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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.
Our IT department frequently creates a contract-to-hire position when they are uncertain of the ultimate workload a project will create. Sometimes they will initially contract for 2-3 individuals and may eventually hire all, some, or none.
Do we have to list these positions with the ESDS (it is possible - even likely - that at least one contracted individual will be hired as an employee.)? If yes, do we need to include a time frame (even though we may not know)?
If we do hire someone permanently, what is considered the hiring "pool"?
“Temp-to-perm” and “contract-to-hire” situations present a lot of challenges when it comes to regulatory compliance. 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. So unless the position falls under these exemptions, you are required to list it. The question is, at what point do you list it? When you are recruiting for the contract-to-hire position, or when you decide to convert it to a full-time position?
Theoretically, it is the point at which the position becomes a “payroll position” or is paid within your payroll system, that triggers your obligation to list the position with the state ESDS. Technically speaking, your applicant pool would be based on that. However, having a 3-person applicant pool could be problematic and OFCCP may want to look at what they call the source pool - the candidates for the 3 contract-to-hire jobs that ultimately led to the hire - and may consider the source pool as the true applicant pool. So you will need to plan for that. If you are using a temporary or staffing agency to recruit for the contract-to-hire positions, you need to make sure that they are listing those positions with the ESDS.
As far as timeframe for conversion, there is no specified requirement for this. However, when evaluating a situation such as this, OFCCP may consider the length of time the 3 people were in a contract-to-hire status, if the employment relationship was truly that of a contractor as opposed to an employee, as well as your history of listing positions with the ESDS.
Similar questions on contract-to-hire and temporary workers have been answered in this forum by Bill Osterndorf and Debra Milstein Gardner before. I would encourage you to check out their responses as well. You can do a quick search for these related questions by entering “temporary” in the keywords field at the top of this page.
Asked by Anonymous - Aug 18, 2016
We have a lot of positions that can be filled in any city/state across the nation but only have offices in about 20 states. What are the outreach and state posting requirements as a federal contractor to comply with OFCCP regulations in these areas?
Answered by Amy Wozniak from Local JobNetwork™ - Aug 23, 2016
VEVRAA requires that contractors list all employment openings which exist at the time of the execution of the contract, and which occur during the performance of the contract, with the appropriate employment service delivery system (ESDS) where the opening occurs. Typically, the location of a job opening, or where a job opening “occurs,” is the location to which the employee must report for work. For a job opening that does not require the employee to report to, or work from, a specific location, a contractor may satisfy the job listing requirement by listing the job opening with the state or local ESDS where the work unit, division, department or supervisor to which the employee will report or be assigned is located. For example, if the position will report to a supervisor who is based in your Chicago office, then the position should be posted to the IL ESDS.
As far as outreach goes, all of the examples of outreach and recruitment activities listed in the regulations reference recruitment and outreach to relevant agencies, service centers, and community-based organizations that are located near the contractor’s establishment. So at the very least, your outreach efforts should include organizations in that local area. For more information, you can view the OFCCP’s FAQ regarding posting remote positions here.
Salary Requests/Negotiations vs OFCCP
Asked by Anonymous - Aug 16, 2016
Can salary requests and negotiations be used to defend against suggested pay discrimination? If a company is paying the candidate's "requested salary," could this be an issue during an OFCCP compensation audit?
Unfortunately, this may not provide adequate defense against a pay discrimination claim. A candidate who is interviewing at a company is not in a position to know how his or her desired compensation compares to those in similarly situated positions within the company. Because it is the employer who is in possession of that information, the onus is on the employer to ensure that it is paying employees in the same establishment equally for work that requires equal skill, effort, and responsibility, and is performed under similar working conditions. Differentials in pay are allowed based on seniority, merit, quantity or quality of production, or a factor other than sex, race, color, religion, national origin, age, or disability. For more information, refer to OFCCP’s Fact Sheet on Equal Pay and Compensation Discrimination.
How to stay current on recent pay or hiring discrimination cases
Asked by Anonymous - Aug 08, 2016
Can you recommend a website to use to stay current on cases and/or case outcomes related to pay or hiring discrimination?
Answered by Amy Wozniak from Local JobNetwork™ - Aug 08, 2016
Federal contractors are required to state in all solicitations or advertisements for employees their status as an equal opportunity employer and that all qualified applicants will receive consideration without regard to their status as a member of a protected group. The Office of Federal Contract Compliance Programs (OFCCP) provided a sample tagline that you could use in its E.O. 13672 Frequently Asked Questions that states the following: “Equal Opportunity Employer – minorities/females/veterans/individuals with disabilities/sexual orientation/gender identity.” There is no requirement to include language regarding reasonable accommodations or your phone number within the EEO tagline itself.
However, federal contractors are obligated to include information, somewhere in your job posting, regarding how a person with a disability can request an accommodation to complete the application process if that is needed. Notice of how to obtain reasonable accommodations should be provided by the contractor via its online system, as well as on its paper applications and job announcements. Ideally, such notices should be prominently displayed, and included at the beginning of the online application process. At a minimum, these notices should contain the name of the person to contact, and the process for requesting an accommodation.
Non-discriminatory screening of candidates.
Asked by Anonymous - Aug 02, 2016
I am hoping that you can help me out and review the below information for legal and non-discriminatory screening of candidates. Our team has proposed the following language below to be included in a posting of approximately 10 positions for a contract that we were awarded last week. I'm not sure it meets nondiscriminatory requirements.
Also, we have a requirement to provide a credit check and a specific score must be achieved or the candidate will not be hired. We must do this within 5 hours of receiving a go forward from a resume review. This severely limits our ability to have a signed offer in hand with a contingency for passing the requirements listed below.
Other Requirements: While this position does not require a security clearance, applicants must be eligible to work in the United States. In addition, Applicants must also: • Pass a background investigation, which may include a credit check including overall credit score • Be alcohol and drug free • Be literate, well-groomed and courteous • Have the ability to lift and handle at least 50 pounds
The job requirements must be related to the position being posted. There are few positions in which a credit check would be necessary, so such criteria should be evaluated on a case-by-case basis. Physical requirements should also be reviewed for business necessity for specific positions, as the ability to lift 50 pounds will tend to screen out women.
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.