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OFCCP: Ask the Experts
OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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.
When you have a contract requirement that requires candidates be tested on their skills and this only applies to one program, can you advertise the testing requirement even if you don't test for other positions you hire for? I thought your postings had to be consistent.
We are considered a federal contractor and thus we need to report on all of our applicant flow. We have found that because we are not mobile apply friendly, we are having drop off once people get to our site. Thus we have been working with services outside of our ATS such as Zip and Indeed. We ask people to apply even in these forums, but most of them just send an email or a resume in email, so tracking applicants becomes ineffective. What are other companies doing to ensure strong applicant flow, but still be able to manage the required reporting?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 06, 2018
This is a very common issue and there is no easy fix. The best place to start is often the internet applicant rule and implementing good data management techniques. This limits the data the company needs to capture. Having a process for accepting and reviewing resumes is equally important. For example, reviewing only those resumes submitted for a specific position of requisition. Some companies have an auto-response that includes language about collecting demographic information with self identification forms. Of course, those involved in the process need to follow these processes as strictly as possible. Ultimately, though, the data must be captured in order to comply with the regulations and there is really no way to do this efficiently.
Requiring US Citizenship and active clearance
Asked by Samantha D. - Jun 04, 2018
Is there a best practice tagline for requiring U.S. Citizenship and active DOD Clearance on job postings?
Please be VERY careful as to citizenship. There is a difference between requiring "U.S. Persons" to work on a government contract and U.S. Citizens. To my knowledge, the Immigration and Nationality Act protects against citizenship discrimination against five separate groups: U.S. Citizens and nationals, refugees, asylees, and recent lawful permanent residents. There is a U.S. Department of Justice opinion letter that is useful as a reference on this topic: https://www.justice.gov/crt/file/837281/download
State site job posting duration
Asked by Anonymous - May 31, 2018
I have a few questions:
1. Is there in OFCCP a minimum duration an open requisition should be posted on a state job board to be OFCCP compliant? The reason this I'm asking this is that our recruiter gets bogged down with applicants from state site job postings and wanted to know what the minimum amount of days a job should be posted on the state job boards, before they can deactivate it to stop the bleeding of candidate influx. (this is being looked at in addition to screening questions revamp, freezing the role on the company site side etc.)
1.2. I believe the minimum amount of days that a job posting has to be on a state job site is 3 days, but I don't know if that is correct or the logic behind it. So that would be helpful to understand.
2. In the state of Florida and Indiana, are there any strict job posting rules for government contractors that require keeping a job positing on the state job sites beyond what OFCCP mandates?
Any assistance with these questions would be greatly appreciated.
The Equal Opportunity Clause of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) states that: “Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a bona fide job order, including the acceptance of referrals of veterans and nonveterans.”
This means that a contractor must list or post their jobs with the Employment Service Delivery System (ESDS) as soon as they start recruiting for it, and keep the posting active until it is filled. It does not necessarily specify a minimum or maximum number of days that jobs must be posted.
As for the state ESDS sites, there is no minimum number of days to post a job on the ESDS, nor a requirement to post it for at least 3 days. If you have filled the job, you are allowed to close the job posting. What you may be referring to is one of the three exceptions allowed. Contractors covered under VEVRAA are required to post every single job opening they have on their payroll with the exception of: 1) executive and senior management positions, 2) jobs filled internally, and 3) jobs lasting three days or less. If your job only lasts for a short duration of three days or less, you are not required to post it to the ESDS.
As far as FL and IN are concerned, there is no requirement on their end to keep a job posted if the contractor has already filled the position, nor is there a specified duration or number of days that OFCCP mandates when it comes to job postings. In fact, most states expect contractors to let the ESDS representatives know if the position has been filled and if the contractor hired anyone from the applicants they have referred.
The key thing to remember is that, with the exception of jobs that fall under the three categories mentioned above, contractors are required to list all of their jobs to the appropriate ESDS in the state where the job is located, as soon as the contractor starts recruiting for it, and to keep that job active for as long as the job is open, to allow the ESDS to provide priority referral of protected veterans to contractor positions. Once the position is filled, contractors are not required to keep the job posted.
Asked by Jill M. - May 31, 2018
We have opened a position to fill. The position has been opened for about 90 days. We decided to go outside to a third party firm who ended up filling the position for us. We use our ATS to allow the third party to send us candidates so we can track the hire for metrics purposes. Since the hire was ours, I closed the position and disposition the candidate as not hired because my company was not the one who filled the position. The position will end up being a 6 month to term position. So, in 6 months we will reopen that position and put him in it with a note that he was hired as a 6 month to term conversion and this is now the conversion to make him our employee. I disposition any candidates that come into the system as "other candidates more qualified, better fit". Am I doing this properly or should I show the candidate as a hire even though it's not our direct employee?
I would very much like to have had some additional information in your question, but my goal is to cover several different possible scenarios. And I DO ASSUME for all purposes here that your firm is a government contractor subject to OFCCP laws and regulations. If you are not, I’ve got a short answer below – but do read the long one as well; it matters.
When it comes to the use of a third party (hereinafter TP), the short answer is ALWAYS that the employer who engages a TP to fill a position is liable for the actions of its “agent” when agent is acting on its behalf. Always. Another way to think of this rule is: “One can delegate authority; one cannot delegate responsibility. With respect to compliance with EEO/AA requirements – including all record keeping and analysis – the employer CANNOT AVOID these obligations simply because it engages a TP to do recruitment/screening and/or selection. NOTE: This is a complicated issue and beyond the scope of this Q&A but I encourage you to research this and to seek legal counsel from an attorney experienced in EEO/AA compliance and, in particular, your contractual arrangements with your Third Party recruiter/staffing organization. You need them to maintain -- and share with you -- the very same records you must keep for the recruiting/screening that you do for yourself.
Your situation is a good one in which to “What If?” the occurrence of an OFCCP review or other EEO investigation. What If – especially after you “convert” the Third Party’s employee to your own – it is alleged s/he was discriminatorily denied that position? Would you really expect to be home free by responding: “We didn’t do it, Third Party did it”? It doesn’t work that way and when we think about it, the reason seems obvious. Suppose that the Third Party’s recruitment was non-compliant with its customer’s obligations, and/or it unlawfully discriminated in its screening (of what I assume are “Internet Applicants”) and/or in its referral of candidates. This would mean that the entire process by which your employee was ultimately offered both the first opportunity for a 6-month temp assignment as well as the subsequent opportunity for regular employment was tainted. Third Party’s customer (in this case, your organization) is responsible for the actions of its agent: it was the former's employment opportunity that was/is DENIED to others. And, in my hypothesis, unlawfully and discriminatorily denied. It is precisely because such a thing CAN happen that the EEOC, OFCCP and other enforcement agencies demand that records be kept which will permit investigation of the “selection process” as it really was carried out – by whomever. And it is precisely why the employer cannot “benefit” from the unlawful discrimination of its agent even if it is itself entirely innocent in motivation and, very possibly, ignorant of what its agent had done.
With respect to whether/when the position should be/have been closed, that depends on what you did with respect to any job seekers who expressed interest in the position. If no one did – then you made no employment decision and there’s nothing to analyze. If no one expressed interest who met the definition of Internet Applicant then you must maintain such records in accordance with the OFCCP regulations but not include those job seekers in any analysis. If anyone met the definition of Internet Applicant -- i.e., qualifications assessed and rejected – (presumably the reason you went to a TP firm) then all those records (applications/resumes/dispositions/application/interview reviewer notes, etc.) should, in this situation, be moved to the re-opened position and counted/analyzed along with the person who was “converted”. At the time you convert him or her to regular employment OF COURSE the temp has the “most relevant experience”. But that won’t – and should not – fly as a defense if the temp got the assignment in the first place because any other(s) were unlawfully denied it! The compliance investigator won’t even have to break a sweat if s/he stumbles on this. THAT is when you will need those records – and those of the Third Party as well. Records are not only an indictment…often they are salvation!
Unfortunately, many employers have records that make it very difficult if not impossible to defend their own, much less their agents’ selection decisions. You’re using a not uncommon sort of disposition code but it is one that won’t be at all helpful if there’s ever a challenge to your selection decisions. It doesn’t convey any specific information on WHY an applicant was rejected and your plan to universally disposition all other job seekers suggests that it’s not accurate for at least some of them, perhaps any.
This single code is probably truly inaccurate for at least some job seekers to whom it has been assigned. It certainly isn't accurate -- and may not even be true! -- for any whose applications/resumes you never even read. It's also inaccurate for those (if any) who didn’t meet the “basic qualifications” for the position – as that term is defined by OFCCP regulations. It's also inaccurate for those (if any) who, implicitly, withdrew – e.g., application illegible, job seeker not willing to satisfy the terms and conditions of the job (e.g. shift, OT, travel, security clearance, legal to work in U.S.), etc. When an employer fails to ACCURATELY and CONSISTENTLY record “what really happened” it is very likely to create a statistical disparity that may not actually exist. Moreover, poorly designed disposition codes (or inconsistent usage!) will substantially hamper an employer’s ability to demonstrate that its selection decision(s) were, in fact, lawful, notwithstanding the disproportionate exclusion of some group. There’s a huge difference in the risk – and cost – of defending adverse impact caused by, for example, “No engineering degree” or “qualifications not as represented” or “recent work experience not applicable” than in the risk/cost of defending “other candidates better fit”.
“Other candidates more qualified, better fit” is a catch all term – and it does catch ALL. Consequently, it is too vague to permit the required analysis of your employment decisions. There really IS a difference in the employer’s risk for rejecting someone because s/he had less experience or less relevant education or a spotty work record versus “not a good fit”. What does that even mean? Others better qualified WHY? What’s the basis for that conclusion? Did you ever receive an empty email with the statement “This message has no content”? In my experience working with such data in order to (hopefully!) rebut a statistical indication of discrimination such disposition codes are exactly like that: they have no content. In such circumstances my clients have had only two choices: accept the OFCCP’s finding of discrimination and assessment of back pay, or expend very substantial efforts to [attempt to] recall and recreate history so as to figure out that which well-designed disposition codes would have recorded in the first instance.
As promised here is the "short answer” if you are not a government contractor. All the record keeping and other legal compliance obligations the employer assumes on behalf of its third-party agent are the same for both government contractors and any employer that is covered by Title VII. That is, both contractors and non-contractors have record keeping obligations and the obligation to determine if any of its selection criteria “adversely impact” any group based on race/national origin and sex. Such obligations for government contractors are, arguably, somewhat easier (because of the "basic qualifications" element of the "Internet Applicant" definition) although it also might be true that contractors are more likely to experience enforcement of these obligations.
Help with Job Descriptions
Asked by Anonymous - May 30, 2018
We're a DOD federal contractor that primarily hires software/systems engineers. We don't typically have "out of the blue," brand new, business needs...we are always looking for either Associate Software/Systems Engineers (more junior) or Software/Systems Engineers (mid-level +), however I believe we could do more to distinguish minimum required qualifications for both categories. For example, it's common that we'll leave the Software/Systems Engineer requisition up on our website year-round to catch any especially strong applicants that come in. We're in the midst of bringing on an applicant tracking system, however the current setup causes some issues as some engineers with 9+ years of experience are hired into the same job requisition as those with 3 years of experience, as an example, with dramatically different salaries which could lead to inequity (we do have a salary band structure). Also when they're hired, they're not hired into their own unique job requisition number. So my questions would be:
How narrow does each job description need to be in terms of minimum required qualifications? Is it acceptable to have open positions on our website that act more like active pipelines to cast a wide net, rather than a specific job description for a specific business need? Would we need to open an individualized job description per each hire, even if it's exactly the same job description as the rest?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 30, 2018
It is best to distinguish these two categories (associate or more senior). Competitors for a particular job should have similar qualifications and the minimum qualifications should be in the job announcement. Applicants and hires with a wide range of experience can lead to problems in an audit. Further, it may not allow for an appropriate annual analysis. In my responses below, for clarity, I refer to the "job announcement" as that which applicants see, versus "job description," which typically is only seen by the employee. Answers to your specific questions follow:
How narrow does each job description need to be in terms of minimum required qualifications? There is no specific requirement for job descriptions or job announcements. I would look at it from a different perspective. What do you need the employee to do? Why are those the minimum qualifications for the job? That should drive the announcement. At that point, you have similarly-situated individuals competing whether it be entry level, mid level, senior level, or something else.
Is it acceptable to have open positions on our website that act more like active pipelines to cast a wide net, rather than a specific job description for a specific business need? Pipelines are tricky to do well. This answer depends on specific facts, such as how many applicants and hires for the positions, how long does the candidate in the pipeline stay active, and some other factors. Candidate pipelines often lead to questions in an audit, so these should only be used when absolutely necessary and documented very well.
Would we need to open an individualized job description per each hire, even if it's exactly the same job description as the rest? Merely opening a new announcement for each hire doesn't limit your pool for analysis if the applicant pool is the same or if applicants are carried over from consideration for previous hires. So the answer is no with the facts given above.
Probably the best idea here is to look at the analyses (all - hiring, compensation, etc.) with the appropriate pools, e.g., everyone in the pipeline together if that is who is considered for each hire, and see where the disparate impact exists. Then of course, make sure that the company can document a non discriminatory reason for the adverse impact.
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