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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.

Posting of Rehire positions

Asked By Elenor L Duckens on Aug 24, 2021

Is a federal contractor required to post a position where a rehire is being considered? If so, is the position required to be posted through our normal process or could the process be shortened?

Answered on Oct 01, 2021

Beth Ronnenburg, SPHR, SHRM-SCP - President, Berkshire Associates

Yes, there are only 3 exceptions to the requirement to list all job openings. Those are 1) Executive and senior management positions; 2) Positions that will be filled from within the contractor's organization for which no consideration will be given to persons outside the contractor's organization, including openings which the contractor proposes to fill from regularly established 'recall' lists and 3) Positions lasting three days or less. You can shorten the process though.

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EEO and Self-ID compliance

Asked By Anonymous on Apr 11, 2021

My company currently uses the standard EEO ID questions for specific locations where we have federal contracts. I would like to add voluntary self-ID data (race, gender, sex, disability, sexual orientation) to the application form. My understanding is to preserve a “lack of knowledge” defense on failure to hire claims, this data should not be used on the application for federal contractors. My question is, would it be compliant to have voluntary self-id information on the applications for our non federal contracted locations where we don’t use EEOC questions?

Answered on Jan 01, 1970

- Vice President, Circa

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1 Answer

Contingent Offers

Asked By Jim S. on Jul 11, 2021


As a Federal Contractor, we understand that the OFCCP provides certain guidance and guidelines for our hiring practices. Important to follow fair and consistent hiring.

Our current process: we determine our customer’s critical staffing needs, open a requisition in our ATS, post it and then screen and interview qualified candidates. (Our roles go out to many organizations as well as to the State Job Boards). We then make a contingent offer which is based upon our customer’s approval and formal contract authorization (to bring our new hire on to perform work for them).

Question: is it acceptable to have a candidate sign a contingent offer ahead of our ability to have them apply for a specific role in our ATS? What if we haven’t opened or posted a role yet, can we still make them a contingent offer and remain compliant with OFCCP guidelines?

Answered on Jul 21, 2021

Roselle Rogers - Vice President, Circa

The regulations that govern federal contractors or EEO for that matter, do not prescribe procedures that specify how employers should structure their hiring process. Federal contractors and subcontractors have a lot of latitude in defining their selection and hiring process, as long as the process ensures compliance with your affirmative action, nondiscrimination, and recordkeeping obligations. Your obligations may also vary depending on whether you are covered under one or more of the three regulations OFCCP enforces. You can find detailed...

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Hiring for lower position than advertised.

Asked By Anonymous on Jul 06, 2021

Are there any existing rules or guidance surrounding hiring candidates for lesser positions than what is posted or advertised. For example, if I post a position for an Engineer with a bachelors degree and 4 years of experience and then hire someone for that position with 1 year of experience and change the job to Junior Engineer. Is this legal?

Answered on Jul 12, 2021

Roselle Rogers - Vice President, Circa

There are no employment regulations that would prevent an employer from hiring an employee below the published job requirements. The key is supporting the employment decisions that were made. Context is important, too. What were the surrounding circumstances, why did you change the criteria and job level, who were in the applicant pool, and who was not selected. If OFCCP or EEOC were to look into this, would you be able to show that there was no steering involved and...

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1 Answer

Data collection during Passive Sourcing process

Asked By Mike D. on Jun 28, 2021

We are a 3rd party staffing provider who happens to be owned by a company that is a Federal Contractor. As a result, we understand that we need to operate as though we are also a Federal Contractor. Assuming this is required, we are struggling to determine where in our process is the right time to request demographic in order to remain compliant while also not creating a poor experience for potential candidates (ie. requesting demographic data before they even know we looked at their resume in a paid resume database).

Below is a high-level overview of the job order and sourcing process within our staffing operations. We are attempting to understand when the OFCCP would expect us to request demographic data in our process so as to be compliant with their expectations, specifically as it pertains to passively sourced talent.

• Client job order is received by Account Manager
• Account Manager enters job details into Bullhorn recruiting platform
• Job order is assigned to a Recruiter
• Recruiter publishes job to career site; Job is scrapped and posted to job board partners (Active Sourcing); Any applicants responding to the job postings are automatically provided with the opportunity to disclose demographic data specific to OFCCP
• Recruiter searches for potential candidates from Bullhorn recruiting platform and paid resume databases (Passive Sourcing); Search logging is enabled for all paid resume databases
• Passively source candidates who are deemed as potential candidates are added to the job order in Bullhorn as a Prescreen for organization of work, outreach tracking, and management oversight purposes
• Recruiter begins outreach to passively sourced candidates to determine interest and qualifications using logged activities and notes in Bullhorn
• Interested and qualified candidates are changed to a status of Internal Submittal for review by Account Manager responsible for the job
• Qualified candidates approved by the Account Manager are submitted to the Client for consideration

Answered on Jul 26, 2021

Roselle Rogers - Vice President, Circa

Federal contractors and subcontractors covered under Section 503 and VEVRAA are required to invite applicants and employees to voluntarily self-identify their status as a person with disability or protected veteran during the pre-offer and post offer stages. You will find the relevant provision in Section 503 §60-741.42 Invitation to self-identify and a similar provision in VEVRAA §60-300.42 Invitation to self-identify. Below is the language that outlines this requirement under Section 503. §60-741.42 Invitation to self-identify. (a) Pre-offer. (1) As part...

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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:

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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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

Julia Mendez Achee

Senior Consultant - EEO/Affirmative Action Division, Biddle Consulting Group

Lisa Kaiser, Esq.

Lawyer, 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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