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.
I was always taught that you run an AAP by selecting the snapshot date and then pulling the historical actions for 1 year back from that date. I can find no legal or regulatory item outlining that the snapshot date and historical year must match up this way.
Can a Company have a snapshot date of, say, January 1, 2017 for example and have their historical dates be April 1, 2016 through March 30, 2017 rather than the traditional January 1, 2016 through December 31, 2016. This means the Year End monitoring or Q4 would not be completed until 3 months after the snapshot date. This seems wrong to me but I can find no regulatory reason that would not allow this. I might also add that the narrative date (AKA “Plan Date”) is April 1, 2017.
The simple answer to your question is "No." The personnel activity data should have dates that are attached to the snapshot date. There are multiple reasons for this. The simplest is that it is illogical to have data sets that don't correspond to each other. You're trying to measure outreach activities and potential disparities via your personnel activity data, and you're trying to measure demographic distribution within the current workforce via the snapshot data. There should be a link between...
If multiple positions are posted, all the same job, same days worked and same shift, for example we need 5 people to work Monday – Friday 9am-5pm to file. All 5 positions are exactly the same. If an applicant applies to one, can they be assigned to all? It is our understanding under OFCCP we must list all available positions but not all applicants attach their application to all as they believe they have applied it. If we get 10 applicants to the one posting, can they all be attached to all 5 of the same positions?
It doesn't actually make sense to produce five separate postings if you expect to hire individuals for the exact same job where the individuals will start on the same date (or approximately the same date), work the same shift, and so on. Candidates will be confused by this kind of posting, and you will potentially have issues as to who should be considered for an opening if a viable candidate applies to only one of the five openings. Further, any...
Part of the OFCCP compliance is notifying our vendors and suppliers of our AAP status and letting them know they must comply as well with it.
Do you know what the best way is to determine who truly should be notified? We have tons of vendors and suppliers some of which are like Amazon, Staples, etc. that I don’t think this would really apply to.
What’s the best way to make a distinction?
This is an excellent question. OFCCP jurisdiction with regard to subcontracts, vendors, etc. is very confusing often both within and outside of the agency. The core question is whether the contract or agreement is in furtherance of the federal work. If a company provides widgets and a third party vendor supplies the components, then that vendor is likely a subcontractor. If a third party vendor supplies new office furniture, that supplier is not likely a subcontractor and would not need...
I am curious as to the language used to determine if your company is a Federal Contractor. For AAP Coverage under EO11246 it states you are if you have 50+ employees + “A” contract of $50,000 or more. Same for Disability Section 503 and VEVRAA. What if you have several contracts that add up to $50,000 or greater (similarly $150,000)? Is this specific to one contract or the dollar amount of the combination of all Federal contracts?
The guidance from OFCCP specifies a single contract of $50,000 or more as the threshold for developing a written Affirmative Action Program to comply with E.O. 11246: “If a company has at least 50 employees and a single contract of $50,000 or more, then it must also develop an Affirmative Action Program (AAP), as described at 41 CFR 60–2. Companies whose sole coverage comes from construction contracts or federally assisted construction contracts are not required to develop an AAP, but...
If a candidate applies to a requisition, is not qualified but expresses interest in a different open requisition, would their verbal expression of interest be enough for the recruiter to consider for the second requisition? That is, would a recruiter not have to ask the candidate to apply to the second requisition if they verbally expressed interest and how does this affect their status under the internet applicant rule?
Your company has the right to make the decision that candidates may verbally express interest in an open position. It is not a best practice for the reasons noted below, but there is nothing in OFCCP's Internet Applicant rule or any other part of the federal affirmative action regulations that prevents a company from having candidates make a verbal expression of interest. Among the reasons that allowing a verbal expression of interest is not a best practice are the following:...
How are single reqs with multiple hires scrutinized by the OFCCP? For instance, instead of opening five requisitions with the same title, level, requirements, etc. opening only one req with five openings? The latter options would obviously help with recruiter load and help streamline the hiring process but does potentially enlarge the candidate pool and/or is looked unfavorably the OFCCP in an audit?
OFCCP is perfectly happy to have large applicant pools where multiple candidates are hired into an applicant pool. It increases the chances there will be some kind of disparity involving members of a protected classification, which is one of the things that OFCCP seeks during compliance reviews. There is no OFCCP rule that says companies can't hire multiple candidates into one requisition. Thus, in your example above, you can hire five individuals into the same requisition. However, good practice says...
In regards to notifying our subcontractors of our status as a federal contractor under the AAP this is a snippet of what I sent out to them:
“Our records indicate that you have provided goods and/or services to us according to established regulation thresholds under Section 503 of the Rehabilitation Act, as amended and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), as amended. Therefore, please be advised that your organization must also comply with the rules and provisions as specified by the US Department of Labor, Office of Federal Contract Compliance programs at CFR, Title 41, and Part 60-300 and 60-741.
We appreciate your support of our commitment to equal employment opportunity and request appropriate action on your part.”
What exactly are their responsibilities? What “appropriate action” do they need to take?
I just want to know in case they ask.
Thanks
If the company is a covered subcontractor (i.e., they are doing business with a federal contractor or subcontractor), then its obligations for compliance are like that of any covered contractor. Depending on the amount of the contract, of course, they must comply with the laws enforced by the OFCCP. This provision in the regulations puts the entity on notice that they are a covered subcontractor.
Are there any vulnerabilities with the following practice for when multiple quantities of the same position are needed:
Opening and posting one (1) requisition that has five (5) openings. Once five candidates have been identified from this candidate pool, opening four other additional requisitions, duplicating the candidate pool from the initial req in these additional reqs, and then dispositioning one of the five initially identified candidates into each newly created req as “hire.”
A company may hire more than one individual from a requisition. Four new requisitions need not be created for OFCCP compliance. It is a good thing to establish what will happen up front as you have done. The appropriate analyses are to compare those that competed for a position (depending on how the company does its hiring) against each other. Therefore, since there were five hires from the pool, those applicants should be used in any comparative analyses versus conducting...
We frequently post positions to engage candidates for future opportunities associated with bid and proposal activities. These positions could be located all across the United States. Is it necessary to add a new ESDS location/state each time you post a position that is not yet a live job opening?
If these bids were won, the opportunities would become official job openings working in the state the position would be advertised in.
I would appreciate any guidance on this matter.
The regulations require "employment openings" to be listed with the state employment service. It sounds like, from your description above, that your company is not advertising actual openings, but is advertising potential openings, so it does not appear as if the listing requirement is yet triggered. However, if the company were to collect applications to consider for positions if the bid was won later, then I would recommend the company list the jobs at the bid phase consistent with the...
We are looking to do an in person hiring event and our leaders would like to do on the spot offers/letters on intent to hire at this event. While we encourage everyone to complete an online application, we are opening this event up so I imagine we’ll have interested candidates show that may not have an application on file.
Can you offer any guidance on the best way to handle this type of event? Or any resources that may help? Or is it ok to have a contingency letter drafted saying we are interested and want to move forward with you if you meet all the outlined qualifications…
The simple answer to your question is this: you should always make candidates follow your standard process for expressing interest. If you generally require that candidates complete an online application, then you should ask candidates who are at your hiring event to complete the online application. It's not clear from your post above why you are doing "an in person hiring event," and why this would necessitate making immediate offers to candidates. There certainly are circumstances in which companies want...
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