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Ask the Experts is an exclusive online forum provided by Circa. Federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity.

Geo-fencing and Digital Recruitment

Asked By Jamie K. on Jun 14, 2021

Our Head of Compliance & BSA has expressed a concern about geo-fencing as a recruitment tool. Can this be deemed a discriminatory hiring practice and/or present a challenge during a regulatory exam?

Answered on Jun 14, 2021

Matt Nusbaum - Senior Consultant, Director, Biddle Consulting Group, Inc.

That will likely depend most on how you set up your fence(s). The OFCCP has long been on guard for contractors potentially gerrymandering their recruiting areas by, for example, choosing to pull availability data for select counties based on demographics rather than an entire (already defined) metropolitan area, and conveniently not including counties with higher proportions of women and/or people of color. So, for example, if recruiting recent or soon-to-be college graduates in the Washington DC area, the agency would...

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New guidance from EEOC re: COVID Vaccine in Workplace

Asked By Anonymous on Jun 08, 2021


We are wondering, with the new guidance from the EEOC “stating that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” as long as employers allow for reasonable accommodation of their vaccine mandate for medical or religious reasons. Like all requests for accommodation, employers may avail themselves of the “undue hardship” exception for denying an employee’s request for accommodation” (source: https://www.mondaq.com/unitedstates/employee-rights-labour-relations/1076814/eeoc-says-employers-can-mandate-covid-19-vaccines-but-tread-carefully)

If we require the vaccination to be on site, how do we go about obtaining this information from applicants? Is there any guidance on how to ask/ what to ask?

Thank you!

Answered on Jun 14, 2021

Roselle Rogers - Vice President, Circa

There are many things to take into consideration as the guidelines are constantly changing – not just at the federal level but also at the state and local levels. To illustrate, on Thursday, June 10, a few days after you posted this question, OSHA released the Emergency Temporary Standard (ETS) for companies in the healthcare industry. So, if your company is in the healthcare sector, you will need to make sure your practices are consistent with the new ETS. If...

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Non Competitive Promotions

Asked By Anonymous on Jun 07, 2021

It is our merit cycle and promotions have been give to several employees. Since these promotions are non-competitive, and have already been given to the internal employee, would we need to post a requisition for the person to apply to? There will not be anyone else considered for the role and the only applicant would be the person getting the promotion. Thank you in advance.

Answered on Jun 07, 2021

Matt Nusbaum - Senior Consultant, Director, Biddle Consulting Group, Inc.

If this is in relation to the requirements in the OFCCP's veteran regulations (41 C.F.R. § 60-300.5(a)(2)) be aware that there is an exception to the external posting requirement for positions that the employer intends to fill from within the organization. So internal, "tap-on-the-shoulder" progressions are exempt. See 41 C.F.R. § 60-300.5(a)(6).

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Asked By Anonymous on Jun 01, 2021

Is it mandatory to post paid intern jobs?

Answered on Jun 01, 2021

Matt Nusbaum - Senior Consultant, Director, Biddle Consulting Group, Inc.

Yes, if your organization is subject to the OFCCP's affirmative action regulations for protected veterans. According to the regulations at 41 C.F.R. § 300.5(a) all employment openings must be listed with the state employment service delivery system. "Employment openings" includes "all positions except executive and senior management, those positions that will be filled from within the contractor's organization, and positions lasting three days or less," and includes full- and part-time positions as well as temporary positions. So unless your paid...

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ESDS postings

Asked By Anonymous on May 27, 2021

Are we required to maintain ESDS postings for a period of two years? If that is the case, is it 2 calendar years or two plan years?

Answered on May 28, 2021

Roselle Rogers - Vice President, Circa

Per VEVRAA regulations, any records pertaining to outreach should be kept for a period of 3 years. While postings to the Employment Service Delivery System (ESDS) are for compliance with the mandatory job listing requirement, the requirement is there for the purpose of recruiting and requesting priority referral of protected veterans to your open jobs. Every ESDS or state job bank has a Local Veteran Employment Representative (LVER) and a Disabled Outreach Program Specialist (DVOP) who are actively watching out...

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Job Posting Recipients

Asked By Cy M. on May 27, 2021

Is there a way to see the number of specific recipients to our outreach ?

Answered on May 28, 2021

Roselle Rogers - Vice President, Circa

Yes, Circa customers who have a diversity recruiting or OFCCP Compliance solution subscription, have access to an Outreach Dashboard and a Report Card that provides information on which organizations received notification of your new open jobs, as well as information on how many people viewed the job posting and those who proceeded to click on to apply.

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Interviewing Qualified Applicants

Asked By Anonymous on May 17, 2021

Does the OFCCP specify any requirement to interview all qualified applicants? If not, is there a good rule of thumb? Generally, we qualify/disqualify candidates in batches of 20. Sometimes we still end up with a fairly large “qualified” pool. Do we have to at least phone screen all qualified candidates?

Answered on May 17, 2021

Marilynn L. Schuyler, Esq. - Senior Counsel, Seyfarth Shaw

Excellent question! There is no requirement to interview or phone screen all qualified candidates. There are several "data management techniques" that are acceptable, including using batches of 20. The key is to ensure that the method selected is "facially neutral" and does not result in disparate impact.

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OFCCP requirements for a company with less than 50 employees

Asked By Diane S. on May 13, 2021

MACC (Metropolitan Alliance of Connected Communities) provides HR Services to local non-profits in the social services sector and one of our new HR members MNCASA – Minnesota Coalition Against Sexual Assault has federal contracts and meets all the contract thresholds but only has 18 employee’s. We know they do not need an AAP but what are the compliance requirements under OFCCP that they still have to uphold, if any? I’ve attended several OFCCP webinars through Circa and have talked with Affirmity and Circa reps and there is not a clear understanding if MNCASA still needs to comply with OFCCP since they have less than 50 employees. The last person I spoke with suggested I submit this question for more legal guidance. Thank you.

Answered on May 13, 2021

Alissa Horvitz, Esq. - Member Attorney, Roffman Horvitz, PLC

Yes, organizations that enter into a contract or subcontract with a "contracting agency" are covered by the laws and regulations that OFCCP enforces. A contracting agency is defined as any department, agency, establishment, or instrumentality in the executive branch of the Government, including any wholly owned Government corporation, which enters into contracts. Because the organization does not have 50 employees, it is not required to prepare affirmative action plans, but it must comply with the following regulatory requirements: 1. Ensure...

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Active Job Advertisements

Asked By Horatio B. on May 06, 2021

Can an employer change/modify the content of an active job advertisement while it’s posted?

Answered on May 06, 2021

Roselle Rogers - Vice President, Circa

Yes. There are no federal laws that prevent employers from editing or making changes to a job advertisement that has been posted. The only thing that may place a limitation is if an employer is placing a job ad on the State Workforce Agency site in compliance with PERM Labor Certification requirements. The regulations associated with this have very specific guidelines on posting and duration. Depending on whether the changes made are material or not, the employer may have to...

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AAP Training

Asked By Anonymous on Apr 30, 2021

Could someone please advise on what specific topics must be covered during AAP training with managers, to ensure compliance with the regulations?

Answered on Apr 30, 2021

Matt Nusbaum - Senior Consultant, Director, Biddle Consulting Group, Inc.

The only explicit training requirements in the OFCCP's regulations simply require that personnel involved in employment selection decisions be trained "to ensure that the commitments in the contractor's affirmative action program are implemented." (41 C.F.R. §§ 60-300.44(j) and 60-741.44(j)). But the regulations do not dictate any specific topics or form for these required trainings. So the content is pretty much up to you so long as it is reasonably designed to support your AAP efforts and you don't misstate the...

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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. Circa 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.

Our Experts

Comprised of former OFCCP directors and respected thought leaders in OFCCP compliance, affirmative action, and EEO.

Ahmed Younies

President and CEO, HR Unlimited, Inc.

Alissa Horvitz, Esq.

Member Attorney, Roffman Horvitz, PLC

Allen Hudson, PHR, SHRM-CP

CEO, HudsonMann

Beth Ronnenburg, SPHR, SHRM-SCP

President, Berkshire Associates

Bill Osterndorf

President and Founder, HR Analytical Services

Carey Freitag

Human Resources Manager, Circa

Carla Irwin, Esq.

President, Carla Irwin & Associates, Inc.

Craig Leen

Board Member, Circa

David Cohen

President and Founder, DCI Consulting

Ellen Shong-Bergman

Former Director, OFCCP and Retired President, Ellen Shong & Associates,

Josh Roffman, Esq.

Managing Attorney, Roffman Horvitz, PLC

Lisa Kaiser, Esq.

Managing Partner, The Kaiser Law Group, PLLC

Marilynn L. Schuyler, Esq.

Senior Counsel, Seyfarth Shaw

Matt Nusbaum

Senior Consultant, Director, Biddle Consulting Group, Inc.

William E. Doyle, Jr., Esq.

Former Deputy Director, OFCCP Partner, McGuireWoods LLP

Zoe Ann Whitley

Manager, Consulting Services, Affirmity

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