candidates for welding positions must complete a weld test. You would be allowed to advertise that you have a testing requirement if this is, in fact, part of your selection process, even if the testing is only for one type of position.
Please note that this is not a general endorsement of employment tests. Employment tests must be validated for the specific job and the specific skills associated with that job. A testing company that advertises it has a test that has been "nationally validate and is universally used" for any type of position has a test that is inherently suspect, since any viable test should be job-specific and measure skills and abilities relevant to your particular company and situation.
Thus, you can advertise that you test for one specific program or type of position, but you should be sure that the test has been properly validated and will yield useful results that help you make decisions in a non-discriminatory manner.
Applicant Flow Tracking
Asked by Anonymous - Jun 05, 2018
We are considered a federal contractor and thus we need to report on all of our applicant flow. We have found that because we are not mobile apply friendly, we are having drop off once people get to our site. Thus we have been working with services outside of our ATS such as Zip and Indeed. We ask people to apply even in these forums, but most of them just send an email or a resume in email, so tracking applicants becomes ineffective. What are other companies doing to ensure strong applicant flow, but still be able to manage the required reporting?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 06, 2018
This is a very common issue and there is no easy fix. The best place to start is often the internet applicant rule and implementing good data management techniques. This limits the data the company needs to capture. Having a process for accepting and reviewing resumes is equally important. For example, reviewing only those resumes submitted for a specific position of requisition. Some companies have an auto-response that includes language about collecting demographic information with self identification forms. Of course, those involved in the process need to follow these processes as strictly as possible. Ultimately, though, the data must be captured in order to comply with the regulations and there is really no way to do this efficiently.
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.