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.
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  • Asked by Anonymous - Aug 24, 2017

    When employees decline to identify as a gender, must a visual be made in order to report these employees for EEO-1 and AAP purposes?
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Aug 24, 2017
    No. The regulations at 41 CFR 60-1.12(c) states "where possible" the contractor must be able to identify gender (see below).
    Additionally, OFCCP Directive 283 says a contractor "may" use visual observation for race, but it is not required (see below):

    41 CFR 60-1.12
    (c) Contractor identification of record. (1) For any record the contractor maintains pursuant to this section, the contractor must be able to identify:

    Answered by Bill Osterndorf from HR Analytical Services - Aug 24, 2017
    I think Marilyn has provided some useful information. However, there appears to be some divergence in opinion on a question you didn't ask, which is this:

    When employees decline to identify a gender, are we allowed to show them as "unknown" in reports to EEOC and OFCCP?

    On that point, EEOC has provided the following response regarding race/ethnicity which can be found at https://www.eeoc.gov/employers/eeo1survey/sample_self_identification.cfm:

    "All employees must be accounted for. There are no "OTHER" or "UNKNOWN" race/ethnicity categories."

    It seems clear that if an employee must have a known race/ethnicity, the employee must also have a known gender.

    While OFCCP...

  • Asked by Theresa C. - Aug 22, 2017
    I sent out our vendor letters in compliance with OFCCP to all our subcontractors, suppliers and vendors. I got a call back from a Canadian supplier who says it does not apply to them because although he is a US government contractor, there is no AA requirement in Canada. I got a response back from another Canadian supplier with answers to the questions. Should I be sending the letter to suppliers outside of the US? Do they need to comply with the items outlined?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 25, 2017
    The compliance requirements enforced by OFCCP apply only to companies, vendors, suppliers, etc in the U.S.
    Answered by Alissa Horvitz from Roffman Horvitz, PLC - Aug 31, 2017
    The question prompts a three-part reply:

    First, what is the OFCCP regulatory requirement to send out letters, and to whom?
    Second, does the OFCCP’s jurisdiction extend to companies outside the United States?
    Third, why might some Canadian suppliers choose to respond?

    First: The OFCCP’s Regulatory Requirement

    In both the veteran and disability regulatory requirements, there is a mandatory obligation to engage in external-facing tasks, specifically: external dissemination of policy, outreach and positive recruitment. The legal citation for this obligation is found at 41 C.F.R. Section 60-300.44(f)(1)(ii)(veteran regulations), or 41 C.F.R. Section 60-741.44(f)(1)(ii)(disability regulations).

    The sending out of letters is required...

  • Asked by Anonymous - Aug 21, 2017
    We are considering use of an external resume database for some of our positions. Job seekers would then be invited to apply to the position through our website.

    If a search returns 30 job seekers (which are all considered by assessment of their resume and all meet the basic qualifications of the job), I understand that all of those resumes must be retained. However, are we required to also invite all 30 job seekers to apply? Or may we be selective in who receives an invitation? Could we also choose to not invite any of them?

    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Aug 24, 2017
    You are not required to invite any of them to apply, and you may restrict your invitations to a select few....
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 25, 2017
    They are all applicants in your scenario, unless excluded for another reason (i.e. self-select out)....

  • Asked by Anonymous - Aug 10, 2017
    We are looking to do an in person hiring event and our leaders would like to do on the spot offers/letters on intent to hire at this event. While we encourage everyone to complete an online application, we are opening this event up so I imagine we'll have interested candidates show that may not have an application on file.

    Can you offer any guidance on the best way to handle this type of event? Or any resources that may help? Or is it ok to have a contingency letter drafted saying we are interested and want to move forward with you if you meet all the outlined qualifications...
    Answered by Bill Osterndorf from HR Analytical Services - Aug 21, 2017
    The simple answer to your question is this: you should always make candidates follow your standard process for expressing interest. If you generally require that candidates complete an online application, then you should ask candidates who are at your hiring event to complete the online application.

    It's not clear from your post above why you are doing "an in person hiring event," and why this would necessitate making immediate offers to candidates. There certainly are circumstances in which companies want and need to make immediate hires. For example, if you have a huge new order for products or services that requires you to immediately add employees, an in person hiring event may make sense. However, if your company's standard hiring...

  • Asked by Kayla S. - Aug 10, 2017
    We frequently post positions to engage candidates for future opportunities associated with bid and proposal activities. These positions could be located all across the United States. Is it necessary to add a new ESDS location/state each time you post a position that is not yet a live job opening?

    If these bids were won, the opportunities would become official job openings working in the state the position would be advertised in.

    I would appreciate any guidance on this matter.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 10, 2017
    The regulations require "employment openings" to be listed with the state employment service. It sounds like, from your description above, that your company is not advertising...

  • Asked by Richie F. - Aug 08, 2017
    In regards to notifying our subcontractors of our status as a federal contractor under the AAP this is a snippet of what I sent out to them:

    "Our records indicate that you have provided goods and/or services to us according to established regulation thresholds under Section 503 of the Rehabilitation Act, as amended and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), as amended. Therefore, please be advised that your organization must also comply with the rules and provisions as specified by the US Department of Labor, Office of Federal Contract Compliance programs at CFR, Title 41, and Part 60-300 and 60-741.

    We appreciate your support of our commitment to equal employment opportunity and request appropriate action on your part."

    What exactly are their responsibilities? What "appropriate action" do they need to take?

    I just want to know in case they ask.

    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 08, 2017
    If the company is a covered subcontractor (i.e., they are doing business with a federal contractor or subcontractor), then...

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