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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.

We receive grant funding. Are we a federal contractor for the purposes of OFCCP’s website registration and AAP compliance?

Asked By Anonymous on Feb 25, 2022

Just looking for a professional opinion… I have found a legal opinion on the Dept. of Labor website (specifically referring to Pell Grants) addressing whether or not grant funding is considered a federal contract for the purposes of OFCCP/AAP compliance. The funds we have primarily received in the past are WIOA funds and other job-related grant funds. Last year, though, we received a substantial grant through ARPA. We received the email from OFCCP regarding the registration on the Contractor Portal/AAP compliance. I believe that this email was sent out generically to all recipients of federal funds regardless of purpose. In the opinion letter issued in May 2019 the term contractor does not extend to arrangements in which the primary purpose is extending help or support by conferring grants or other benefits under Federal assistance programs. Can you confirm or deny my thought process that we do not have to comply with the registration or the AAP compliance. I believe, also, that, due to the fact that we are well under the 50 employee count, this also exempts us from compliance. Thank you for your time.

Answered on Feb 26, 2022

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

An employer with fewer than 50 employees is not required to prepare AAPs. You should not register in the OFCCP's Contractor Portal.

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1 Answer

EEO Voluntary Self Identification Form

Asked By Anonymous on Feb 18, 2022

Hi there,

Hoping you can advise on the right statement we should be using for our EEO Voluntary Self-Identification Form.  We are currently using: Because Lifespark is a Federal contractor, we are obligated to request that all candidates fill out and submit the attached form for our records. The data collected in this form will not be considered in the hiring process or thereafter. Any information that you do provide will be recorded and maintained in a confidential file.

Is there a better statement to use?

Answered on Feb 18, 2022

Julia Mendez Achee - Senior Consultant - EEO/Affirmative Action Division, Biddle Consulting Group

The obligation is that you give applicants (and employees) the opportunity to voluntarily self-disclose race/ethnicity, sex, disability status, and veteran status. They are not required to fill out the information since it is voluntary. Here is language commonly used along with the self-identification form. "When you apply for a U.S.-based job with COMPANY, the federal government requires us to ask you for information such as gender, ethnicity and race, disability, and veteran status. Sharing this information is completely voluntary. Declining...

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1 Answer

Candidate Dispositioning

Asked By Anonymous on Feb 02, 2022

Looking for some counsel. New to a company and need to do dome historical cleanup of candidates who never reached a final disposition status in closed reqs.

Is it more risk to leave these as is? Or more risk to disposition these candidates, even if we may be “guessing” what the correct disposition should be? (recruiters are gone, we don’t have historical intel…)

Can you advise?

Thanks!

Answered on Feb 02, 2022

Julia Mendez Achee - Senior Consultant - EEO/Affirmative Action Division, Biddle Consulting Group

Unfortunately, what you describe is an issue that I have come across quite a bit over the last 27 years of consulting with federal contractors. The perfect scenario would be that all persons who applied were given a disposition that was clear enough to determine if they are an internet applicant. Only those that pass the internet applicant rule are counted in the applicant/hire analysis. However, in this situation where not everyone was assigned a disposition code and there is...

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1 Answer

Recruitment Data Management Technique

Asked By Anonymous on Jul 26, 2019

We are considering the use of a data management technique to manage the applicant pool for high volume positions. Would an acceptable technique be to FIRST consider any applicants that have a particular certification and THEN sort the remaining applicants in date order and review them in groups of 25?

Answered on Aug 06, 2019

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

If there is an automated way to screen for the certification, then this method would work. It is perfectly acceptable to use "search criteria" to narrow the initial pool. However, once you begin reviewing the applications, you have entered the first tier of evaluation.

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1 Answer

National VEVRAA Hiring Benchmark

Asked By Anonymous on Mar 27, 2019

The 6.4% benchmark for 2018 is based on the national percentage of vets in the civilian labor force. We are able to establish our own benchmark based on data from the BLS (Bureau of Labor Statistics) and the Veterans Employment and Training Administration (VETS/ETA) as well as other factors (I am assuming this can mean geographical) that reflect our unique hiring circumstances. If anyone has their own custom benchmark set up, can you share the resource(s) you used to create the benchmark?

Answered on Apr 23, 2019

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

OFCCP recently announced that the new VEVRAA hiring benchmark has decreased to 5.9% effective March 31, 2019. For contractors choosing to develop their own benchmark, OFCCP provides some helpful resources on its VEVRAA Benchmark Database page, including the factors to consider as well as examples to illustrate the methodology for establishing the benchmark.

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1 Answer

Dispositioning Applicants

Asked By Krystal G. on Aug 01, 2019

Do all applicants need to be dispositioned? If so, does ‘not meet basic qualifications’ suffice?

Answered on Aug 06, 2019

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

YES, if you mean “job seekers”, Krystal. And NO, I’m sorry but “does not meet basic qualifications” will not suffice as a disposition for some job seekers and it will NOT suffice for ANY “Internet Applicants”. But I hope you’ll be glad that there is a much more detailed answer to follow, along with a discussion of the term I think you meant instead of “applicant”, that term being “Internet Applicant”, because that term as well as the term/concept and...

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What is covered in a compliance check?

Asked By Anonymous on Mar 27, 2019

I’m having difficulty finding out exactly what will be asked for in an OFCCP compliance check. I know that they will request our latest AAP, but is there anything else we should expect? Any guidance is appreciated. Thanks!

Answered on Mar 29, 2019

Bill Osterndorf - Principal Consultant, DCI Consulting Group, Inc

Actually, OFCCP will NOT ask for your most recent AAP during a compliance check. According to the compliance check letter that OFCCP has on file with the Office of Management and Budget, the agency will ask to see the following items: "1. AAP results for the preceding year (41 CFR §§ 60-1.12(b); 60-300.44(f)(4)and 300.80; 60-741.44(f)(4)and 741-80). 2. Examples of job advertisements, including listings with state employment services (41 CFR § 60-1.12(a), § 60-300.80, and § 60-741.80). 3. Examples of accommodations...

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1 Answer

Resume Database Search

Asked By Anonymous on Jul 26, 2019

Are we required to maintain records of external resume database searches regardless of whether the candidate(s) actually ends up applying (i.e. expressing interest) to the position through our applicant tracking system (ATS) and indicates they meet the minimum qualifications of the job? In other words, should our sourcing specialist be keeping records of all database searches that she is conducting on Indeed, ZipRecruiter, LocalJobNetwork, Facebook, etc.?

Answered on Aug 06, 2019

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

Yes. For external resume databases, contractors must retain all expressions of interest considered for individuals who meet the basic qualifications for a particular position, even those of individuals who are not Internet Applicants. Contractor must maintain a record of : -Position for which each search was made -Substantive search criteria used in each search -Date of search -Resumes of any job seekers who met the basic qualifications for the particular position who are considered by the contractor (even if they...

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1 Answer

Job Groupings

Asked By Anonymous on Mar 29, 2019

Hello,

1. How do you generally recommend we set up job groupings for a multi-site organization from an EEO-1 perspective?
2. When we have sites that are less than 50 people I don’t believe we are required to report those statistics. Is that your understanding? Do we need to report that information anywhere?

Thank you!

Answered on Mar 29, 2019

Bill Osterndorf - Principal Consultant, DCI Consulting Group, Inc

First things first: if by "How do you generally recommend we set up job groupings" you mean "How do we establish job groups for our federal affirmative action plans?", job groupings should be specific to each individual AAP. OFCCP does not conduct compliance reviews by organization; it conducts compliance reviews by "establishment." The Executive Order 11246 affirmative action plan that is prepared for any given establishment should be specific to that establishment. The narrative should reflect what is occuring at...

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Application Process Review

Asked By Anonymous on Aug 06, 2019

We are having applicants apply through LinkedIn’s portal, but understand all applicants need to go through the same application process. Would we be compliant if we than have applicants we speak with apply through our standard application via our ATS once we have connected with applicants applying through LinkedIn?

*We have seen a significant decline in applicants when redirecting them back to our web portal to apply rather than simply having them initially apply through LinkedIn’s process.

Answered on Aug 06, 2019

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

Because you are screening applicants who apply through LinkedIn, we apply the Internet Applicant Rule at this point. So, you would need to track all applicants who meet the minimum qualifications, whether or not you "speak" to them. From OFCCP's perspective, this is the first tier of evaluation. If you require all LinkedIn applicants to go through the ATS, this would be the second tier of evaluation.

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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

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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