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.

Record Retention of Demographic Info.

Asked By Anonymous on Nov 08, 2018

We recently changed HRIS systems to Paycom. Our new onboarding process enables new hires to complete required forms as it relates to OFCCP and EEO compliance. They can electronically complete Vets and Disability required forms and it is then housed in the document section of their electronic file. My question is, for auditing purposes do we need to print out a hard copy of the Vets and Disability form for each person and keep it in a separate file as in the past, or can we simply print it from that person’s document section if it is requested.

Thanks for your help.

Answered on Nov 15, 2018

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

OFCCP issued a Frequently Asked Question on this topic. In the FAQs for Section 503 (Rehabilitation), under the topic of Self-Identification, #5, OFCCP gives employers the option to store the electronic record and print it out if requested. There is no requirement to print out a hard copy of each form and store it in hard copy in separate files as was done in the past: FAQ5. What information must a contractor store in order to demonstrate its compliance with...

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Compensation Equality

Asked By Christina S. on Nov 08, 2018

Our company has a large IDIQ contract where tasks are frequently being awarded. Often times, we are able to negotiate rates on these new task awards based off of current market value. We are currently able to keep the salaries generally similar with a few justifiable exceptions. However, the current job market for certain labor categories is VERY competitive. Companies are paying higher than market value to attract employees. This, of course, creates an issue for us when it comes to retention and negotiation of salaries for new employees. We believe we will be able to obtain an equitable adjustment from the government on our rates but need to be able to attract new talent until that adjustment is granted.

So, my questions are these:
1. How can we justify a higher salary for employees on the new task who have the same labor category, description, education, and experience requirements as those on older tasks until the equitable adjustment comes through?
2. If we are audited during the time we are waiting for the adjustment, will we be found to be non-compliant?

Also, we have been reading the new OFCCP guidelines. How does a company create a PAG if there are less than 20 employees in any one group?

Answered on Nov 15, 2018

David Cohen - President and Founder, DCI Consulting

As long as the higher salaries are based on a business necessity and are done in a non-discriminatory manner and/or have an impact on protected groups this would not be a problem under EO11246. Remember that OFCCP is not the "pay police" but tasked to evaluate compensation to ensure that it is administered in a non-discriminatory manner. As for the compensation directive, if you have a very small workforce it may not be possible to put together groups of employees...

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Collecting Transcripts

Asked By Anonymous on Nov 14, 2018

I work for a DOD contractor in which we primarily hire software engineers. Every summer, we hire a new cohort of new graduates to join our company. Before we make individual offers to these recent graduates, we collect their academic transcripts for review. Currently, only HR (and occasionally the hiring manager) have access to the transcripts. We are generally looking for GPA’s above 3.0 and that the students did well in their engineering classes. However, our interviewers are requesting to see the transcripts in advance of the interview, and in addition to the resume. In other words, when sending our interviewers a calendar item for the interview, the interviewers would receive the candidate’s resume and transcript. For candidate privacy, do you see any issue with the interviewers (a broader scope than HR) having access to the transcripts? My concern is that information on the transcript will create a bias in the interviews. I am also concerned that if a candidate is not able to send his/her transcript, we are not conducting all interviews equally. If it is permissible to allow interviewers to access the transcripts, should HR inform the candidate that their transcripts may be sent to the interview team? Thank you. 

Answered on Dec 03, 2018

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

Since this is a question about privacy versus OFCCP compliance, it is a bit out of my area of expertise, but I want to give you some information at least, from a compliance perspective. Any time a company is reviewing job qualifications, it is important to understand why the criteria are what they are. In other words, why is a 3.1 acceptable for a new hire, but not a 2.9? What is the definition of "did well" in engineering classes?...

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Self-identification and Employee Self Service

Asked By Anonymous on Nov 16, 2018

We are looking at turning on our employee self-service which would allow employees access to their personal data and potentially to update their personal information (address, SS#, DOB, etc.). One of the screens includes fields for veteran, race, gender and disability status. I know that the OFFCP has set explicit requirements around using the OMB established form or adhering to the font, size and text specifications, but didn’t know how this impacts HRIS systems. Are we required to offer that form electronically or hard copy anytime an employee wishes to self-identify? If that is the case, I would imagine these fields would need to be hidden from view. We have a hard time getting employees to self-identify. It would be nice to offer them the option to go in and update their information without having to go through HR.

Answered on Dec 03, 2018

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

It would be a nice option, but OFCCP requires that its OMB approved form be used for any self-identification regarding disabilities. As you noted in your question, any electronic copy of the form must: Display the OMB number and expiration date; Contain the text of the form without alteration; Use a sans–serif font, such as Calibri or Arial; and Use at least 11–pitch for font size (with the exception of the footnote and burden statement, which must be at least...

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AAP Advice

Asked By Anonymous on Nov 29, 2018

We are a non-profit servicing elders and disabled that recently aquired another non-profit agency in the same sector. This new acquisition received notice of an OFCCP audit. The last AAP plan in place is dated 2016. They have no ATS in place and no applicant data at all aside from 3 boxes worth of hardcopy applications. How do I go about creating an AAP with no applicant information or virtually no information aside from current employee data? The plan would essentially be incomplete. Do you suggest we take the time to input all of those paper applications? How do you suggest I tackle this and what should my first steps be?

Answered on Dec 03, 2018

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

In an audit, it is imperative that the Affirmative Action Plan and support data be as complete as possible. According to the rules and regulations enforced by the OFCCP, a lack of data can be a real problem for any company. I suggest you take a look at availability data as well to identify problem areas - this is what the agency typically looks at in an absence of data. You may want to seek assistance from a professional that...

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Job Application Statement of Accuracy Compliance

Asked By Chelsea B. on Dec 13, 2018

Hi there!

We are currently updating our company’s job application with a ‘Statement of Accuracy’ at the end, basically stating that all information is correct, this application doesn’t guarantee employment, etc. etc. etc. We have the option to just select ‘Yes’ from a drop down when asked this question, OR select ‘Yes’ AND type their name. Does anyone happen to know if it is required to write your name, or if clicking ‘Yes’ would suffice? we just want to make sure that we are following correct protocol and staying in compliance.

Thank you!

Answered on Jan 07, 2019

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

Depending on your state location, it may or may not be acceptable. There may be certain laws in your state that require that the applicant initial the certification or write in their name. Many states have state-specific laws on various aspects of information that are requested on an employment application as well as required disclosures. So be sure to check that your employment application complies with the employment law in your state or jurisdiction. If you are a multi-state employer...

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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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