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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.
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...
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 process is to require candidates to apply online after posting an opening, then there should be some well defined reason for deviating from this process.
One way to think about this situation is to consider it from the perspective of someone from a governmental agency who may be asked to determine whether your hiring process discriminated against some protected class. The representative of the government agency is going to want to compare the credentials of candidates who expressed interest against the credentials of candidates who were hired, and is going to want to understand how your selection process worked and who was involved in the process. If hiring managers are allowed to deviate from your standard selection processes and make offers to people on the spot at your in person hiring event, they will need to be able to clearly state why the persons selected are more qualified than others. A governmental representative will not accept the idea that the pressing need for people allowed you to hire demonstrably less-qualified candidates.
If you still want to do an in person event and you don't want to make people go home and apply online, then you may want to consider having kiosks available at the event so that people can apply while they are there. That way, at least you'll have collected all the information you need to determine who the best qualified candidates are. Then, if you want to tell some candidates that you are seriously considering them for hire, you'll be able to quickly look at the qualifications of other candidates to ensure you are hiring the best qualified people.
I understand the need to quickly hire people when you have pressing business. From a compliance perspective, though, it's important to recognize that the government will always expect that you can prove you hired the best qualified person. Making offers on the spot has the potential to leave you vulnerable if you can't provide this proof.
Bid and Proposal Job Posting
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.
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 actual openings, but is advertising potential openings, so it does not appear as if the listing requirement is yet triggered. However, if the company were to collect applications to consider for positions if the bid was won later, then I would recommend the company list the jobs at the bid phase consistent with the regulations, so that the company is not inadvertently circumventing the rules.
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?
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 its obligations for compliance are like that of any covered contractor. Depending on the amount of the contract, of course, they must comply with the laws enforced by the OFCCP. This provision in the regulations puts the entity on notice that they are a covered subcontractor.
Multiple Quantities Needed or Same Position
Asked by Anonymous - Aug 08, 2017
Are there any vulnerabilities with the following practice for when multiple quantities of the same position are needed:
Opening and posting one (1) requisition that has five (5) openings. Once five candidates have been identified from this candidate pool, opening four other additional requisitions, duplicating the candidate pool from the initial req in these additional reqs, and then dispositioning one of the five initially identified candidates into each newly created req as "hire."
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 08, 2017
A company may hire more than one individual from a requisition. Four new requisitions need not be created for OFCCP compliance. It is a good thing to establish what will happen up front as you have done. The appropriate analyses are to compare those that competed for a position (depending on how the company does its hiring) against each other. Therefore, since there were five hires from the pool, those applicants should be used in any comparative analyses versus conducting analyses by requisition. There is nothing inherently wrong or dangerous of the practice outlined above, but it may impact how the analyses should be done (by applicant pool versus using a requisition system). Make sure to run your annual analyses using the method that captures the appropriate pool (i.e., analyses by requisition or using a combined pool). If you have very large numbers (a high turnover in jobs for example), a statistical result sometimes appears simply because of the large numbers. Foregoing a proper requisition practice could require the company to analyze a larger pool.
Single Requisition with Multiple Hires
Asked by Anonymous - Aug 08, 2017
How are single reqs with multiple hires scrutinized by the OFCCP? For instance, instead of opening five requisitions with the same title, level, requirements, etc. opening only one req with five openings? The latter options would obviously help with recruiter load and help streamline the hiring process but does potentially enlarge the candidate pool and/or is looked unfavorably the OFCCP in an audit?
OFCCP is perfectly happy to have large applicant pools where multiple candidates are hired into an applicant pool. It increases the chances there will be some kind of disparity involving members of a protected classification, which is one of the things that OFCCP seeks during compliance reviews.
There is no OFCCP rule that says companies can't hire multiple candidates into one requisition. Thus, in your example above, you can hire five individuals into the same requisition. However, good practice says that if you're going to hire more than one individual into a requisition, the qualifications for each position should be exactly the same, and all candidates hired into the requisition must meet the qualifications associated with that requisition. In your example, you indicate that individuals would be hired into the same title and level with the same requirements. Thus, hiring multiple people into this requisition may make sense. However, be aware that if you have four persons hired into exactly the same position and a fifth person who is hired into a slightly different position, you may need to spend many hours justifying why the fifth individual was hired into a different position.
In considering whether to hire multiple people into one requisition, there are factors other than the ones you name above that may be important to consider. One of these factors is timing. If you recruit and hire three people in winter, and then recruit and hire two more individuals in fall, you may effectively have two separate applicant pools. Location is also important. If you have five of the exact same openings, but two are in Dallas and three are in Boston, you may effectively have two separate applicant pools. There are other factors that may affect whether your applicant pools are, in fact, identical for your openings within a requisition.
I hope this is helpful. Best of luck with your openings.
Verbal Expression of Interest - Internet Applicant Rule
Asked by Anonymous - Aug 08, 2017
If a candidate applies to a requisition, is not qualified but expresses interest in a different open requisition, would their verbal expression of interest be enough for the recruiter to consider for the second requisition? That is, would a recruiter not have to ask the candidate to apply to the second requisition if they verbally expressed interest and how does this affect their status under the internet applicant rule?
Your company has the right to make the decision that candidates may verbally express interest in an open position. It is not a best practice for the reasons noted below, but there is nothing in OFCCP's Internet Applicant rule or any other part of the federal affirmative action regulations that prevents a company from having candidates make a verbal expression of interest.
Among the reasons that allowing a verbal expression of interest is not a best practice are the following:
-A verbal expression of interest may violate your standard practice (and perhaps your standard requirement) that in order to receive consideration, a candidate must make written application. Most companies now do, in fact, have such a requirement. By allowing one candidate to receive consideration after violating such a requirement, OFCCP may be suspicious of any requirements you put in place to limit the number of candidates who receive consideration. OFCCP would certainly be suspicious of any attempt by your company to say that candidates must apply through a defined process to receive consideration if you allow undefined exceptions to that process. -A verbal expression of interest will likely require your recruiter to move the candidate's credentials from one requisition to another. We very strongly discourage organizations from having recruiters move a candidate's credentials between requisitions. It muddies the issue of who applied for particular requisitions and it potentially makes large pools of candidates who expressed interest in one requisition into viable candidates for the second requisition. In this situation, there IS an expression of interest, so your company could argue it is valid to move the candidate's credentials between requisitions. However, it may be difficult to PROVE to OFCCP why this particular candidate's credentials were moved unless you have written documentation about the verbal expression of interest. -It's going to be difficult to explain to OFCCP what constitutes an appropriate verbal expression of interest. The situation is easier if a candidate says "I'm glad to be considered for the opening where I formally expressed interest, but I saw a separate requisition and I'd also like to be considered for that." However, what happens with the candidate who says "I'm glad to be considered for this job, and I'd like to be considered for this kind of opening in the future"? What happens with the candidate who says "I'm glad to be considered for this job, and I'd like to be considered for similar jobs in the future?" Your company has the right to define what would constitute an appropriate verbal expression of interest, but it may be difficult to create such a definition.
Frankly, it's just simpler to tell the candidate who verbally expressed interest to use your open position to use your regular process to express interest in the second opening. This saves you from the multiple headaches associated with showing that your company (a) allows appropriate verbal expressions of interest from candidates within all protected classifications and (b) clearly defines which candidates properly expressed interest in open positions including the candidates who verbally expressed interest.
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.