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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.

Contract staffing agencies

Asked By Jennifer L. on Jul 24, 2018

When using agencies for temporary roles, what are our requirements in terms for the contract with the agency (what language should we have listed in the contract)? What are the things we need to ensure they are doing/documenting?

Thanks,

Answered on Aug 10, 2018

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

If your company is a prime federal contractor, you are required under the regulations (§60-1.4 Equal Opportunity Clause) to include in all of your subcontracts and purchase orders, unless exempted, the provisions stated in paragraphs (1) through (8) such that these will also be binding upon your subcontracts and vendors. These provisions cover non-discrimination, affirmative action, including an EEO tagline in all solicitations for advertisement, recordkeeping, as well as reporting. The regulations also specifically address the use of staffing or...

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1 Answer

Resume Database Search / Internet Applicant Rule

Asked By Anonymous on Jul 31, 2018

As federal contractors, are we required to disposition the candidates we review in a resume database?

Answered on Aug 10, 2018

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

OFCCP’s Internet Applicant Recordkeeping Rule requires federal contractors to save certain records when they conduct resume database searches, whether it is an internal or external database. When searching within your applicant tracking system or internal resume database, the records you need to keep are as follows: • A record of each resume added to the database • A record of the date each resume was added to the database • A record of the position for which each search of...

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1 Answer

Using Disposition Code “Not Selected: Experience Overly Extensive”

Asked By Donna R. on Aug 02, 2018

In other words, the candidate is “over” qualified. This would be the perfect code for our needs, but is it advisable to use? I saw this as an example from another company, but thought it sounded discriminatory? Please advise. Thank you.

Answered on Aug 10, 2018

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

The use of disposition codes help you document the reason why an applicant fell out of consideration for the position. They should help you justify your selection decision if you have to defend it. Employers need to be careful about using disposition codes that may disproportionately exclude certain individuals. You are much better off using strategic disposition codes that better identify why a candidate is not qualified, or why a candidate is less qualified than the individual you selected, such...

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1 Answer

2 Week Posting Requirement

Asked By Anonymous on Aug 09, 2018

I’ve found it before but having trouble on the OFCCP site finding the REG that shows the requirement to post jobs for a minimum of two weeks. Can some send me the link to that verbiage?

Answered on Aug 09, 2018

David Cohen - President and Founder, DCI Consulting

Here is a link to the regulation that requires the job listing but there is no requirement to list the job for two weeks. 60-300.5 Equal Opportunity Clause - https://www.ecfr.gov/cgi-bin/text-idx?SID=afb08cd93b5e878cec05dec64d64486c&mc=true&node=pt41.1.60_6300&rgn=div5#se41.1.60_6300_184

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1 Answer

Jobs with multiple locations

Asked By Natalia F. on Aug 10, 2018

We are expecting a contract that will have task orders issued in different regions across the US (Virginia, Ohio, Texas, Colorado, Maryland, Washington DC and Illinois) and we would like to build a pipeline of candidates for the possible positions coming in the future, all position listed as contingent.
We have presence in all these states. There are a total of 40 possible openings the majority of them with Secret Clearance as requirement.
Are we able to post one job per job title and state that we are accepting applications and that the work could be in multiple states (listing out the states) or do we need to do an opening per job per location?
Thanks for your help.

Answered on Aug 17, 2018

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

Hi Natalia, There is no requirement to have jobs listed by location. A company can certainly be within OFCCP regulations if it posts a job which states that the work could be located in multiple states (and any other requirements, such as clearance level, for the job). The only tricky part might be if your company has more than one AAP. You would just want to make sure that the applicants and hires align with the appropriate AAP (as well...

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1 Answer

Record Retention

Asked By Michelle H. on Aug 21, 2018

How long do you need to keep records of those applicants that did not show for a drug test or those applicants that failed a drug test and/or background check?

Answered on Aug 21, 2018

David Cohen - President and Founder, DCI Consulting

60-1.12 - Any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of not less than two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making...

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1 Answer

Demographic Data Collection

Asked By Lisa G. on Aug 21, 2018

As a federal contractor, we are required to collect data from applicants and employees in regard to their race/ethnicity, gender, disability and veteran status. While applicants and employees have the right not to disclose their demographic information, we as an employer, are required to collect and report. This has caused some problems for us an employer when it comes to submissions of reports with missing data. What advice do you give in regards to increase applicant/employee response participation? We have tried educational campaigns but that hasn’t made resulted in a huge percentage increase and we do not feel comfortable doing a visual identification (still can’t wrap my head around that). Also at what point do inquiries/requests to update their information cross the line when it comes to the General Data Protection Regulation (GDPR)? Thanks in advance for any advice you can provide.

Answered on Aug 22, 2018

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

You mention that you have tried educational campaigns with your employees. I recommend the following video to my clients, as it is short, provocative, and to the point: https://www.youtube.com/watch?v=qPVRhHB9fXs. I also recommend asking all employees, once a year, to verify that all personnel info, including demographic info, is up-to-date. While we can't require them to self-ID, we can require them to review their record. When it comes to applicants, OFCCP only asks that we do our best to obtain the...

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1 Answer

Co-Ed Housing

Asked By Anonymous on Aug 24, 2018

We have overseas deploying contracts where personnel are housed in off-base villas/apartments. We have looked up law to local areas regarding cohabitation, and understanding some countries do not allow males and females to be housed together if not married.

As a company, are we required to secure housing for both males and females (even if it will not be utilized the entire time of lease) due to the makeup of the team. In other words, do we need to have additional apartment/villa rented to ensure there is separate housing for males and female in the event the team deployed will be comprised of both males and females. Personnel change approximately every 90 days, but the lease is a minimum of six months.

Answered on Sep 04, 2018

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

This is a bit out of my area of practice, but I expect that it would depend on the host country laws and any applicable contracts.

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1 Answer

Walk-in applicants

Asked By Alisha S. on Aug 31, 2018

We currently take online applications only. So, we provide a card to people who inquire about jobs, with our web address for them to apply. Managers within the company have requested a solution for applicants who walk into our office to be considered while there on the spot. As we look to build a plan for handling this request, what do we need to be aware of with regards to OFCCP? I had always been told it was best to be consistent, if using online applications, do that exclusively, but I don’t know if there is more flexibility than I know of?

Answered on Sep 04, 2018

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

Hi Alisha, You are correct in that it is best to be consistent. If walk-in applicants are considered "on the spot," then it appears they may have preference and could lead to concerns by OFCCP, or at least a closer look. However, if there is a legitimate business need to hire people quickly, it can be done, but I recommend the company proceed carefully. Ensure that there is a process. How the company develops the hiring process is dependent on...

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1 Answer

Federal Contractor Requirements

Asked By Pamela C. on Sep 06, 2018

I have several questions.

1. If a job is posted on the company website and the state board. Then the posting is closed for whatever reason (a candidate was hired; the position was closed temporarily; whatever) and then the hiring manager wants to re-open the job does it then become a new posting requiring it to be posted on the state job board?

2. If a job is posted open on the company website and the state board of a particular state but the hiring manager then finds a candidate he likes and tells them to apply, but will now be home based at a different office in a different state, does that job need to be posted in the state where it will actually be based? Such as, a job posted in Georgia, but the person they like lives in Florida and will be home based in Orlando rather than Atlanta.

3. If the OFCCP were to audit a company, do they expect to see the job posting requisition, verification the position was posted on the state board and when/why is was closed?

4. I have always heard that the OFCCP strongly discourages applicants to be manually forwarded from one job posting to another; that it is strongly recommended the applicant applies to each position they are interested in or being hired for? Can you comment on the practice of a company forwarding applicants from one position to another or from a closed position to an open position?

Answered on Sep 15, 2018

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

Hi Pamela, 1. Although arguably no in certain situations, the best practice would be to post the job again with the state employment service. This would ensure compliance in this area in case of an audit versus having to debate the circumstances of reopening the posting. 2. The scenario described above is not a recommended practice and would likely lead to concerns by the agency in an audit. However, for remote or variable (telework) locations, according to the OFCCP's FAQs,...

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1 Answer

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

Angel Fischer

Angel Fischer

Bill Osterndorf

Principal Consultant, DCI Consulting Group, Inc

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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