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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.
Oftentimes in my organization we will be waiting to hear back from a Hiring Manager prior to sending them a new batch of qualified resumes. For example, we may have 5 new applicants for x position, so we review them to see if they could be a fit. However, if we sent the HM 3 resumes a day or two prior, we would want to hear back about those before sending new ones.
What is the best way to approach this to be compliant? Right now, we are leaving opened resumes in our "New" status and rejecting those which do not meet our basic requirements. The next step we have outlined is "Hiring Manager Sent". We were considering adding a new status code, and are interested in hearing your thoughts.
Federal contractors may use data management techniques to manage large applicant pools. This is especially helpful for jobs that attract a high volume of applicants, and allows the employer to set a predetermined number of applicants to be reviewed. For example, the company might have a policy that only the first 50 applicants who expressed interest in the position will be considered, or every fifth person to apply to the position, or all applicants who apply by a certain date. The company can also consider the first 50, and if there is no viable candidate from that batch, move on to the next 50 applicants.
The operative word here is the term "considered." Data management techniques are not dependent on an assessment of qualifications. They are facially neutral and only those applications that fall within the stated parameters are reviewed. If your recruiter reviewed the next 5 applicants, then they have been considered. So, you might want to hold off on reviewing the next batch of applicants until you have dispositioned the applicants in the first batch sent to the hiring manager, or otherwise risk having applicants from both batches included in your applicant pool.
Asked by Jennifer L. - Dec 13, 2018
We always try to bring interns/co-ops back for multiple terms and often try to get their commitment before they leave to go back to school well in advance. Given that, is there any requirement to post once they have joined us once for additional internships/co-ops?
The obligation to post your positions with the ESDS per the VEVRAA mandatory job listing requirement, applies to all payroll positions, with the exception of senior management positions, internal positions, and jobs lasting three days or less.
If the intern position is on your payroll, then you have an obligation to list the position when you first hire the intern. Unless you have terminated their internship, and subsequently from your payroll, if they come back for multiple semesters, there is no need for you to re-post their position.
Job Application Statement of Accuracy Compliance
Asked by Chelsea B. - Dec 13, 2018
We are currently updating our company's job application with a 'Statement of Accuracy' at the end, basically stating that all information is correct, this application doesn't guarantee employment, etc. etc. etc. We have the option to just select 'Yes' from a drop down when asked this question, OR select 'Yes' AND type their name. Does anyone happen to know if it is required to write your name, or if clicking 'Yes' would suffice? we just want to make sure that we are following correct protocol and staying in compliance.
Depending on your state location, it may or may not be acceptable. There may be certain laws in your state that require that the applicant initial the certification or write in their name. Many states have state-specific laws on various aspects of information that are requested on an employment application as well as required disclosures. So be sure to check that your employment application complies with the employment law in your state or jurisdiction. If you are a multi-state employer and using a universal application, make certain that you are segregating and including the requisite state disclosures and prohibitions.
It’s best practice to have your legal counsel review whenever you make changes to your employment application, giving special attention to areas such as criminal history, credit reporting, information requested, and required disclosures.
Dispositions Best Practice
Asked by Anonymous - Dec 05, 2018
I watched the documentation best practice webinar. I have a question about dispositions. Is it best practice to reject candidates based only on their resume? Or should we have application questions that clarify by self report if an applicant does or does not meet minimum qualifications?
Do you truly mean “MINIMUM qualifications” – as distinguished by law (OFCCP regulation 41 CFR 60 – 1.3, within the LONG definition of “Internet Applicant”) from “BASIC qualifications”? Since you made reference to the documentation webinar, I’m going to assume you mean BASIC qualifications. BIG difference! [A difference that really matters for purposes of certain record keeping obligations is the duty to solicit race, sex and ethnicity information, in general for government contractors, only from those who meet the definition of “Internet Applicant” – which may be a small percentage of the masses of people who need only “press a button” to apply for each job. This is also a difference that really matters with respect to the annual analysis of selection decisions that a contractor must prepare and must submit to the OFCCP in response to a notice that the establishment has been selected for a compliance review.]
“BASIC qualifications are those which the agency summarizes as “…noncomparative, objective and which are relevant to the particular position [filled]”; they must also be “advertised or established in advance [of making any selection decisions for the particular position”]. The agency also provides a number of helpful FAQs on its website. With specific reference to “Basic Qualifications” see https://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm#Q1BQa. As distinguished from “BASIC qualifications”, a contractor’s “MINIMUM qualifications” might include, for example, a passing score on a pre-employment test whereas the definition of “BASIC” qualifications specifically EXCLUDES such tests (whether on line or administered on site) from that term. Basic qualifications also EXCLUDE those that are “comparative” (e.g. “must be one of the top five applicants”) and/or “subjective” (e.g. “must be ambitious”). And while these examples of “MINIMUM qualifications” also do not have to be ADVERTISED in advance they certainly can be. And, as a practical matter, basic qualifications must be ESTABLISHED in advance (and communicated to all the individuals who evaluate job seekers’ qualifications!!) or the employer is almost certainly going to treat job seekers differently as it goes thru the assessment process day after day, perhaps week after week.
There are other elements for which information will only be available to the contractor if it asks…it’s not going to be on a resume... that MATTER when it comes to triggering recordkeeping and analysis requirements. For example, “date available to start work”. If the contractor has a job it advertises in February and needs to fill quickly, it will not be able to do an early elimination from the screening process – regardless of qualifications –of the person who won’t be available until August UNLESS IT ASKS THE QUESTION up front and before making a substantive assessment. Similarly, unless it compels each job seeker to COMMIT to identifying a specific position (or positions) for which recruitment is underway the contractor has created for itself significant additional record keeping hurdles and analytical integrity issues: for which “particular” position was the job seeker’s “basic qualifications” assessed.
As to the specific “basic qualifications” – as well as other elements of a resume – the contractor is much more likely to learn what it wants to know versus what the job seeker wants to tell you if it asks specific and pointed questions: “how many years…”, “how many dollars in budget responsibility…”, “how many employees supervised”; “did your college course work include a study of fiber optics”, “Have you ever had final responsibility for preparing your department’s budget? When?”.
Furthermore, there are other elements of a definition of “applicant” – Internet or otherwise – that aren’t a part of the “qualifications for a particular job” assessment, including whether the job seeker's resume/application/on-line application is even legible. Sometimes it is not…an assessment can’t be made because the document or record simply isn’t legible/readable. (While infrequent, system failures can also "mangle" a record to illegibility) The contractor needs a disposition code to “dispose of” such a job seeker who might – as it turns out in court – have superior “basic qualifications – the employer simply couldn’t decipher what they were!
Or the job seeker is an employee who has not been in his or her current position long enough, or whose absenteeism is unacceptable, to be eligible for consideration. This isn't an assessment of the person's skills, knowledge or ability to do the job -- any more than "legal to hire" -- is such an assessment; it's simply the employer's rule -- or the law as the case may be. Use a discrete disposition code to make it easy to exclude such individuals from data which are captured for any discrimination analyses.
Asking questions about “availability” FOR THE PARTICULAR POSITION is the only way to find out if the person is truly seeking the job you are trying to fill! “Are you willing to work occasional overtime?”; “Are you available for frequent overtime?” “Are you willing to travel for periodic work at another company location?” “Do you have a preference for shift (Day, Afternoon or Night)?” Is there any shift you do not wish to work for whatever reason (Day, Afternoon or Night)?” Obviously, there is the potential for “disparate impact” as well as disparate treatment with respect to such terms and conditions of a job. But if treatment is consistent and the requirements of the job or the nature of the specific open requisition include shift work, travel, overtime then it is best to flush out early those persons who will be rejected or who will explicitly withdraw later.
Soliciting such information from job seekers in addition to the information they provide on resumes will save the employer wasting its time or the job seekers’ time processing resumes – or even conducting interviews – with job seekers with whom it does not have an authentic “meeting of the minds” about what job s/he really wants. This is but one example of what I call a “realistic job preview” which also includes telling people up front what the lifting requirements of the job are (the ACTUAL PHYSICAL ones, of course) or the exposure to dust or cold/hot temperatures. I’ve known recruiters for whom it was anathema to tell job seekers the “dirty details” up front…somehow they believed they could always talk someone into taking a job that was at odds with people's very real preferences or needs. Based on my experience, I don’t agree at all – and I’m certain that such persons, if they come to work at all, are not long retained -- and we start the process all over.
To sum up, it is ALWAYS a “best practice” to use a disposition code that is as accurate as possible in describing “what happened”. Consequently, MORE are definitely BETTER.
It is also always a “best practice” to pare down the number of “applicants” who must be included in any discrimination analysis BECAUSE THEY WERE “CONSIDERED” (that is, an assessment was made of BASIC QUALIFICATIONS) for selection into a particular position. The larger the number of persons in a discrimination analysis the more likely it is that differences in selection rates will be statistically significant for one or more races/ethnicities and/or for gender. The more people NOT selected, the more potential victims in an alleged “class” and, ultimately, the greater the financial risks.
Managing numbers – while still ensuring there are enough qualified persons in any applicant pool to make a good selection decision – is an important compliance strategy. And being able to COUNT THE RIGHT NUMBERS based on accurate disposition coding is critical.
For more info and recommendations on the use of disposition codes you might want to read my articles in the May and June 2018 issues of The OFCCP Digest on this website.
Asked by Anonymous - Nov 29, 2018
We are a non-profit servicing elders and disabled that recently aquired another non-profit agency in the same sector. This new acquisition received notice of an OFCCP audit. The last AAP plan in place is dated 2016. They have no ATS in place and no applicant data at all aside from 3 boxes worth of hardcopy applications. How do I go about creating an AAP with no applicant information or virtually no information aside from current employee data? The plan would essentially be incomplete. Do you suggest we take the time to input all of those paper applications? How do you suggest I tackle this and what should my first steps be?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Dec 03, 2018
In an audit, it is imperative that the Affirmative Action Plan and support data be as complete as possible. According to the rules and regulations enforced by the OFCCP, a lack of data can be a real problem for any company. I suggest you take a look at availability data as well to identify problem areas - this is what the agency typically looks at in an absence of data. You may want to seek assistance from a professional that has tackled this type of issue before. Remember that any conversations with a compliance officer may bind your company to statements. Good luck in your audit.
Self-identification and Employee Self Service
Asked by Anonymous - Nov 16, 2018
We are looking at turning on our employee self-service which would allow employees access to their personal data and potentially to update their personal information (address, SS#, DOB, etc.). One of the screens includes fields for veteran, race, gender and disability status. I know that the OFFCP has set explicit requirements around using the OMB established form or adhering to the font, size and text specifications, but didn't know how this impacts HRIS systems. Are we required to offer that form electronically or hard copy anytime an employee wishes to self-identify? If that is the case, I would imagine these fields would need to be hidden from view. We have a hard time getting employees to self-identify. It would be nice to offer them the option to go in and update their information without having to go through HR.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Dec 03, 2018
It would be a nice option, but OFCCP requires that its OMB approved form be used for any self-identification regarding disabilities. As you noted in your question, any electronic copy of the form must:
Display the OMB number and expiration date; Contain the text of the form without alteration; Use a sans–serif font, such as Calibri or Arial; and Use at least 11–pitch for font size (with the exception of the footnote and burden statement, which must be at least 10–pitch in size).
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