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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.
The 6.4% benchmark for 2018 is based on the national percentage of vets in the civilian labor force. We are able to establish our own benchmark based on data from the BLS (Bureau of Labor Statistics) and the Veterans Employment and Training Administration (VETS/ETA) as well as other factors (I am assuming this can mean geographical) that reflect our unique hiring circumstances. If anyone has their own custom benchmark set up, can you share the resource(s) you used to create the benchmark?
OFCCP recently announced that the new VEVRAA hiring benchmark has decreased to 5.9% effective March 31, 2019. For contractors choosing to develop their own benchmark, OFCCP provides some helpful resources on its VEVRAA Benchmark Database page, including the factors to consider as well as examples to illustrate the methodology for establishing the benchmark.
surveying EEO statuses before and after hire
Asked by Anonymous - Mar 25, 2019
Are we required to survey new hires (at orientation) for Race, Gender, Veteran, and Disability status since we also asked on the application?
The instructions for completion of the EEO-1 Report compel employers to report on ALL employees by race/ethnicity and gender. Since the government cannot compel your employees to disclose this information, the employer who doesn’t have it is required to make a “visual identification” of race/ethnicity and gender, a very uncomfortable task for most employers. In my experience most employees will voluntarily disclose this information.
The problem with the responses the employer receives during PRE-employment is three-fold: 1) Many people simply won’t tell you. Despite an employer’s covenant NOT TO USE this information in making any employment decision – AND YOU MAY NOT! – many job seekers simply don’t believe it. And at least with respect to questions about “disability”, if not all such information, job seekers/applicants may consider this to be highly personal information and disclosing it – particularly early in the process – not worth the risk that the employer will misuse the information.
2) The timing of the pre-employment survey also matters. If the employer solicits this information at the very beginning of its selection process it may get some responses from job seekers who, it turns out, don’t meet the advertised “Basic Qualifications” – information, frankly, most contractors would rather not have because IF they have it they have to provide it to the agency if the OFCCP were to ask, even for people who don’t meet the definition of “Internet Applicant”. If the employer doesn’t solicit the information until it must – i.e., from all “Internet Applicants” only, the employer is then faced with going back to people it has already eliminated from consideration to ask them to disclose. It’s expected that response rates from that group would be even lower and, possibly, less accurate if provided.
3) Responses from individuals prior to employment are more likely to be incomplete (e.g., disclosing gender but not race/ethnicity or vice versa) or untruthful. If the employer’s system doesn’t “lock” this element of the job seeker’s profile, individuals may even change their responses from one requisition to another – or one reporting period to another! [ESB NOTE: Because contractors rely on these data in preparing reports and analysis for the OFCCP most would really be unhappy to learn that the David Willoughby-MacDonald they reported as White in one analysis shows up as Hispanic in another! I strongly recommend that no job seeker/"Internet Applicant" be permitted to change this information once it is submitted the first time.]
Consequently, you may – OR MAY NOT – have the race/ethnicity, gender, veteran and disability information on all new hires that you think you have. And you need it! Further, while not specifically required to “survey again” for race/ethnicity and gender, you really SHOULD do so…and you might as well do it at the same time as you do the REQUIRED invitation/survey for veteran status and disability -- at the POST-OFFER stage. Since 2014 when the OFCCP introduced the concept of “goals/utilization” and of measurement of outreach efforts to the Section 503 and VEVRAA regulations, contractors are similarly regulated with respect to both pre-employment “invitations” to disclose such information and with respect to POST-OFFER solicitations of this information. I encourage you to look for helpful information from the OFCCP in its FAQs on these issues.
See Questions 7-9 in the OFCCP’s FAQs for Section 503: https://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm#Q10 and See Questions 6-7 in the OFCCP’s FAQs for VEVVRA: https://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm#Q7
On September 24, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs published a Final Rule in the Federal Register revising the regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) at 41 CFR Part 60-300 and revising the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741 . The regulations became effective on March 24, 2014.
The regulations require that contractors invite applicants to self-identify as protected veterans and as individuals with disabilities (as well as race and gender) at both the pre-offer and post-offer phases of the application process. The regulations require specific language for IWD self-ID. OFCCP recommends surveying the workforce for race and gender at the same time surveys are conducted for disability and veteran status.
Contractors are also required to survey employees for IWD status every five years, using the prescribed language.
Interview Evaluation Questions
Asked by Anonymous - Mar 21, 2019
Do you have any advice to provide when selecting interview evaluation questions? These questions will act as the interview feedback and ultimately show how we made our hiring decision for each applicant. The hiring manager and recruiter will be required to answer these questions and we are leading toward a yes/no format.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 24, 2019
I'm not sure what you mean by "interview evaluation questions," so please add some information in another question or reach out to LJN directly for additional help.
All questions by the hiring manager and recruiter must be consistent with the Uniform Guidelines on Employee Selection Procedures. The manager or recruiter should provide feedback from the interview regarding the (job-related and consistent with business necessity) information from the interview. The applicant is then dispositioned accordingly. It is a good practice to retain information on a decision not to hire as I believe your question contemplates.
Dispositions for Cancelled Jobs
Asked by Anonymous - Mar 20, 2019
I found a somewhat related question on this, but want to ensure I understand. If a job is cancelled, and there are applicants who have already been interviewed/dispositioned (considered for the job) should we change their disposition to job cancelled even if they were considered at one point? Or, should we include all who have been considered in our analysis and only change the disposition to "job cancelled" for the applicants who applied after the date the job was cancelled (since they were never considered)?
When we conduct adverse impact analyses, we are comparing the number of people hired to the number of people who applied for the position. If a position is cancelled, there is no hire. If there is no hire, there are no applicants. Thus, the disposition should be changed to "job cancelled" for all people who applied to that position, whether they were considered for it or not.
In your analysis and in any data reported to the OFCCP you must include ONLY "selections". Where a requisition is cancelled PRIOR TO MAKING ANY OFFER no "selection" has been made EVEN IF SOME HAVE BEEN “CONSIDERED”.
The three essential elements of unlawful discrimination are 1) DENIAL, 2) of an OPPORTUNITY, 3) ON THE BASIS OF gender, race/ethnicity. It's easy to lose sight of, but all we are ever measuring is what the employer did, who it did it to and why. That is true whether one is performing a statistical analysis for disparate/adverse “impact” or for the purpose of investigating the possibility of disparate treatment. The situation you have posited has no "opportunity". There was a potential opportunity but, ultimately, there was none. Consequently, NO ONE – “considered” or “not considered” – for that requisition should be included in your analysis.
You should not destroy these records, but you should have a disposition code that allows you to NOT REPORT/NOT COUNT in any analysis anyone who expressed interest in a requisition that was never filled. By the way, this is also the way you handle job seekers who expressed interest after a job was filled. No opportunity? No count and no analysis. In a perfect world an employer would have sufficient numbers of disposition codes WITH SUFFICIENT CONTENT in the codes to be able to distinguish between those applicants who were “considered” before the job was cancelled and those who were never even considered (The reason that would be “perfect” is that knowing everyone – hired or not – who took, for example, a lifting test) would make the analysis more accurate. But if your world is “imperfect”, the important thing is that you don’t “count/analyze" ANYONE if the job is cancelled. You must keep the records that have been made up to the point of cancellation but it would be a significant mistake to include ANY job seekers in an analysis of SELECTIONS when, in fact, nobody was selected.
The OFCCP confuses everyone about "Adverse Impact" does NOT mean "something bad happened”! It means that the employer's "neutral selection device" -- its "test" disproportionately excluded some group or another as compared to the most successful group. A "test" is something that measures -- or purports to measure -- the person's qualifications, his or her knowledge, skill and ability, if you will, to do THE job. I like to use the term "selection device" because most people think of a "test" as something written (such as a standardized intelligence or aptitude test) -- or performed, like a keystroke "test". But a “test” is also: "a degree in Chemical Engineering", "7 years of progressively more responsible supervisory experience", "a CDL" – or a “GED!” or, "must be admitted to the NC Bar". Or, more subjectively, a test might be an evaluation by the Hiring Manager that the person "has some skills that would add value to the team" or "applicant's skills only replicate skills already in the work group; I need some fresh ideas". Think of a "test" or "selection device" as something that was the BASIS OF the "go/no go" decision.
I find it helpful to think of a client’s selection process as a funnel. Potentially large numbers of job seekers come into the mouth of the funnel. Some of them are eliminated from the process fairly early because they didn’t follow one of your rules, for example. The application was submitted after the deadline or a resume was sent by snail mail when you require an on-line application be completed. So those people fall out of the analysis because your protocol means you never “considered” them. The meaning of “consider” is terribly important! [Quoting from an OFCCP FAQ: “The definition of "considers the individual for employment in a particular position" for purposes of paragraph 60-1.3 (1)(ii) of this definition means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.” ESB Note: observe that the rule says “qualifications” and “PARTICULAR POSITION”.]
The next job seekers to be eliminated from the process may be those who withdraw implicitly – that is, the employer is not able to contact them, either because the contact information provided doesn’t work or the job seeker doesn’t respond or, even such circumstances as the expression of interest is unreadable. Some others may fall not make it to the “assessment” of “qualifications” because, for example, they indicate on the application form that they are can’t work overtime or they only want day shift or they aren’t available to start work until they graduate in four months. If the terms and conditions of the OPPORTUNITY are mandatory OT, night shift until you can bid out to day shift or the employer is seeking to fill a vacancy NOW” such individuals are not seeking the job you have, the OPPORTUNITY; they want some other one. You haven’t “assess[ed] substantive information…with respect to…qualifications…”. You might find that these job seekers have primo qualifications but why would you even read past the first three lines if they don’t want THIS job. (ESB NOTE: Do you even ASK in your application questions about OT, shift and ready to start date? You should!) Treat these as withdrawals. And then, STRICTLY AN OFCCP RECORD-KEEPING RULE, the agency says you need count/analyze only “Internet Applicants” which are, among other things, only those that meet “Basic Qualifications”.
I think of this group of people, “Internet Applicants” as being those that are now just about to enter the “neck” of my funnel. The selection process is typically somewhat different from job to job. For example, typically there will be more assessments for higher level jobs than for entry level. So, the “neck” of my funnel is longer for Directors than for Laborers. But all the “tests” happen in the “neck” of my funnel…the assessments HR does, first of the application and then – of those that don’t fall out of the process at that point, perhaps a phone interview. Then the assessments the hiring manager does, whether of paper or interview(s). Maybe followed by a standardized test or a “panel interview”. With people passing some “tests” and failing others as they pass through the neck of my funnel. Some get offers, though they decline. AN OFFER IS A SELECTION! It may not be a “hire” or “promotion” but the result of the employer’s selection process sure to goodness isn’t a DENIAL!
Only SELECTIONS are reported and analyzed. And somebody has to come out the end of the funnel for there to be a “selection”.
Training Requirements for AAP
Asked by Anonymous - Mar 19, 2019
Does OFCCP have training requirements for the Females & Minorities AAP?
-Who needs to be trained - employees, supervisors, hiring managers, executives, recruiters? -What topics should be covered? -Is there a frequency requirement for employees to take training?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 24, 2019
There is no specific training time frame pursuant to the Code of Federal Regulations regarding the AAP for females and minorities for non construction contractors. However, it is required pursuant to the regulations covering veterans and individuals with disabilities. Also, the EEOC recommends that companies conduct annual training on equal opportunity principles and prevention of workplace harassment. The OFCCP often requires as part of its legal settlements that companies conduct at least annual training on these matters.
New Jersey Company w 1 new hire in CA
Asked by Anonymous - Mar 13, 2019
Hello, We are planning to bring onboard (covert a current contractor) to a Mechanical Engineer that will be located in Hawthore CA, working on our company's behalf on a customer site.
Our company is headquartered in NJ. The new hire currently resided in NJ. This new employee to be placed on CA site will spend the majority of his time in CA. Will fly to NJ once a month for no more than 5 days.
My questions: Based on this work schedule and location, will the new hire be considered a CA employee? What do we need to do as a Company to ensure we maintain compliant hiring processes? He will get per-diem and accommodation reimbursement when visiting NJ, correct?
I would advise that you check with your legal counsel to make sure you have the employee set up correctly as there are employee rights, worker’s compensation, and payroll tax issues involved here, to mention a few, which can vary by state.
From a payroll setup perspective, in the case you outlined, generally speaking, employees who perform work in multiple states, would need to pay non-resident income taxes in the work state (CA) and resident income taxes in their state of residence (NJ), unless the states involved have reciprocal agreements. As the employer, you have a withholding responsibility in both states where work is performed, even if you have no physical presence in the state.
As far as workers’ compensation is concerned, because coverage is state-specific and each state has their own requirements, you may want to check your policy to see if it covers operations in both states.
Of greater concern are the wage and hour laws and employee rights that apply. As a general rule, the laws of the state where the employee is physically working is the law that would apply to that employee, regardless of the state your company is located or based. It’s worth noting that California offers broader protections that go beyond federal and other states’ employment laws.
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.