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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.

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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EEOC Claims in 2018

Asked By Anonymous on Aug 20, 2019

Do we know what percentage of EEOC claims filed in 2018, stemmed from hiring irregularities?

Answered on Aug 26, 2019

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

The EEOC publishes Enforcement and Litigation Data on its website. Currently, you can view data from FY2009 to FY2018. In looking at the charge statistics by issue, there were a total of 5,900 charges filed in FY 2018 that were classified under “Hiring.” The number of hiring claims filed under each statute are as follows: Title VI - 2,665 ADEA - 1,884 ADA - 1,291 EPA: 10 GINA: 50 This represents roughly 8% of the 76,418 total charges filed with...

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Must we track candidates sent to us by a 3rd party recruiter who are not qualified?

Asked By Beth C. on Apr 17, 2019

We work with a number of outside recruiters. They will send us resumes of potential candidates for a posted job. If the candidate they send is deemed not qualified (based on some factor like experience, education, lack of license, salary requirements), do we need to include that candidate in our Applicant Tracking System (we currently import any candidate sent from a recruiter into our ATS and then have the candidate formally “apply” if we decide to interview them)? Or, if we are not interested in the candidate from the recruiter, can we just tell the recruiter “no thanks” and not bring that candidate into our ATS?

Answered on Apr 23, 2019

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

This question has many layers. You, as the contractor, are responsible for the actions of the outside recruiters. The outside recruiters, standing in for you -- the federal contractor -- are responsible for obtaining demographic (race, gender, disability status and veteran status) for all candidates that they believe meet the minimum qualifications. A best practice is to have the recruiters ask all interested applicants to apply to the ATS, as OFCCP may ultimately have a different determination regarding minimum qualifications.

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Out-of-state candidates

Asked By Jane B. on Aug 28, 2019

When we have a position posted and have no intention of offering relocation or paying for a candidate to travel for an interview, must we consider candidates who are outside of a reasonable commuting distance? Is asking the following question sufficient?

Your resume indicates that you are in Shreveport, LA. Are you planning to relocate to WI in the near future? Or are you planning to relocate to wherever you find a position?

Answered on Aug 28, 2019

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

The key is to handle all out of state candidates the same. Your questions are appropriate, but they must be asked of all out of state candidates. Alternatively, you could decide not to interview anyone outside the commuting area, but I prefer your approach, as you could otherwise be eliminating candidates already headed your way.

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Section 503 Communication Question

Asked By Martha S. on Apr 22, 2019

I believe the 5 year period is almost up with regard to asking our current employees to complete the post hire Voluntary Self ID of disability form and the VEVRAA Invitation to self ID for protected vets form. And as I understand it, our company needs to invite all current active employees to complete this paperwork again – for the Section 503 that the OFCCP is looking at very closely now with their audits.

My question is: How does this request get communicated? Should it come from our President or owner explaining why the OFCCP looks at this? And is the reason this gets audited is because the government wants to make sure we, as a government contractor, are hiring enough people with disabilities and protected veterans?

Do we also need to have something about Section 503 in our employee handbook?

Thank you!

Answered on Apr 24, 2019

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

There are a variety of methods that companies use to communicate this obligation. As you are probably aware, you must use the language and manner prescribed by the Director and published on the OFCCP Web site, that is, the OFCCP solicitation form. It is appropriate to take the language from the form (copied below) to communicate to employees. There is no requirement in the laws and regulations enforced by the agency that it come from a particular person or position....

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Tracking of “Pipeline” Candidates

Asked By Anonymous on Aug 30, 2019

We actively search for candidates using various sites. When we find candidates that might be a good fit for a future opening, we enter their information into our ATS and use a specific source code of “manual add” to identify that the individual did not apply for a position but, rather, was manually added by a recruiter. Is this an acceptable tracking mechanism or should we track them outside of our ATS altogether? Thank you for your insight!

Answered on Sep 04, 2019

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

Yes, you can use your ATS to collect candidates from various sites into a pipeline, and an annotation of "manual add" within the ATS is a good record keeping practice. The individuals you add are not Internet Applicants, though, until you actually consider them for a particular vacant position and they express an interest in the opportunity. If the manual add flag is a signal to you that you still need to get the candidate to express interest (to apply...

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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.

Roselle Rogers

Vice President, Diversity, Equity, and Inclusion, Circa

William E. Doyle, Jr., Esq.

Former Deputy Director, OFCCP Partner, McGuireWoods LLP

Zoe Ann Whitley

Manager, Consulting Services, Affirmity

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