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Ask The Experts

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.

Sourcing requirements for a pipeline

Asked By Anonymous on May 29, 2018

We want to create a pipeline of candidates for roles that we commonly recruit for but are not yet actual jobs. When the job opens, we have the candidate from the pipeline apply directly to the new job posting, and document our search in the internal pipeline database. (Including date, search criteria, etc.)

Do we need to also document our sourcing when we are ONLY sourcing for the pipeline itself?

Answered on May 30, 2018

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

Yes. I would absolutely recommend documenting this very well. This practice could expand the applicant pool in an audit, so it needs to be documented well, including, but not limited to, how long applications in the pipeline remain active, for what jobs, and the process for establishing who to contact and what the process is to notify them of an opening. I'd recommend talking thru the specifics a bit with your labor counsel.

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OFCCP Question

Asked By Jill M. on 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?

Answered on Jun 01, 2018

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

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...

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State site job posting duration

Asked By Anonymous on 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.

Answered on Jun 09, 2018

Roselle Rogers - Vice President, Diversity, Equity, and Inclusion, Circa

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...

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Requiring US Citizenship and active clearance

Asked By Samantha D. on Jun 04, 2018

Is there a best practice tagline for requiring U.S. Citizenship and active DOD Clearance on job postings?

Answered on Jun 04, 2018

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

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:

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Applicant Flow Tracking

Asked By Anonymous on Jun 05, 2018

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 on Jun 06, 2018

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

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,...

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Union & Subcontractor Conciliation Obligations

Asked By Anonymous on Jun 28, 2018

We are a subcontractor and are also union. We have a conciliation agreement and an obligation to direct recruitment efforts to minorities and women – However, we do not currently have any available openings. How do we best execute the obligations of this conciliation agreement without a job to advertise/recruit for? Thank you!

Answered on Jul 06, 2018

Roselle Rogers - Vice President, Diversity, Equity, and Inclusion, Circa

Generally speaking, action in compliance with the conciliation agreement would be triggered when your company has a vacancy or begins to recruit applicants. However, the requirements for construction contractors do vary from those of supply and service contractors, as there are additional union record keeping requirements that apply to construction contractors. Contractors with a federal or federally-assisted construction contract or subcontract over $10,000 are required to comply with the Sixteen Specifications, which are the affirmative action steps listed in 41...

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Applications for Employment

Asked By Anonymous on Jun 26, 2018

We have just implemented the Applicant Tracking System. Previously we utilized a hard-copy attorney-approved application for employment, which was signed by the applicant in receipt of FCRA disclosure, and attesting to truthfulness of info within the app. With this electronic process, there is no more signature. Are we sufficiently covered as far as risk mitigation is concerned since there is no signature anywhere?

Thank you

Answered on Jul 06, 2018

Roselle Rogers - Vice President, Diversity, Equity, and Inclusion, Circa

The Federal Trade Commission (FTC) which enforces the Fair Credit Reporting Act (FCRA) requires that employers who are securing background information (such as a credit report) from companies who are in the business of compiling background information (such as a credit reporting agency), must notify applicants in writing that they might use the information obtained in making an employment decision. This needs to be in writing and in a stand-alone format. The FTC also further states that this notice cannot...

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Best practice on hiring an intern to full time

Asked By Samantha D. on Jul 11, 2018

We’re a government contractor and every year we bring on a cohort of paid, summer interns. Each intern formally applies to our company for the internship position. At the end of their internships, we make full-time offers to some of the interns. What is the best practice in terms of converting them to full time employees at the end of their internships? Does each intern need to apply again to a full-time open requisition? Do we need to open and compete requisitions that we know these interns will fill since they’ve been already working for us? Can we simply add them as full-time staff without having to open a full requisition?

Answered on Jul 12, 2018

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

Hi Samantha, Assuming there are distinct criteria for hiring the interns (from your other hires), they are likely their own pool of applicants and hires for such purposes as your adverse impact analysis and record keeping requirements. Once interns are brought on as employees, if a company converts them to full time, they are more likely to fit your definition of a transfer or promotion. If there is a break in employment, then they need to apply and be hired...

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Exempt Vs. NonExempt

Asked By Anonymous on Jul 17, 2018

We are trying to understand best practice with a position we’re posting in regards to Exempt vs. Nonexempt and FLSA. The position is a Talent Acquisition Coordinator/HR Admin. This position is the entry point for our company – it’ll be the lowest level position at the company (private, DOD contractor). The role is complex because it’ll be supporting both talent acquisition and HR administration. The salary range will actually be in the mid – upper $50k’s. While it is the entry point in the company, this individual will support multiple HR functions. There are currently no other roles at that level in the company. Should it be exempt or nonexempt?

Answered on Jul 25, 2018

Carey Freitag - Human Resources Manager, Circa

In order for a position to qualify for exemption under the Fair Labor Standards Act (FLSA) minimum wage and overtime pay requirements, the job duties and salary must meet the test specified in the regulations. The FLSA allows for the exemption of bona fide executive, administrative, and professional positions as long as they meet the requirements. Other positions may also qualify for exemption as listed in the FLSA guidelines. Based on your description of the position, the Administrative Exemption test...

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Asked By Michelle H. on Jul 24, 2018

We are looking at setting up a pre-screen questionnaire for our Machine Operators as part of the pre-interview selection process. Does the AA information need to be gathered at this level or only when a formal application is submitted?

Answered on Jul 24, 2018

David Cohen - President and Founder, DCI Consulting

Hi Michelle, Under the Internet Applicant regulation you would need to collect race/ethnicity and sex data from those individuals that were provided the pre-screen questionnaire as it would most likely be considered a test. If your pre-screen questions only assess if the individual possesses the basic qualifications you would not need to collect race/ethnicity and sex data as those individuals that do not meet the basic qualifications would not be considered applicants.

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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

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.

Roselle Rogers

Vice President, Diversity, Equity, and Inclusion, Circa

Stephanie Stahr

Senior HR Consultant, Berkshire Associates

William E. Doyle, Jr., Esq.

Former Deputy Director, OFCCP Partner, McGuireWoods LLP

Zoe Ann Whitley

Manager, Consulting Services, Affirmity

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