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.
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  • Federal Contractor Compliance Question
    Asked by Eli M. - Sep 27, 2016
    Hi,

    We are a federal contractor and I want to confirm that we are asking the required questions correctly.

    Thank you!

    Careers website: https://chp.tbe.taleo.net/chp01/ats/careers/v2/jobSearch?cws=38&org=BURKHARTDENTAL

    Text:

    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 :

    Name:

    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.
    Answered by Roselle Rogers from Local JobNetwork™ - Oct 03, 2016
    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?
    Answered by Bill Osterndorf from HR Analytical Services - Sep 23, 2016
    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.

     
  • Disposition codes
    Asked by Shannon L. - Sep 23, 2016
    Hello,
    I am currently setting up new disposition codes. I am wondering if it would be compliant to have one that says: Others better qualified - work history. I'm thinking of work history as tenure at a job, not as experience. I get quite a few applicants with a couple of months at each job, and I would like people that have stayed in positions longer.
    Answered by Bill Osterndorf from HR Analytical Services - Sep 23, 2016
    I think you would be better with a disposition that say "Others better qualified - too many jobs in short period of time" to disqualify the candidates you describe above. For most people, "Others better qualified - work history" means that one candidate has a stronger work record (because of skills, experience, or other attributes) than another candidate.

     
  • Updated DOL guidance on electronic self-ID systems...
    Asked by Carrie H. - Sep 23, 2016
    I received a notice from our ATS vendor that said the DOL recently updated their guidance on how electronic self-ID systems should work to be compliant. The vendor claims that employers must permit candidates to move through the forms without making a selection - even though, the form contains the "I prefer not to.." option. This means that candidates are essentially able to bypass the form.

    Is this true? I cannot find the DOL source of the vendor claim.

    Why would allowing a bypass be compliant when the candidate can choose the option not to disclose? If they bypass the form, what is our evidence that it was presented to the candidate?
    Answered by Bill Osterndorf from HR Analytical Services - Sep 23, 2016
    As someone who has followed the field closely, I am not aware that DOL has recently provided additional guidance in this regard. If your ATS vendor is making this claim, you might want to ask about the specific OFCCP regulation, directive, FAQ, or other published item that shows this is the situation.

    In the meantime, from what I know, you are allowed to use an "I prefer not to..." option rather than allowing candidates to bypass the form. In fact, I would suggest this is a far better way to deal with candidates, since we want to candidates to make a declaration (even it is "I prefer not to self-identify") rather than skipping survey forms.

    A quick note on ATS vendors: we have seen multiple examples over the years of ATS improperly interpreting federal regulations, and multiple examples of ATS vendors providing improper advice on federal regulatory issues. I'm sure ATS vendors are doing their best to provide accurate information, but ATS vendors do not spend the bulk of their time dealing with the increasing complexities in the EEO/AA world.

     
  • Applicants/Union/Seniority question for EEO/AAP
    Asked by Heather K. - Sep 23, 2016
    We are a federal contractor and also are union. Due to the nature of our business we often lay off people for short periods of time and then call them back from the union based on seniority when we need them back. For Affirmative Action Plan purposes, are we supposed to track every person called back from the union as an "applicant" each time they are rehired? And when we rehire someone by requesting them back from the union, are they considered an external or internal applicant (if they are supposed to be tracked as an applicant each time they are rehired)? Are we required to post the job on the state job board when we call people back even though our union contract specifies we must call back people with seniority from the union when we have the position available again? Are there any resources available for ofccp compliance specifically for union employers?
    Answered by Bill Osterndorf from HR Analytical Services - Sep 23, 2016
    Do you treat a layoff as a termination? if not, then when employees return from layoff, they are not being hired and you should not treat them as applicants.

    If you DO treat a layoff as a termination, and therefore treat the return from layoff as a hire, then the person returning from layoff is an applicant. However, it doesn't make sense to post with the state job board or do any other form of outreach if no other candidates will be considered. (This is especially the case if the rehire is dictated by the provision of your bargaining agreement.) You would simply want to explain to OFCCP that the only person considered is the person who previously held the job and who was to be "rehired" under the terms of your bargaining agreement.

    When providing data to OFCCP, some federal contractors include data on layoffs and recalls. While OFCCP might not require this data under its formal regulations, including data on layoffs and recalls helps to ensure that the various statistical components in your affirmative action plans match. This is something you may want to consider, especially if you are now showing layoffs and recalls as terminations and hires.

    The discussion above assumes that your company is a supply and service contractor. If your company is a construction company that uses a union hiring hall, then what you've described as a layoff may in fact be a termination. Some of our construction clients routinely hire individuals from a hiring hall for the duration of a specific project, release them from employment, and then hire then onto another project soon after. These individuals may cycle from project to project, and may feel like long-term regular employees. However, if the bargaining agreement with the union says that when a job is done, individuals who had been working on that job leave your company and return to the hiring hall, then you have a series of hires and terminations for the same individuals, with the hire being dictated by the union.

    OFCCP has no resources that are specifically focused on union employers, though the affirmative action regulations have a number of references to unions. If the answers above aren't helpful, you may want to contact your local OFCCP office and see if they can provide you with technical assistance on how to deal with union issues in your AAPs.

     
  • EO Clause Incorporation
    Asked by Anonymous - Sep 21, 2016
    We are a financial institution held to Affirmative Action requirements as an FDIC member. I am aware of the EO Clause requirements in contracts, subcontracts and purchase orders, but have also heard that the EO Clause only needs to be included if the contract, subcontract, or purchase order is related to business of the government contract.

    Is that statement accurate? Additionally, how does this apply if our only obligation is as an FDIC member and not a specific government contract? Must the EO clause still be included?
    Answered by Roselle Rogers from Local JobNetwork™ - Sep 23, 2016
    OFCCP views participation in the FDIC and entering into an agreement for insurance as a contract as defined by the regulations implementing Executive Order 11246, VEVRAA, and Section 503, all of which require equal employment opportunity by federal contractors.

    The regulations define a government contract as “any agreement or agreement modification between any contracting agency and any person for the purchase, sale or use of personal property or non-personal services.” Because “non-personal services” includes insurance and fund depository services, OFCCP considers financial institutions with federal share and deposit insurance as government contractors.

    Based on this, it is advisable that you include the EO clause in your contracts, subcontracts, and purchase orders.

    For more information, please refer to OFCCP’s FAQs on Jurisdiction where it addresses questions on financial institutions.
    Answered by Bill Osterndorf from HR Analytical Services - Sep 23, 2016
    Here's the first question you need to ask: where in the federal regulations does it say that FDIC membership subjects an organization to the federal affirmative action laws? OFCCP has an FAQ that says that FDIC insurance is a contract, but there is no specific language to that effect in the affirmative action regulations. There are a number of people in the professional community who would argue that FDIC insurance is NOT a contract, but is instead something else (federal mandate or whatever) that does not bring an organization within the scope of the affirmative action laws.

    Something work checking with your attorney or professional advisor.

    Let's assume, however, that your organization is covered by the affirmative action laws. It is accurate that there needs to be an EEO clause in contracts, etc. The regulations regarding protected veterans and individuals with disabilities have very specific language in this regard. It is also accurate that this language is only required when your organization is dealing with a vendor that is supplying something necessary to the completion to your federal contract.

    Here's the problem most employers face: how do we structure our contracts and purchase orders to ensure we have the requisite EO language for all vendors associated with our federal contracts and only for these vendors? The answer most employers have come to is that it is easier to have the requisite EO language in all contracts and purchase orders rather than trying to segregate out the vendors who might be associated with federal work.

    I think your most important question here is the one about whether your organization is covered by the affirmative action laws. If you decide you are covered, then it's probably easier to include the EO clause in all contracts and purchase orders.

     
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