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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.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 09, 2018
Yes, that disposition is fine. It is especially good that this is a rule followed 100%, so the company will be consistent in its application. As with any disposition, best practice is to ensure that everyone using the disposition understands the definition behind it. In an audit, you should be prepared for a question such as, "If no applicants are considered after the decision is made, then what is the purpose of leaving the position open past that date?"
Applicant - Inactive Posting
Asked by Everett L. - Oct 08, 2018
We have a situation where we are attempting to hire an old applicant that applied for a position back in January. The job posting is currently inactive and we were wondering what was the best course of action moving forward. Should we disposition the candidate and have him apply to a more recent posting?
I would not reactivate the old job posting, Everett, and would disposition this individual as not selected for whatever the reason was for that particular opportunity.
I'm not a fan of "sham" postings and they really are a waste of everyone's time, particularly those new/additional job seekers who apply thinking they actually have a shot at the opportunity. However, I know these things happen and IT IS PERFECTLY LEGAL TO RECRUIT/INVITE particular individuals to apply for any posted opportunity. "Best practice" in such cases would be to genuinely "consider" -- i.e., evaluate the qualifications of those persons who expresses interest and possess the "basic qualifications" (as defined in OFCCP regulations) in addition to the individual you already have your eye on. You might be surprised! Or not. In any event, be prepared to defend your selection of this person based on his or her competitive qualifications with others who express interest.
It's not clear to me from your question if you have an existing open and posted position suitable for this candidate. If so, by all means direct him or her to apply against that vacancy, following all your "rules" for expressing interest.
If you are going to post something new for purposes of selecting the January job seeker I remind you to do the necessary outreach in the listing of the job BUT I suggest that you leave the posting up for a very brief time (e.g. 3-5 days) to limit the number of job seekers for whom you might make any selection decisions. Not surprisingly the OFCCP is extremely skeptical of "single applicant hires" but if this is a position for which you typically recruit/hire multiple times in a year, it's unlikely that this particular situation -- which I trust is unusual? -- will be noticeable in aggregate data. Best wishes, Ellen
Writing Samples for Applicants
Asked by Anonymous - Oct 03, 2018
We currently have a communications position open and the hiring manager would like to review writing samples of applicants. I know that we can't score or grade a writing sample without it being validated, as this would be considered a test. However, would it be appropriate to utilize a writing sample as part of the behavioral interview screening. There would be no scoring or right/wrong answer.
For example: 1) Have the applicant bring a writing sample with them to the interview. 2) Hiring managers asks questions of candidates as to why they structured the writing the way they did?
*** Why did they choose a specific word choice? *** How did the audience impact their decisions in how to structure the document? *** How did they work with internal business leaders to understand important information to include? *** Etc...
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 03, 2018
Each procedure or step of a hiring process is a "test" in that the applicant must "pass" a certain step in order to move forward in the process. Pursuant to Sec. 60-3.3, (see below) validation is required if the component, in this case reviewing a writing sample, results in adverse impact and there is no nondiscriminatory reason for the impact and there is no reasonable alternative for the component. Validation is not required if there is no adverse impact.
In your example, it would be tough to argue in an audit that the writing sample is relevant to the job if it is not used as a screening measure. In other words, if the writing sample does not affect an applicant being hired, then it is not a best practice to have that as a part of the process. If you would like to review a writing sample, ensure that there is no adverse impact from this component of the hiring process.
Sec. 60-3.3 Discrimination defined: Relationship between use of selection procedures and discrimination. (A) Procedure having adverse impact constitutes discrimination unless justified. The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines, or the provisions of section 6 of this part are satisfied.
Asked by Janet F. - Sep 14, 2018
Spectra Tech, Inc. is a Nuclear, Environmental, and Engineering company and a Department of Energy (DOE) contractor. We have contracts with the various DOE facilities in Oak Ridge, TN. When they have open positions, they send out requests to us as well as many other DOE contractors. I submit qualified candidates resumes to them based on the job description. If they are interested in one of our candidates, I schedule an interview and if selected, proceed with hiring that candidate as a Spectra Tech employee working at their DOE facility site. Only if they hire our candidate do I know the status of filling their position. If they don't select our candidate, they don't let us know who was selected from another company. Are we still responsible for tracking/recording the candidates that aren't hired and dispositioning them?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 15, 2018
I'm not sure exactly from the facts in your questions how things are set up at your company, but I hope this helps. Your company should track information on its selection process for these candidates described above in order to fulfill its federal contracting obligations. What is the pool of candidates the company selects from in order to send an individual to the hiring authority and why were some not selected to be sent? It should be relatively easy to disposition those that are not selected for submission. Dispositions allow the company to remove individuals from the pool (those that are not considered applicants) and from its analysis (those that are applicants, but were not competitive for the job for other reasons), but are not required by the regulations. In other words, the company is not in violation of the laws enforced by OFCCP if it does not have adequate dispositions of every applicant. (I'm not recommending this practice, but want to be clear on requirements.) The issue is whether the company needs to dispositions to more precisely analyze its data. Unless there is statistically significant adverse impact or alarming trends at this stage in the process, the precise dispositions are not absolutely necessary. Once the candidate gets to the end of the process where he or she is sent to the site, it is likely the individual would remain in both the analysis and the pool.
EEOC Compliance for Applicants
Asked by Becky J. - Sep 07, 2018
We recently updated our Applicant Tracking System to require applicants to provide Race/Ethnicity and Gender information. We were wondering if you could share with us what information we are required to be collecting (or asking) from our applicants when they apply to jobs on our corporate website. In addition, when are we supposed to provide collected applicant data and to whom?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 15, 2018
It depends on whether your company is a federal contractor or not. To comply with the laws and regulations enforced by the OFCCP, the company must solicit race, ethnicity, sex, veterans status, and disability status during the application process if the company is a federal contractor or subcontractor. A company cannot require an applicant to provide this data. Annually, the company must submit a VETS 4212 report (https://vets4212.dol.gov/vets4212/) and the EEO-1 report (https://www.eeoc.gov/employers/eeo1survey/index.cfm).
VETS 4212: VEVRAA requires Federal contractors and subcontractors covered by the Act's affirmative action provisions to report annually to the Secretary of Labor the number of employees in their workforces, by job category and hiring location, who are qualified covered veterans (38 U.S.C. 4212(d)). VEVRAA also requires Federal contractors and subcontractors to report the number of new hires during the reporting period who are qualified covered veterans. The Veterans' Employment and Training Service (VETS) has issued regulations found in 41 CFR part 61-300 to implement the reporting requirements under VEVRAA. The regulations in 41 CFR part 61-300 implement the Jobs for Veterans Act (JVA) amendments to the reporting requirements under VEVRAA and require the annual submission of the Federal Contractor Veterans' Employment Report VETS-4212. All nonexempt Federal contractors and subcontractors with a contract or subcontract in the amount of $150,000 or more with any department or agency of the United States for the procurement of personal property or non-personal services.
EEO-1 : The the EEO-1 will collect data on the race, ethnicity, and sex of workers, by job category, from private employers with 100 employees or more and federal contractors with 50 employees or more and $50,000 in contract(s). Employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary. The data is collected using the reports below and is used for a variety of purposes including enforcement, self-assessment by employers, and research. Each of the reports collects data about gender and race/ethnicity by some type of job grouping. This information is shared with other authorized federal agencies in order to avoid duplicate collection of data and reduce the burden placed on employers. Although the data is confidential, aggregated data is available to the public.
Federal contractors & subcontractors that meet certain thresholds are required to develop an affirmative action plan and ensure that other obligations are met.
Federal Contractor Requirements
Asked by Pamela C. - Sep 06, 2018
I have several questions.
1. If a job is posted on the company website and the state board. Then the posting is closed for whatever reason (a candidate was hired; the position was closed temporarily; whatever) and then the hiring manager wants to re-open the job does it then become a new posting requiring it to be posted on the state job board?
2. If a job is posted open on the company website and the state board of a particular state but the hiring manager then finds a candidate he likes and tells them to apply, but will now be home based at a different office in a different state, does that job need to be posted in the state where it will actually be based? Such as, a job posted in Georgia, but the person they like lives in Florida and will be home based in Orlando rather than Atlanta.
3. If the OFCCP were to audit a company, do they expect to see the job posting requisition, verification the position was posted on the state board and when/why is was closed?
4. I have always heard that the OFCCP strongly discourages applicants to be manually forwarded from one job posting to another; that it is strongly recommended the applicant applies to each position they are interested in or being hired for? Can you comment on the practice of a company forwarding applicants from one position to another or from a closed position to an open position?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 15, 2018
1. Although arguably no in certain situations, the best practice would be to post the job again with the state employment service. This would ensure compliance in this area in case of an audit versus having to debate the circumstances of reopening the posting.
2. The scenario described above is not a recommended practice and would likely lead to concerns by the agency in an audit. However, for remote or variable (telework) locations, according to the OFCCP's FAQs, the contractor may "satisfy the job listing requirement for a remote job by listing the opening with an ESDS in any area where qualified candidates might be found. Where the vacancy announcement indicates that the job may be performed either from a specified duty station or remotely, the contractor must list the job with the ESDS where the duty station is located, but may also list the opening with any other ESDS it determines is appropriate."
3. Yes. Any record made or kept must be available in an audit. The agency often asks for proof of some, or all, postings.
4. This is correct. If the company is placing applicants on requisitions or applications, then the agency often analyzes a larger pool, which is much more likely to lead to statistically significant adverse impact (SSAI). If a company is providing some applicants and forwarding them to another posting, then the agency, in order to conduct an analysis of those that competed for a job, will look at availability versus actual applicants as the pool is tainted by the company - it created an applicant pool instead of those that actually competed for the jobs. If those applicants that are forwarded are like in race, ethnicity, disability status, etc., it could appear as if the company is actively engaging in discrimination.
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.