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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.

Dispositioning Applicants

Asked By Krystal G. on Aug 01, 2019

Do all applicants need to be dispositioned? If so, does ‘not meet basic qualifications’ suffice?

Answered on Aug 06, 2019

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

YES, if you mean “job seekers”, Krystal. And NO, I’m sorry but “does not meet basic qualifications” will not suffice as a disposition for some job seekers and it will NOT suffice for ANY “Internet Applicants”. But I hope you’ll be glad that there is a much more detailed answer to follow, along with a discussion of the term I think you meant instead of “applicant”, that term being “Internet Applicant”, because that term as well as the term/concept and...

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What is covered in a compliance check?

Asked By Anonymous on Mar 27, 2019

I’m having difficulty finding out exactly what will be asked for in an OFCCP compliance check. I know that they will request our latest AAP, but is there anything else we should expect? Any guidance is appreciated. Thanks!

Answered on Mar 29, 2019

Bill Osterndorf - Principal Consultant, DCI Consulting Group, Inc

Actually, OFCCP will NOT ask for your most recent AAP during a compliance check. According to the compliance check letter that OFCCP has on file with the Office of Management and Budget, the agency will ask to see the following items: "1. AAP results for the preceding year (41 CFR §§ 60-1.12(b); 60-300.44(f)(4)and 300.80; 60-741.44(f)(4)and 741-80). 2. Examples of job advertisements, including listings with state employment services (41 CFR § 60-1.12(a), § 60-300.80, and § 60-741.80). 3. Examples of accommodations...

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Resume Database Search

Asked By Anonymous on Jul 26, 2019

Are we required to maintain records of external resume database searches regardless of whether the candidate(s) actually ends up applying (i.e. expressing interest) to the position through our applicant tracking system (ATS) and indicates they meet the minimum qualifications of the job? In other words, should our sourcing specialist be keeping records of all database searches that she is conducting on Indeed, ZipRecruiter, LocalJobNetwork, Facebook, etc.?

Answered on Aug 06, 2019

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

Yes. For external resume databases, contractors must retain all expressions of interest considered for individuals who meet the basic qualifications for a particular position, even those of individuals who are not Internet Applicants. Contractor must maintain a record of : -Position for which each search was made -Substantive search criteria used in each search -Date of search -Resumes of any job seekers who met the basic qualifications for the particular position who are considered by the contractor (even if they...

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Job Groupings

Asked By Anonymous on Mar 29, 2019

Hello,

1. How do you generally recommend we set up job groupings for a multi-site organization from an EEO-1 perspective?
2. When we have sites that are less than 50 people I don’t believe we are required to report those statistics. Is that your understanding? Do we need to report that information anywhere?

Thank you!

Answered on Mar 29, 2019

Bill Osterndorf - Principal Consultant, DCI Consulting Group, Inc

First things first: if by "How do you generally recommend we set up job groupings" you mean "How do we establish job groups for our federal affirmative action plans?", job groupings should be specific to each individual AAP. OFCCP does not conduct compliance reviews by organization; it conducts compliance reviews by "establishment." The Executive Order 11246 affirmative action plan that is prepared for any given establishment should be specific to that establishment. The narrative should reflect what is occuring at...

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Application Process Review

Asked By Anonymous on Aug 06, 2019

We are having applicants apply through LinkedIn’s portal, but understand all applicants need to go through the same application process. Would we be compliant if we than have applicants we speak with apply through our standard application via our ATS once we have connected with applicants applying through LinkedIn?

*We have seen a significant decline in applicants when redirecting them back to our web portal to apply rather than simply having them initially apply through LinkedIn’s process.

Answered on Aug 06, 2019

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

Because you are screening applicants who apply through LinkedIn, we apply the Internet Applicant Rule at this point. So, you would need to track all applicants who meet the minimum qualifications, whether or not you "speak" to them. From OFCCP's perspective, this is the first tier of evaluation. If you require all LinkedIn applicants to go through the ATS, this would be the second tier of evaluation.

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Notice to view AAP

Asked By Anonymous on Apr 01, 2019

As a federal contractor, do we have to display a notice for our employees informing them that they can view the Vets and IWD AAP?

Answered on Apr 08, 2019

Bill Osterndorf - Principal Consultant, DCI Consulting Group, Inc

Yes. The regulations regarding protected veterans and individuals with disabilities have a provision that reads as follows: "Availability of affirmative action program. The full affirmative action program, absent the data metrics...shall be made available to any employee or applicant for employment for inspection upon request. The location and hours during which the program may be obtained shall be posted at each establishment."

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State DOT Requirements

Asked By Anonymous on Aug 14, 2019

Are State DOT’s required to comply with VEVRAA and Section 503 in their Affirmative Action Plans?

Answered on Aug 28, 2019

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

Whether a state DOT is required to comply with VEVRAA and Section 503 depends on the nature of its contract with an agency of the federal government. If the state DOT has a direct federal contract, and the amount of the contract is above the dollar threshold, then the state DOT's contract likely would contain Section 503 and VEVRAA compliance obligations. Many state DOTs have federal financial assistance agreements, however, not direct contracts, with a federal agency. Federal financial assistance...

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Policy of Affirmative Action Letter for Recruitment & Referral Sources Letter

Asked By Anonymous on Apr 08, 2019

Hello,

Our AAP vendor is requesting that we send the letter below to ALL recruitment and outreach sources. As we are LJN customers, that number is in the thousands. Is this a requirement of OFCCP or a ‘best practice’? Thank you!

Dear Outreach and Placement Professional:

This letter is to inform you that Company Name is committed to the principles of equal employment opportunity. As a government contractor bound by Executive Order 11246; the Vietnam Era Veterans Readjustment Assistance Act of 1974; and Section 503 of the Rehabilitation Act of 1973, all as amended, Company Name maintains an affirmative action plan through which it makes good faith efforts to recruit, hire, and advance in employment qualified individuals without regard to sex, gender identity, sexual orientation, race, color, religious creed, national origin, physical or mental disability, protected Veteran status, or any other characteristic protected by applicable law.

Company Name states as its Policy of Affirmative Action the following:

1. It will be the policy of Company Name to recruit, hire, train, and promote persons in all job titles without regard to sex, gender identity, sexual orientation, race, color, religious creed, national origin, physical or mental disability, protected Veteran status, or any other characteristic protected by applicable law.

2. All employment decisions shall be consistent with the principle of equal employment opportunity, and only job related qualifications will be required.

3. All terms and conditions of employment will be administered without regard to an individual’s sex, gender identity, sexual orientation, race, color, religious creed, national origin, physical or mental disability, protected Veteran status, or any other characteristic protected by applicable law.

We would appreciate your assistance in Company Name’s efforts to meet our equal employment and affirmative action goals. [For Recruitment and Referral Sources: Members of our Human Resources Department will contact you when positions are available. We request that you refer to us all qualified candidates, including women, individuals of color, protected Veterans, and individuals with disabilities.]

Answered on Apr 08, 2019

Bill Osterndorf - Principal Consultant, DCI Consulting Group, Inc

Sending a letter to recruitment sources is a best practice. There is no explicit requirement in the federal affirmative action regulations to do so. However, OFCCP will often ask during compliance reviews whether recruitment sources have been asked to include minorities, females, veterans, and individuals with disabilities among their referrals. A letter of the kind you've posted above would help to demonstrate that you are meeting this objective. As an LJN customer, it's true that you have many recruitment sources...

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International Subcontractors

Asked By Ashley C. on Aug 23, 2019

We use a variety of subcontractors within our organization to support our business. Two of our subcontractors provide call center support to us but are located internationally. Are the rules any different for a subcontractor that is international vs. located in the US?

Answered on Aug 28, 2019

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

Yes, the rules are different for international businesses. The VEVRAA regulations at 41 CFR Section 60-300.4(a)(3) and the Section 503 regulations at 41 CFR Section 60-741.4(a)(3) which address the scope of OFCCP's coverage state that the regulations apply only to employment activities within the United States and not to employment activities abroad: "(3) Employment activities within the United States. This part applies only to employment activities within the United States and not to employment activities abroad. The term “employment activities...

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Pre-Offer EEO Survey

Asked By Anonymous on Apr 09, 2019

Does the pre-offer EEO, Disability, and Veteran Self-ID need to be given every time an applicant applies to a new position?

Or can we ask once when the applicant creates their applicant profile in our ATS, and apply that response to every position they apply for?

Answered on Apr 24, 2019

Lisa Kaiser, Esq. - Lawyer, The Kaiser Law Group, PLLC

This situation is not contemplated by the regulations. A best practice would likely be to solicit a new self identification, or give the opportunity to update the self-identification form for new applications. At least those that are not close in time to a previous one submitted by an applicant as information could change.

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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

Principal Consultant, DCI Consulting Group, Inc

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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