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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.
Converting Student Interns to Regular Full Time Employees
Asked by Anonymous - Apr 13, 2018
We hire many student interns for our pipeline recruiting. They come back each summer until they graduate. They are kept on the payroll and come back each summer, some work on projects throughout the year. When we want to hire them permanently, do we need to create a posting for them to apply? It seems this would be discouraging for others who see this listing since we know we want to hire them. In addition, they initially competed for the intern position in the beginning and we have been developing them for several years. Currently we are posting these jobs, however it is creating extra work and we feel it is misleading to external candidates and to our internal employees when we already know who we want to put in the position, since we have invested a lot of time and money on these students throughout the years.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 14, 2018
No, you do not need to post those jobs. The posting requirement only applies when a company is hiring from the external pool. Since the interns are staying on the payroll and thus employees of the company, it appears that they would be undergoing a promotion or a transfer (from PT to FT perhaps). Positions filled internally do not need to be posted for external pools.
Posting Job that can hire a Manager or Director depending on experience
Asked by Abel D. - Apr 03, 2018
We are a federal contractor. What is a common, compliant way of posting a job that has flexibility to hire at a manager or director level depending on experience?
I would typically post at the higher level but notate in the job requirements that the position can be hired as a manager or director depending on the skills and experience.
There is no prescribed way for posting the job you described above. However, in checking with OFCCP, what you would want to make sure of if you post the jobs together and eventually hire at the higher or lower level depending on skills and experience, is that you do not inadvertently open the door for placement discrimination. This can happen if you end up with a situation where you have (a) intentional or unintentional steering/placement of female applicants (or minority applicants) into the lower paying job, and/or (b) the 10 most qualified applicants for the higher paying position just happen to be males (or non-minority applicants).
So as a best practice, you would want to set the minimum and preferred qualifications for each job level before applicants are known, and apply these uniformly. Using minimum qualifications is much “cleaner”, but obviously are more restrictive. If you are going use preferred qualifications in your evaluation, make sure these are quantifiable, job-related, and objective. You might also want to have each applicant indicate whether they want to be considered for one or both jobs and keep a record of this. This way, you are able to justify your hiring decision based on employee preference and employer qualification.
Staffing Agency-Required Notice & Compliance
Asked by Paige H. - Mar 30, 2018
We are a Federal Prime contractor & Sub-Contractor who places IT employees on Federal and State contracted projects. These are our employees working on a state or federal work site. Sometimes we must reach out to a staffing company to fill specialized positions when our sourcing/postings are not producing qualified candidates. I've been told previously that being a Federal Contractor, any staffing company or sub-contractor we use, whether for a Federal or State position, must be compliant with OFCCP guidelines when recruiting and also receive the required "our company is a federal contractor" notice.
Two questions: 1. If our state position pays our company with state funds, must our staffing/sub-contractor company follow OFCCP guidelines and also receive the required notice? 2. If so, do we need to require them to send recruiting documentation or just have it available in case of an audit?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Mar 30, 2018
This one is a little complicated to answer without knowing the facts I’m more detail. However, I hope The info below is helpful as a guide.
1. If the individual is an employee of a company that is a federal Contractor or subcontractor, then the company must follow the OFCCP regulations, including ensuring that the proper clauses are a part of the subcontracts. When it is unclear due to the facts whether this language is required, it may ultimately come down to how your company feels about risk if your company and the OFCCP disagree - that is, would the company want to litigate the matter. From the facts above, it is likely that the company would want to include the language.
2. The company is responsible for the AFL and hires (or candidates, if the agency sends a few potential employees from whom to choose). It’s important that the agency use ONLY the hiring criteria given by your company, and not additional criteria. It’s important to request the applicant and hire data so that your company can run the required analyses, to prevent surprises an audit. The regulations state that using a third party agency does not exempt the company from non discrimination obligations, so it’s best to ensure the company understands what’s going on with the data at the hiring agency.
Confidential Search Recommendations
Asked by Anonymous - Mar 22, 2018
I'm looking for guidance on a delicate subject: confidential searches. For Sr Management and Executive level roles I know we're okay to not post them, but what are the recommendations for lower level confidential searches (i.e. there is an incumbent in the role)? We address the incumbent's performance issues as an employer but ultimately know we'll need to replace them and don't want to advertise for obvious reasons.
OFCCP does not have specific guidance on confidential searches. Absent that, OFCCP will look at it the same way as any other job you are required to post. You still have an obligation to post it. You may have a search firm post it for you to the local ESDS and you will need to provide proof of that posting as well as a record, such as an email exchange with the search firm and the two job descriptions, showing that this job posting is for your company’s job.
Acquired Employees for AAP
Asked by Anonymous - Mar 13, 2018
We've acquired a smaller company and will be retaining some of their employees. In an older post, it is stated that there is little guidance on how to handle these situations yet most companies choose to treat acquired employees as new hires. However, in our HRIS they will retain their seniority dates from prior to the acquisition.
Is it still best to categorize them as new hires or would it be better to simply list them in the employee population? Would the latter cause a disconnect with our previous plan year, since these employee's would 'magically' appear in the population? Could it be simply noted that they are acquired?
Additionally, are we responsible for collecting and including the acquired organization's applicant data for our AAP?
In checking with OFCCP, there doesn’t seem to be a prescribed method to handle this. Treating them as hires, transfers, or simply listing them, are all acceptable. The important thing is that the contractor should be able to explain the data and what happened. Each method presents its own challenges as you already stated.
You are correct that simply listing them would not align with the employees from your previous plan year, but that is explainable. Treating them as hires will have its own challenges as you may end up mixing two different applicant pools. For example, if your sales team from the other company is comprised of 9 males and 1 female, and in addition to acquiring all 10 employees, you also hired 1 male and 1 female from an applicant pool of 20 males and 20 females. You have actually selected at an equal rate; but it will look like your selection rate is 50% for males (10 hires from 20 applicants) and 10% for females (2 hires from 20 applicants). So you will need to refine your data to identify distinct groups in your applicant pool, and explain what happened.
OFCCP might also look into the employees you retained from the acquired company and how you selected which employees to retain. So make sure that you keep records documenting your selection process.
OFCCP Linkage Agreements
Asked by Chris G. - Mar 06, 2018
Does Local Job Network satisfy 1 of the 3 required “linkage agreements” required by OFCCP for compliance?
OFCCP may specify in a conciliation agreement that a contractor enter into a linkage agreement with certain organizations. However, outside of a conciliation agreement, there is no OFCCP requirement to have formal linkage agreements with organizations. The requirement under E.O. 11246, VEVRAA, and Section 503 is to conduct outreach to community-based organizations that can help you recruit and hire minorities, women, IWDs, and veterans. There is no requirement as to the number of organizations a contractor should reach out to, as what matters more is the effectiveness of these recruitment sources in referring qualified candidates for your open positions that will help you meet your affirmative action goals. OFCCP requires that contractors analyze their outreach efforts on an annual basis to see which efforts are working and which efforts are not as successful, and then take other measures to bring applicants into the applicant pools to increase the representation of women, minorities, veterans and individuals with disabilities in the contractor’s workforce. What works for every company will be different, so you will have to look at which organizations and outreach strategies work best for your needs.
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.