You are currently not authorized to access this section.
Please contact your Administrator to change your authorization settings.
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.
Occasionally we will have employees respond 'Yes' to the Disability Self-ID form and then further specify their condition by either writing it on the form or by circling one already listed on the form. Due to the sensitive nature of medical information, we prefer that the specific condition not be included on this form.
Is it the employee's right to provide specific information on this form or may we ask the employee to submit a revised response form? If they refuse, can we white-out the specifics?
In our consulting work, we have seen a number of situations where an employee has disclosed a specific disability on OFCCP's self-identification form. It's always surprising when employees do this, but it happens more often than one might think (and certainly more often than OFCCP had expected).
The invitation to self-identify disability is just that: an invitation to self-identify. Thus, it's difficult to think of a situation where you should ask an employee to complete a new form if they provide unexpected information. While there is no specific regulatory requirement that says "You must keep a self-identification form in the exact condition that an employee submits it" in the disability regulations, it's also difficult to imagine a situation where it makes sense to white-out the specifics an employee provides. The employee is allowed to self-identify. The self-identification form makes it clear the employee can ask for accommodation if they so choose. If you accept a self-identification form and white-out any specific information, you may be in an awkward situation if the employee comes forward with an accommodation request and makes it clear the company already had knowledge of the specific nature of the employee's disability, but used white-out to erase that information.
The most important thing to do with self-identification form is to keep them separate from other personnel records. Self-ID forms should not go in the main personnel file nor into some kind of secondary personnel file kept by a manager or an HR rep. Self-ID forms should be kept in a secure place where they are not accessible to anyone other than persons who may need to see the self-ID form to provide accommodation or deal with a serious issue that arises at work.
41 CFR 60-741.42 says that "The contractor shall keep all information on self-identification confidential, and shall maintain it in a data analysis file (rather than in the medical files of individual employees)." It is not entirely clear what a "data analysis" file is, but it certainly is something different than the main personnel file or the personnel records kept under the general control of the HR department or an employee's supervisor.
Internal Hires and Applicant Flow
Asked by Anonymous - Mar 08, 2019
In our Plan, we count internal hires as promotions or transfers, not as new hires. When I hire an internal candidate for one of our requisitions, should I delete that requisition out of my applicant flow and all of the other applicants, both internal and external who applied to that req?
The short answer, Anonymous, is that a contractor may not destroy any employment record for so long as it is required to be maintained. To do so is, in itself, a violation of OFCCP regulations. The period of time items such as applicant and related records are required to be maintained varies, but since you are apparently speaking of a current record it would not be prudent to do what you ask. I know that's not very helpful but this is a more complicated question than you may realize.
I am currently finalizing an article for the OFCCP Digest, another valuable source of employer information on this site, that deals specifically with your issue. It will address what you should "call"/how you should "count" internal selections as well as address what I think might be another concern...whether a contractor MUST or even SHOULD post ALL jobs... particularly those for which it may already have identified an employee who it wants or intends to select, or one who is "in line" for the job.
I believe my article will be in the next issue of the Digest -- due out next week. If publication is delayed, I'll come back to your question and provide as much more information as I can in the space available. In the meantime, please don't delete the requisition or any other applicants from your "applicant flow" or any other data. There IS a better practice, I promise!
Mandatory Job Listings with an ESDS
Asked by Anonymous - Mar 06, 2019
We are a construction company that utilizes temporary agencies to help staff our manufacturing plants. Are the temp agencies we use expected to also follow the same posting requirements as we are as a Federal Contractor? I was referring back to the presentation that LJN put on last summer on Outreach Targeting Veterans, Individuals with Disabilities, and More, and trying to decide what role they play into all of this, and how much of the requirements the temp agencies have to follow. I know they already post to the State job boards, but not sure if there is more they need to do. Thanks!
The temp agency, acting as your agent, is essentially an extension of your company for compliance purposes, so all the obligations that attach to ensure non-discrimination and absence of disparate impact in selection and hiring, would also apply to them.
Because it is providing employees to work on your federal contract and these employees are on their payroll, your temp agency may also be considered by OFCCP as a subcontractor. The laws that OFCCP enforces apply to both federal contractors and subcontractors. As such, the obligations that the subcontractor should be performing will be no different than that of a prime contractor.
You are also encouraged to examine your relationship with your temp agency employees to make sure that a joint employment situation does not exist, under the Fair Labor Standards Act. Depending on factors such as who directs, controls, or supervises the work, and who has the power to hire or terminate the employee, determine work conditions and rate/method of pay, you and the temp agency may both be considered employers of the contractor, and OFCCP may hold you responsible for compliance, regardless of whether the individual is on your payroll or not.
Asked by Anonymous - Mar 05, 2019
Our university currently requires all postings to be open for a minimum of five days to the general public. We are considering extending the number of days to match other universities who range anywhere from 5 to 21 days. As an affirmative action contractor, we see the benefit of extended days as: more time for applicants to compose a thoughtful application; allows time to feed to job boards; gives job seekers at least one weekend to review, gives hiring teams the time to review the diversity of the pool; however, we have gotten immense push back from our stakeholders. Do you have any thoughts on whether opening the posting longer does support a better recruitment? It doesn't appear OFCCP has made an official statement on posting days. Do you have any advice, resources or content that we could use to support our position?
Excellent question. Providing more days for posting provides the best opportunity for reaching diverse candidates. It sometimes takes several days for a job announcement to reach a constituent group, so organizations need as much lead time as possible to reach potential candidates. Extending the time also allows you, the federal contractor, to assess whether the applicant pool is diverse enough to go forward with the next step in the selection process. More time may be needed to reach additional potential sources for qualified diverse candidates.
English Proficiency Minimum Qualification
Asked by Anonymous - Feb 21, 2019
We have a question regarding the presence of English proficiency minimum qualifications in job postings. Hiring units in our company have been requesting the addition of the following minimum qualifications to their job postings:
* Must be able to communicate effectively in English. * Must be proficient in English.
What are your thoughts regarding these types of English minimum qualifications? Are there circumstances where this type of requirement is appropriate? What limitations exist in the use of these minimum qualifications, if any?
You are absolutely correct in exercising caution. Employers should think twice and be very careful about imposing English fluency and English-only requirements in job qualifications and in the workplace, as this may constitute discrimination on the basis of race and/or national origin under Title VII of the Civil Rights Act.
“Generally, an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed. An individual's lack of fluency in English may interfere with job performance in some circumstances, but not in others. For example, an individual may be sufficiently proficient in English to qualify as a research assistant but, at that point in time, may lack the fluency to qualify as a senior scientific writer who must communicate complex scientific information in English.
Because the degree of fluency that may be lawfully required varies from one position to the next, employers are advised to assess the level of fluency required for a job on a case-by-case basis. Applying uniform fluency requirements to a broad range of dissimilar positions or requiring a greater degree of fluency than is necessary for a position may result in a violation of Title VII.”
Asked by Anonymous - Feb 19, 2019
We occasionally get new employees who give multiple responses on their EEO Self-ID form. For example, an employee recently responded as Hispanic and Two or More Races (not Hispanic). What is the proper way to record such responses for reporting on EEO-1 and AAP?
If an EMPLOYEE declines to disclose EEO-1 reporting information the employer is instructed by the government to make a visual identification. And you’re in the same boat if s/he has provided information you cannot use for reporting purposes.
Of course, employers are reluctant to make visual identifications and I have a feeling that employees wouldn’t be thrilled with it either -- if they knew. But I suspect that the most likely explanation for these unusable responses is that some employees really don’t understand the options. I’d suggest that someone in HR, preferably someone from your EEO Compliance Team, get in touch with such employees. Whether you do this by email, by phone conversation or face-to-face is a judgment call and should also reflect the culture of your organization. But you might begin with the message apologizing if the form wasn’t clear and that this is not an uncommon occurrence when one is dealing with a STANDARDIZED GOVERNMENT FORMAT.
NEVER HESITATE TO BLAME THE FEDS…this is THEIR format and, as a contractor, you are REQUIRED to ask specific questions and provide a specific and limited choice of options for replies. That’s the truth and “deflecting” to this third party may serve to make an uncomfortable situation more comfortable for both employee and employer.
You MAY be able to prevent some/many such situations if you deal with this issue universally, up front, and very matter-of-factly. I have typically advised clients to include in their solicitations OF EMPLOYEES (not applicants) the following paragraph: “As a federal government contractor we are required to solicit certain personal, non-job related, information from our employees. We’re required to keep records and to file periodic reports with the government by standardized gender, race and ethnic categories. We recognize that some employees will find these questions intrusive or otherwise objectionable and we regret giving unintended offense. If an employee declines to provide the requested information in the format required by the government, the government requires us to do what it calls a “visual survey”. We think self-identification is likely to result in the most accurate information. Nevertheless, providing this information is voluntary and there will be no negative consequences if you elect not to do so. This information is kept confidential and is never used in making an employment decision.
(I'm not able to "bold" or underline here -- hence all the capitals! -- but I would "bold" the last eight words of that last sentence.)
On my Model EEO Survey form, I reinforce/remind respondents of their “identification options” in this way:
Sex - in the government mandated categories below - Check One Only
__ Male __ Female ___ I decline to provide information on gender.
Race/Ethnicity - in the government mandated categories below - Check One Only ___ White, not Hispanic or Latino ___ Black or African American, not Hispanic or Latino ___ Hispanic or Latino (all races) ___ Asian, not Hispanic or Latino ___ Native Hawaiian or Other Pacific Islander, not Hispanic or Latino ___ American Indian, Eskimo or Aleut, not Hispanic or Latino ___ Two or more races, not Hispanic or Latino (for example, White and Black, or Black, Asian and Am. Indian) ___ I decline to provide information on race/ethnicity.
(I would also use boldface type for the phrases "in the government mandated categories below" and "Check One Only".)
When dealing with hard copy forms it was always a huge challenge to fit everything on one page. With the greater flexibility of electronic surveys, you could also add, “if you have any questions or want to discuss your completion of this form, please feel free to… [ask the HR team member doing your orientation] [call Sue Smith at Ext. 123] [stop by the EEO office located ____________ for assistance]", as appropriate.
That said – perhaps my most important and often repeated advice is – DO NOT MAKE POLICY BASED ON EXCEPTIONS! If unusable responses are only an occasional problem, I’d handle each in the simplest, most low-key way possible. In the case you describe I DO NOT recommend just picking one of the responses the employee gave, although I’d be willing to bet that “Hispanic” is the single answer that would be most accurate AMONG THE CHOICES you and the employee have. (It’s almost certain the employee didn’t understand that s/he had to pick just one and that if s/he has Hispanic ancestry to check that box will always be the answer the government was looking for). Call her up, explain as above -- don't forget to bring the government into it! -- and ask her if she would be willing to change her response. If she declines to do so, then I’d make the “visual survey”, MAKE A RECORD IN THE PERSONNEL FILE, with a copy to the EEO Officer, about who did the visual and why and, henceforth, record/report to the government in the race/ethnic category that you “visually” discern.
But because you can't handle applicants in this way -- and there are likely many more of them in comparison to employees that are providing unusable responses -- I would strongly suggest making modifications TO THE GENDER, RACE, ETHNICITY questions (only) that will emphasize "the government makes us do it", "choose one only" and "government mandated categories".
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.