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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.
There is specific language found in the revised veteran and disability regulations. However, OFCCP has also issued several FAQs in this regard. The response to FAQ 38 for the revised veterans regulations (which has a parallel response in the disability FAQs) reads as follows:
"Are federal contractors permitted to combine all of the Equal Opportunity (EO) clauses required by 41 CFR 60–300.5(a), 41 CFR 60–741.5(a), and 41 CFR 60–1.4(a) (or for construction contractors, 41 CFR 60–4.3(a)) into a single, consolidated “incorporation by reference” clause?
Yes, contractors may combine all of their required EO clauses into a single “incorporation by reference” clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO “incorporation by reference” clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:
This contractor and subcontractor shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status."
Note that the clause above must be in a bold font when used in purchase orders and contracts.
As of today (April 24, 2018), federal contractors and subcontractors are also required to insert language related to Executive Order 13496 into contracts and purchase orders. There is no prescribed language in this regard, and the language does not need to appear in bold print. Here is one suggestion for this wording:
"This contractor and subcontractor shall abide by all provisions of Executive Order 13496 and all relevant rules, regulations, and orders in regard to Executive Order 13496."
Is Discharge for Discussing Pay a Valid OFCCP Cause of Action?
Asked by Anonymous - Apr 18, 2018
I am involved with a company that had an OFCCP complaint filed against them by a former HR employee. The employee had been fired for using her access to other employees' salaries to seek a raise for herself. She accessed this information without requesting any permission from either the individual employees whose information she accessed and without the approval of her superiors. The company has been informed that they were within their rights to fire the employee due to the exception for discharging HR employees (or payroll EEs) who have access other employees' salaries and use that access without permission or approval.
However, now the former employee has filed a retaliation complaint with the OFCCP, alleging that the company's stated reason for firing her was just a cover and she was actually fired for discussing her pay. Her complaint has no reference to pay discrimination based on race, sex, or veteran status. Is this a valid cause of action that the OFCCP would address or provide relief for?
It is unusual for OFCCP to receive or investigate individual complaints. Most OFCCP actions are an outgrowth of an affirmative action compliance review rather than an individual complaint.
With that said, OFCCP does have the right to investigate complaints regarding violations of its regulations, and applicants and employees do have certain protections regarding the discussion of pay under the agency's revisions to the Executive Order 11246 regulations. These revisions are an outgrowth of Executive Order 13665, which is titled "Non-Retaliation for Disclosure of Compensation Information". (The regulations themselves, interestingly, are titled "Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions." They can be found in the Federal Register at https://www.gpo.gov/fdsys/pkg/FR-2015-09-11/pdf/2015-22547.pdf.) Regardless of what they are called, the revisions to Executive Order 11246 prohibit federal contractors and subcontractors from taking action against applicants or employees for discussing pay. The relevant language is as follows:
41 CFR Section 60-1.4(a)3: "The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information."
Note that not all discussions about pay are protected, and it appears your situation may fall into one of the exceptions to the prohibition against taking action for discussion pay. The important language in the federal language for these purposes is as follows:
41 CFR Section 60–1.35: Contractor obligations and defenses to violation of the nondiscrimination requirement for compensation disclosures. (a) General defenses. A contractor may pursue a defense to an alleged violation of paragraph (3) of the equal opportunity clauses listed in § 60–1.4(a) and (b) as long as the defense is not based on a rule, policy, practice, agreement, or other instrument that prohibits employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants, subject to paragraph (3) of the equal opportunity clause. Contractors may pursue this defense by demonstrating, for example, that it disciplined the employee for violation of a consistently and uniformly applied company policy, and that this policy does not prohibit, or tend to prohibit, employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants. (b) Essential job functions defense. Actions taken by a contractor which adversely affect an employee will not be deemed to be discriminatory if the employee has access to the compensation information of other employees or applicants as part of such employee’s essential job functions and disclosed the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, and the disclosure was not in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the contractor, or is consistent with the contractor’s legal duty to furnish information."
It is possible OFCCP will take the position that your former employee was not acting improperly if she did not share the pay information with others and you do not have a policy that explicitly prohibits HR employees from looking at the pay of other employees. That will be something you should be prepared to discuss during this OFCCP investigation.
You asked whether the former employee needs to have her retaliation claim based on race, sex, veteran, or disability status. The answer here is "no." The prohibition against retaliation for discussing pay is decoupled from the traditional protected classes that are the usual subjects of an OFCCP investigation.
You may want to have a conversation with an attorney who is very familiar with OFCCP laws and regulations about the complaint that has been filed. The pay secrecy rules (also called the pay transparency rules) are relatively new and the situation you discuss above is potentially a complicated situation under these regulations.
GAIN/ GROW programs in Los Angeles County
Asked by Karen E. - Apr 18, 2018
Is there an available state workforce agency listed that participates in providing participants in the Los Angeles County's Department of Public Social Services (DPSS) Greater Avenues for Independence (GAIN) or General Relief Opportunity for Work (WORK) Program? We are being asked to be willing to consider GAIN/GROW participants for future employment openings, if they meet the minimum qualifications for that opening. I did not see these programs listed in the Local Job Network. If it's possible to add, I would like to have Linkage Agents set up to ensure that our positions are sent and reported.
We are pleased to let you know that LocalJobNetwork.com does have partners in Los Angeles County who work with the GAIN/GROW programs in the area. We have a contact at the GAIN/GROW Program Desk, as well as a general contact at the Department of Public Social Services. To reach out to these contacts, please login to your LocalJobNetwork.com account and you will be able to find them in our Outreach Management System by using the search words "Department of Public Social Services". Feel free to give us a call if you need additional assistance.
Voluntary Self- ID of Disability
Asked by Megan K. - Apr 17, 2018
We are re-surveying our workforce using the voluntary self-identification of disability form. We are looking to create our own electronic version of the form to more easily survey our employees. We have the requirements in regards to font, size, OMB number, expiration date, etc. However, it says the forms contents must not be altered.
My question is, is it acceptable to have the whole form on one page on our electronic survey? Or must we have it on two pages like the actual paper version is? (i.e. the reasonable accommodation notice is on the second page)
It should be acceptable to have the survey on one page. OFCCP's primary interest is in ensuring that the entire contents of the survey is maintained. The fact that it is two pages in a printed form is a function of the fonts used, the amount of content included, and so on rather than a function of the desire to have a two-page form.
If you want to be entirely safe, you could include the headers above the section of your electronic form with the reasonable accommodation notice. (By the headers, I mean the title "Voluntary Self-Identification of Disability" and the information on the upper right of each each page.) However, so long as you keep all of the original contents of the survey form, you shouldn't have a problem even if the second page headers are omitted.
I will note that the fact OFCCP SHOULD accept this approach won't necessarily stop some compliance officer from raising concerns about any reformatting you do. However, this is one of those times that a call to a district director, the regional office, or the national policy office should allow you to do what you have suggested.
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.
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.